Constitutional Theory of Choice

Constitutional Theory of Choice

            The United States of America is blessed to have founding fathers that made it their priority to help establish a nation under God but with an understanding that all men are created equal. This is the same reason why they also wrote the Constitution. The Constitution is an old document that expresses the beliefs of the founding fathers together with the free men and women of the new United States of America. Since that time the US government finds guidance from the words found in this old documents and the way to use it properly is by interpreting it properly.

            A correct interpretation of the law is not easy. It is not even easy to master what the documents say in the first place. And now in the 21st century there is another problem added to the burden carried by legal experts especially the Supreme Court concerning the need for interpreting the Constitution. Also, if there is a case presented to the Supreme Court, the Chief Justice together with his associates must be able to deal with it wisely. Their continued display of wise decisions, fairness and integrity will allow the US to continue its current status as a world superpower and a nation that promotes democracy above all.

            This paper will take a closer look at the US Constitution particularly on how to interpret it properly to serve the people. In this regard this paper will also examine certain constitutional theories that will help guide legal experts on how to properly interpret the law. There is no further explanation needed with regards to what will happen if the Supreme Court could no longer be able to do its job in the most effective manner.


            Ever since ancient times people rely on laws to keep a society together. Without laws people will simply behave like animals and their behavior like wild beasts driven by instinct but not by intellect. Since humans are far higher than animals it is expected of them to behave in a civilized manner. But without laws there is no means for which to guide them. Without laws they do not have something to look up to and consider as a guiding light that will aid them in their path to enlightenment or simply to good things such as wisdom, peace, order, and wealth.

            It is a great thing that the United States of America no longer has to find its way in the dark because this great nation possess one of the most amazing set of documents in the history of mankind – this nation possess the Constitution. The Constitution is not simply words written on paper but noble ideas and even magnificent ideas coming from the hearts and minds of the founding fathers. These leaders went through hell to secure freedom and they not only had to go through a bitter war but they grew up in an environment where they feel the discouraging power of tyranny. So when they framed the Constitution they know very well the hardships and the pain of those who were not given the sweet blessing of equality and freedom


            But in order for the Constitution to be applied faithfully and in order for the people to experience the blessing contained within it, there must be someone who can correctly interpret it. According to Baker this will not be an easy thing to do. He enumerated at least three reasons for this:

1.      Constitutional law is a challenging subject and is very hard to master.

2.      There are large volumes of materials with regards to changes and interpretation of the same.

3.      Every year there are new decisions that results in revision, elaboration and overrule of past understandings.

Great Need

            It has been shown earlier concerning the difficulty of studying and mastering constitutional law. But there is also a great need that needs to be resolved. There are new challenges and new problems that continue to crop