A Case Against Constitutional Interpretation: Expanding Upon Sontagian Theory

By Halle Miller

In a political op-ed published by NBC in July 2022, author Bayard Woods wrote that “[constitutional] originalism is patriarchal white supremacy.”[1] With the recent overturn of Roe v. Wade, discussions of constitutional interpretation have arisen in mainstream media, without providing ample knowledge of jurisprudence. The majority court opinion published on June 24, 2022, stated that “the weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.” The language used in justifying the decision to overturn Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey indicates the current strength of an originalist interpretation of the Constitution in the court. In considering fundamental documents like the Constitution, expanding beyond the thinking of literary theorist Susan Sontag, interpretation is predominantly negative. Susan Sontag was an American writer, philosopher, and political thinker; Sontag was primarily an essayist, with Notes on Camp being among her most renowned work. In Sontag’s 1961 essay Against Interpretation, she examines how imposing stringent or incessant interpretative lenses upon art causes form to become lost and taints the artistic tradition. Sontag’s theory of the harm interpretation causes to understanding and experiencing art can be directly applied to twenty-first-century constitutional interpretation.

Sontag writes, “interpretation thus presupposes a discrepancy between the clear meaning of the text and the demands of (later) readers.”[2] While interpretation seeks to resolve discrepancy, discrepancy should be analyzed and amplified. In the case of the Constitution, discrepancy indicates societal progress and perhaps signals a reconsideration of how useful the centuries-old document is for making policy decisions today. The demands of later readers of the Constitution remain unmet due to the forces of the two prominent interpretative lenses: constitutional originalism and living constitutionalism. Sontag notes that “interpretation is a radical strategy for conserving an old text, which is thought too precious to repudiate, by revamping it.”[3] Originalists and living document theorists alike consider the Constitution precious. Though living document theorists allow for some “revamping” of the Constitution through interpretation, the core document still remains an authoritative and sometimes oppressive force through interpretative devotion to content. Both the originalist and living constitutionalist interpretative lenses hinder progress and uphold a document that may no longer be fully relevant in its current state. Instead of a new method of interpretation, following the logic proposed by Sontag, the form of the Constitution should be considered. Thus, when issues of this strange new world arise that could not have been envisioned by the founding fathers, we need not guess what their stance would be or twist ancient texts to fit modern needs. 

Against Interpretation by Susan Sontag first edition cover (1996) , https://en.wikipedia.org/wiki/Against_Interpretation

Susan Sontag Applied to the Constitution

Beginning from the earliest interpreters of art, in Against Interpretation Sontag challenges the interpretative boxes that experiencing art is confined to. Based on mimetic theory, Plato deemed art useless and deceptive, and Aristotle based his assessment of artistic value on the emotionally driven cathartic experience. Though Western consciousness has progressed past mimetics in artistic critique, the pendulum has swung too far in opposition toward an unsubstantiated and problematic focus on artistic content. The core of modern artistic theory favors subjective expression as the hallmark of art. Yet form and content have become diametrically opposed, with content being placed higher than form on the now hierarchical consideration of the elements of art. Art has essentially become conflated with content, pushing form entirely to the wayside. Now, art must be defended in order to cut through the lens of oppressive interpretation to reassert the importance of form. The main vessel of the prominence of content is interpretation. Interpretation can be used to impose any message onto any work of art. In a pro-interpretation society, ancient texts are kept relevant because interpretation twists the original meaning to fit specific contexts. Thus, interpretation is “reactionary, impertinent, cowardly, stifling.”[4] Sontag ultimately calls for liberation from interpretation by giving more emphasis to form, through developing a better descriptive vocabulary for form. Summed up through the idea of transparency, the experiential elements of art should be given equal value to the content-related elements.[5]

"Susan Sontag 1979 ©Lynn Gilbert crop" by User:LynnGilbert5, licensed under CC BY 4.0. https://creativecommons.org/licenses/by/4.0/?ref=openverse. 

Though the Constitution is not narrative, or overtly artistic, it still has form. Past the nuance, interpretations, and loopholes forged by a modern audience, to understand form one can ask: what are the core themes of the document, and how are these themes communicated? What feelings are evoked when reading the document? One should not get lost in a conversation about subjectivity versus objectivity. While one may argue for a single correct manner of interpretation, one correct way to experience form may not exist. Form is less about the author's intentions in the content, and more about the author’s choices in communication. Form is the arrangement and effect of content. Looking to the preamble as an example, a major aim expressed by the drafters of the document is to establish Justice.[6] Though simply stated, the question that follows is vital and profoundly important: what is Justice? Debates about the true meaning and proper inaction of Justice rightly follow. However, the core idea of Justice is invariably embedded in the form of the document.

Constitutional theorist James E. Fleming writes that “The Constitution is a framework or scheme of abstract aspirational principles and ends, not a code of detailed historical rules.”[7] Fleming asserts that originalist interpretation loses the form of the document. It is the abstract principles—aspirational concepts—that constitute the form, and the detailed historical rules that constitute the content. Moving forth from this assumption, Fleming argues that reading and applying the constitution requires “judgments of moral and political theory about how those principles and ends are best understood and realized.”[8] Lawmakers and constitutional interpreters alike are overly occupied by the detailed historical rules of a document that became so quickly outdated that it needed to be amended not even five years after its ratification. Though the Constitution was designed to be amended in order to account for progress, I would argue that the tools of amendment are not used to their full ideal capacity. America has progressed immensely in standards and values since the last constitutional amendment in 1992, which concerned compensation for Senators and Representatives.[9] Since the last constitutional amendment, Obergefell v. Hodges held that the Fourteenth Amendment requires states to license and recognize same-sex marriage, the Black Lives Matter movement shed new light on the injustice of police brutality, and the advent of social media has allowed for greater awareness of institutional sexism, like the exposure of Hollywood in #metoo. The process of amendment embedded in the Constitution has not kept up with the flow of progress. America is now even further removed from the standards, values, and realities of day-to-day life that guided the founding fathers in the Constitution’s conception.[10]

Though the detailed historical rules and context of the constitutional content are certainly outdated, some of the fundamental principles embedded in the form Constitution can still be a guide for law and policy. However, in its current state of lackluster relevancy and subjection to overly manipulative interpretation, the Constitution is, in the words of Sontag, “excavated.” Constitutional interpretations not only excavate, but “as [they] excavate, destroy.”[11] What do constitutional interpretations do but make a once revolutionary document “manageable, comfortable?”[12]

 

Originalism versus Living Constitutionalism       

    Constitutional originalism is defined by two key concepts, the fixation thesis and the constraint principle. The fixation thesis is the idea that the original meaning of the constitutional text was fixed at the time each provision was framed, ratified, and made public. The constraint principle builds upon fixation, holding that constitutional practice or enactment should be constrained by the fixed original meaning.[13] While the actual meaning of the text may be a point of contention for originalists, there is agreement over fixation and constraint. A major critique of originalist thought is the issue of “concept-conception.” Developed by Scottish philosopher W. B. Gallie (1912–1998), the concept-conception dilemma arises in moral philosophy when terms have theoretical differences in their criteria for application despite seeming to have a shared meaning.[14] As a social and political theorist, Gallie provides needed insight into how to approach the interpretation of a currently relevant historical legal document, as the Constitution has both a social and political context in both the time that it is written and the time in which it is being interpreted. As Constitutional interpretation involves discerning the meaning of specific words in the context in which they were written, Gallie’s idea of contested concepts is helpful to consider. In relation to originalist interpretation, “original meaning” is a contested concept. In line with Sontag’s warnings, interpretation lends itself to the inability to contend with the gaps that emerge from these contested concepts.

We can once again look to the preamble for an example of the concept-conception dilemma, considering the opening words of the document: “We the people.” Based on historical context and evidence from the rest of the document, the rights outlined for “we the people” did not include Indigenous people, Black people, or women.[15] Moving only from the preamble to Article I of the Constitution, references to “other persons” that were to be counted as three-fifths of a person indicated the exclusion and objectification of enslaved individuals from the conception of American society.[16] Though the Constitution was later amended to elucidate the rights and inclusion of these individuals, from a strict originalist interpretation we are constrained by the original meaning and intent of the authors. So, all that follows in the Constitution is consistently and forever shaded by the founder’s exclusive definition of “people.” The issue with the reality of contested concepts in documents such as the Constitution is aptly described by Gallie as “essential”. He states that such disputes around contested concepts are “not resolvable by argument of any kind, are nevertheless sustained by perfectly respectable arguments and evidence.”[17] Thus, originalist interpreters are locked within endless disputes as to the proper use and meaning of the concept. Sontag would say that this very issue of interpretation and hyper fixation on content leads to a situation where “for some reason a text has become unacceptable; yet cannot be discarded.”[18]

Further arguments against originalism include the fact that the Constitution is a compromise. It is arbitrary and fruitless to try to parse out what the abstract idea of the “founding fathers” meant by every individual word in the Constitution when each of the signers of the document did not even fully agree with everything stated in the final product.[19] Furthermore, the Ninth Amendment admits to unlisted and unimagined rights which are valid and protected though not explicitly enumerated.[20] Originalism crumbles under its scrutinous adherence to original meaning when dealing with an essentially ambiguous text. Originalism at its core “claims to be only [making the text] intelligible, by disclosing its true meaning.”[21] Yet the truth of the Constitution as a compromise, and the reality of contested concepts show that “true meaning” is a dubious and obscured standard of interpretation.

The theory of living constitutionalism is an umbrella under which variations of interpretation reside. Living constitutionalism is grounded in the possibility of constitutional change. A range of views on how that change should be accomplished fall under the title of living constitutionalism. Several prominent forms of living constitutionalism include constitutional pluralism, common law constitutionalism, and popular constitutionalism.[22] Living constitutionalism faces an inescapable paradox. Through hermeneutic attempts to account for change, by existing as tethered to an outdated document, the potential for progress and the revolutionary imagination that actually inspired the Constitution is essentially stifled. Sontag writes that “real art has the ability to make us nervous.”[23] Interpretation attempts to tame art, making it “manageable, comfortable.”[24] Living constitutionalists make the Constitution both manageable and comfortable in order to fit modern needs, further limiting the novelty that made the document so groundbreaking. While claiming to champion malleability, living constitutionalism remains obdurate.

The Constitution’s value now lies more in the ideas that it presents and that it served as a representation of reorganization after a period of revolution, and less in the document as a code of guidelines that should be strictly followed and shaped to current legislation. Through limiting reliance on these constitutional interpretative lenses, we can as Sontag puts it “see the thing at all.”[25] In our consideration of the Constitution in contemporary issues, originalism and living constitutionalism alike fail to “show how [the Constitution] is what it is, even that [the Constitution] is what it is.”[26] And what is the Constitution but a radical, imperfect attempt and collaboration for the sake of establishing higher ideals? It is this core and lasting intention of the document that should be upheld, rather than the revamping “of an old text, which is thought too precious to repudiate… The interpreter, without actually erasing or rewriting the text, is altering it.” [27]

The Dilemma of Interpretation Expressed in Roe v. Wade

 The dangers of interpretation that Sontag explores can be clearly seen in the circus of interpretation applied to the issue of Roe v. Wade and Planned Parenthood v. Casey. The recent Supreme Court decision to denounce the unconstitutionality of legislation upholding the rights of women to legally obtain an abortion has sparked public interest in the role and relevancy of the Constitution. The conversation surrounding constitutional interpretation has become less hypothetical, as the implementation of an originalist framework by the majority of the Court has profoundly and immediately impacted the livelihood of American women. Interpretation has empowered lawmakers to continually grasp at a document in an attempt to institute power structures that perpetuate inherently patriarchy, racism, and classism.[28]

The Supreme Court’s opinion reveals the depth and influence of originalism in the decision made. The opinion states “until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right.”[29] Thus, historical precedent in interpretation was a major influencing factor in the decision. The opinion later states “by the time of the adoption of the Fourteenth Amendment, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.” The stated purpose of overturning Roe v. Wade and Planned Parenthood v. Casey was “to set the record straight,” the record being the intentions of the constitutional drafters.[30] Sontag writes that the modern style of interpretation “digs ‘behind’ the text, to find a sub-text which is the true one.”[31] Does originalist interpretation have the power to excavate the true meaning of the constitutional text, when dealing with a nuanced issue in a contemporary context? Focusing on the aspirational concepts and intention for malleability built into the form of the document may be a truer way to use the constitution as a guiding light for establishing reproductive rights, compared to “setting the record straight” concerning the intentions of the constitutional drafters.[32]

"Roe v Wade abortion rights rally, City Hall, Skid Row, Los Angeles, California, USA (52073914110)" by Cory Doctorow from Beautiful Downtown Burbank, USA is licensed under CC BY-SA 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/2.0/?ref=openverse.

There is a distinction here between the issues present in originalist and living constitutionalist interpretations. While living constitutionalism may prevent necessary progress, originalism seems to be both regressive and dangerous. When further discussing the historical record of abortion in America, the opinion states “the few cases available from the early colonial period corroborate that abortion was a crime.”[33] Why must historical records in this case be considered? History holds important and applicable lessons that can shape policy today. Yet should policymakers look to the laws and social orders of a time when people were still considered property, and the rights of women were few (if any), in order to determine that law and social order of today? As Sontag suggests regarding artistic interpretation, it is abundantly clear in the 2022 Supreme Court decision that constitutional interpretation is also stifling. It is no great feat to align our laws regarding the rights of women now with the laws regarding women in a time when they did not even have the vote. The social implications of the historically driven line of logic emerge hard and quick. The court opinion stated that the right to obtain an abortion does not “have a sound basis in precedent,” and proceeded to list cases on which the Roe v. Wade decision relied, including:

●      the right to marry a person of a different race, Loving v. Virginia, 388 U. S. 1 (1967)

●      the right to obtain contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965)

●      the right to make decisions about the education of one’s children Pierce v. Society of Sisters, 268 U. S. 510 (1925)

●      the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942)

●      the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342 U. S. 165 (1952).

●      (Respondents and the Solicitor General also rely on post-Casey decisions) like Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to marry a person of the same sex).[34]

Furthermore, based on the assumption of lack of sound precedent in previous cases, the court stated that attempting to justify abortion through “appeals to a broader right to autonomy” and to define one’s concept of existence would “license fundamental rights to illicit drug use, prostitution, and the like.” The perils of interpretation are aptly displayed in the majority justification of the court in the cases cited as being “unsound in precedent” and the fearmongering connection drawn between bodily autonomy and drug use and prostitution. Of course, progress is unprecedented when the baseline is set in a time where slavery, genocide of indigenous people, and treating women as property was precedented. This is the height of interpretation as “reactionary, impertinent, cowardly, stifling.”[35]

In Justice Sonia Sotomayor’s dissent, she argued that “the Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.”[36] Though I agree with Sotomayor’s criticism of the originalist lens, living constitutionalism fails to temper the stronghold of originalism in the court. There no longer exists a balanced dichotomy in the forms of interpretation, but a revenge of the originalist upon progress. Progress is not the only ideal under the attack of interpretation, but Justice, unity, and independence. The very ideals found in the form of the Constitution are lost through heady interpretation. In the same way that Sontag illustrates how interpretation ruins the experience of art, originalist and living constitutionalist interpretation ruins the potential for America to actually achieve the aspirational concepts embedded into the foundational documents of this country.

 

 Discussion

Perhaps death to interpretation would be extreme, but extreme issues may call for extreme measures. If we are not to interpret the Constitution, then what value would the document hold? Without interpretation, the value of the Constitution would rightly shift from its content to its form, allowing for the law to serve the people, not the people to be oppressed by the law. The Constitution was in its time and context an imperfect yet revolutionary experiment. If for a moment we can look past the founding fathers’ treatment of land, of people of color, of women, and of the working class, their ideals of Justice and freedom are noble. It is when the moment rightly passes, and the semantics reemerge that the reality of the constitutional drafter’s treatment of the aforementioned parties remain. A dark ink stain on the pristine document. The Constitution is only salvageable when not interpreted. 

The living constitutionalist, in the words of Sontag, “claims to be only making [the constitution] intelligible by disclosing its true meaning.”[37] For the living constitutionalist, “truth” may be temporally relative. What was true in March of 1789 may not still be true today. Looking again at the question of Justice, the true and correct meaning of Justice may not be perfectly parsed out through the abandonment of interpretation for a refocus on form. Yet, interpretation does fail to provide an efficient and cohesive understanding of Justice that is actionable. The carryout of Justice has shifted as time progressed. The questions that follow the contested concept of Justice are endless, as they are applied to modern issues. Justice was once giving women the right to vote. Justice may now be allowing women bodily autonomy, healthcare, and access to choice. Based on the thinking of Sontag, the founding father’s picture of Justice and twisting the words of their document to fit modern needs does not matter as much as the idea itself. America was founded with the intention and ideal of Justice. Consequent policy, electoral and legislative decisions should be made keeping the principle of Justice, and other ideals forged in the form of the Constitution, in mind. The originalists remain regressive while the living constitutionalists lose the essence of the document. The revolutionary fervor and passion to build something new and lasting is what should drive forth our reading and application of the Constitution.

The Constitution is not a divinely inspired holy text, nor are the founding fathers prophets, despite what The Apotheosis of Washington may suggest.[38] Despite the imperfections of the Constitution and the inevitable evolution of the documents that govern American life, the influence of the Constitution as it stands today is immeasurable. In contemporary constitutional America, where the 1787 document remains intact and presiding in its original form, in order to stay true to the original revolutionary spirit of the document, over-interpretation must be avoided.[39] Rather than a promotion of constitutional originalism or living constitutionalism, considering the constitution as a representation of the greater ideals of Justice, freedom, and equality may allow for flexibility in our progressing society, and service to groups who are often marginalized. It is only then that the aspirational concepts embedded in the document may be fully realized.

Constantino Brumidi, Apotheosis of George Washington, 1865, Fresco, 4,664 ft2  (433.3 m2 ). Photograph. Raul. May 2005. United States Capitol. https://commons.wikimedia.org/wiki/File:Apotheosis_of_George_Washington.jpg

In his NBC op-ed, Baynard Woods also wrote that “originalist judges express a belief that we should interpret the U.S. Constitution according to the legal opinions of 18th-century white men—the same white men who denied the right to vote or own property to anyone but themselves.”[40] Wood’s words encapsulate the dangers of originalism and living constitutionalism alike. Holding on to a strict interpretation of a document simply because it was once relevant is not justification enough to allow the content of such a document to rule over modern society. As Sontag wrote in 1961, “interpretation does not, of course, always prevail.”[41] Her frustration with and warning against interpretation reveals the threat that constitutional interpretation can have to those higher ideals of Justice, democracy, and ultimately freedom. Interpretation of the Constitution hinders progress and suppresses the core ideals that made the document revolutionary. We must free the Constitution from the grasp of interpreters, not to render it obsolete, but to have the document assume its rightful place as contextualized inspiration for what great new way of thinking or governance may come next.

Endnotes

[1] Baynard Woods, “The Supreme Court’s 2022 Originalism Is White Supremacy,” NBC News, July 2022, https://www.nbcnews.com/think/opinion/supreme-courts-originalism-white-supremacy-rcna36 409.

[2] Susan Sontag, “Against Interpretation,” Against Interpretation: and Other Essays (New York; Farrar, Straus & Giroux, 1961), 6.

[3] Sontag, “Against Interpretation” 6.

[4] Sontag, “Against Interpretation,” 7.

[5] Sontag defines transparence as: “experiencing the luminousness of the thing [art, literature, documents etc.] in itself, of things being what they are.”

[6] Note the purposeful capitalization of the word Justice by the writers of the preamble.

[7] James E. Fleming, “Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution.” Boston University Law, vol. 92, 1178.

[8] Fleming, 1178.

[9] The 27th amendment: No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

[10] Building upon an understanding of popular sovereignty in a democratic state, Lawrence Sager acknowledges that the people cannot bind themselves to a Constitution set against the collective will of the people to amend it. However, to invoke the people is to utilize a weak metaphor that essentially obscures the vital question of fair an equal representation in the collective people. “The people” as a faulty rhetorical device fails to consider that popular consensus is not proportionately connected to the actual administrative process of amending the constitution. Sager, Lawrence G. “The Birth Logic of a Democratic Constitution.” In Justice in Plainclothes: A Theory of American Constitutional Practice, 161–93 (Yale University Press, 2004). http://www.jstor.org/stable/j.ctt1npjwg.13.

[11] Sontag, “Against Interpretation,” 6.

[12] Susan Sontag asserts that one of the dangers of interpretation is that it makes art “manageable, comfortable.” Sontag writes that “real art has the capacity to make us nervous,” and that the interpreter attempts to “tame the work of art. I would argue that Constitutional interpretation results in a similar phenomenon. Constitutional interpreters aim to “tame” a document meant to be revolutionary. Rather than allowing for radical, lawful Justice, Constitutional interpretations puts limits on how Justice can be enacted and received. Sontag, “Against Interpretation,” 8.

[13] Lawrence B. Solum, “Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate”, 113 Northwestern University Law Review (2019), 1243.

[14] As a social and pollical theorist, Gallie provides needed insight into how to approach the interpretation of a legal document, as the constitution has both a social and political context. Gallie speaks in reference to moral philosophy specifically. In his 1955 Essentially Contested Concepts he explores the dueling and overlapping interpretations of the word “good.” W. B. Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society 56 (1955): 167–98.

 [15] Considering the term “We the people” as defining the boundaries of the Constitution's applicability, later interpretations see the intent of the Constitutional drafters as establishing that the people—not the states—are the source of the federal government's power. Yet, cases such as United States v. Verdugo-Urquidez and Dred Scott v. Sanford pointedly reveal the glaring ambiguity of the term people as the Constitution has aged. Liav Orgad, “The Preamble in Constitutional Interpretation”, International Journal of Constitutional Law, vol. 8, No. 4, October 2010, 714–738, https://doi.org/10.1093/icon/mor010

[16] I use the term objectification in a twenty-first century lens. The mere suggestion of a person not being whole but able to be divided for the logistical and financial benefit of the individual who bought them is indicative of enslaved people being considered not as a human beings but as property, an object to be used without the freedom to act upon their own will. As an enlightenment thinker influential to the Founding fathers, Rousseau defined qualifications of human personhood as possessing character as a free agent and the faculty of self-improvement. I suspect the drafters of the Constitution considered the enslaved person as having neither. Jean-Jacques Rousseau. Discourse on Inequality: On the Origin and Basis of Inequality Among Men. Auckland: Floating Press, 1910.

[17] W. B. Gallie, “Essentially Contested Concepts,” Proceedings of the Aristotelian Society 56 (1955): 169.

[18] Sontag, “Against,” 6.

[19] The founding fathers are abstract in the sense the constitutional drafters and early policy makers have lost their sense of individuality. I find in passing conversation that actual knowledge of the individual founding father is limited, and somehow insight into what the founding fathers would have thought about contemporary issues is abundant. Now, when citing the opinions and intentions of the founding fathers, contemporary arguments are projected onto the ethereal founding fathers in a failed attempt to establish credibility for said argument.

[20] “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

[21] Sontag, “Against,” 6.

[22] Solum, “Originalism,”1243 (2019)

[23] Sontag, “Against,” 6.

[24] Sontag, “Against,” 8.

[25] Sontag, “Against,” 14.

[26] Sontag’s riddling language exposes the vital issue in examining art, literature and ancient documents alike. How much of our examination is projecting, and how much of our examination is considering the object for what it actually is? In the case of constitutional interpretation, despite the originalist claim to care first and foremost about the intentions of the drafters, and the desperate twisting of ancient texts to fit modern needs by the living constitutionalist, both parties forsake the Constitution for what it is, in order to project their own political and social aspirations onto the document. Sontag, “Against,” 14.

[27] Sontag, “Against” 6.

[28] I write from the understanding that policy is not race-neutral, class neutral, or gender-neutral. Data supports that minority groups are disproportionately affected by limited access to abortions.  For example, a 2018 study published in the American Journal of Public Health found that women who were turned away and went on to give birth experienced an increase in household poverty lasting at least four years relative to those who received an abortion. D. G. Foster, et al., “Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States,” American Journal of Public Health 112, no. 9, (2022).

[29] Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022.

[30] In the Majority Court opinion delivered by Justice Samuel Alito, the exact wording of “set the record straight” is used as justification for the Dobbs decision. Dobbs v. Jackson (2022).

[31] Sontag, “Against,” 6.

[32] Justice Alito states that the court must “set the record straight” regarding the intentions of the constitutional drafters, thus invoking common originalist rhetoric. Dobbs v. Jackson Women’s Health Organization, No 19-1392, 2022.

[33] Dobbs v. Jackson (2022)

[34] Dobbs v. Jackson Women’s Health Organization, No 19-1392, June 24, 2022, 31.

[35] Sontag, “Against,” 7.

[36] Dobbs v. Jackson Women’s Health Organization, 17. Breyer, Sotomayor, and Kagan, JJ., dissenting.

[37] Sontag, “Against,” 6.

[38] The Apotheosis of Washington is an 1865 Constantino Brumidi fresco painted on the ceiling of the U.S. Capitol Building rotunda. The painting depicts George Washington ascending to the heavens, surrounded by Roman deities. The word “apotheosis” in the title means raising a person to the rank of a god.

[39] Avoidance of over-interpretation is necessary for progress and the health of the nation now, but it may be an interesting thought experience to imagine a post constitutional America. The Constitution cannot and should not last forever. What will come after is uncertain, but there will be a post-constitutional era. The relative youth of America is often forgotten. This American experiment may still be in its early years compared to the systems of longstanding dynasties throughout history. It is not any more difficult to envision a post-constitutional America than it must have been for the Babylonians to imagine a society not governed by Hammurabi’s code or for the English to further build upon the ideals established in the Magna Carta. As long as America remains a nation, will the Constitution be the governing document? In what ways will the Constitution actually change over time? Would an entirely new governing document ever be drafted?

[40] Woods, “The Supreme Court’s 2022 Originalism Is White Supremacy.”

[41] Sontag, “Against,” 10.


Author Bio

Halle Miller

is a fourth-year Psychology major and Art minor at Harding University. She originally wrote this essay for a literary and critical theory class. Her future goals include pursuing graduate studies in psychology, in order to explore intersectionality among minority individuals with layered identities and intergenerational trauma as a master narrative.

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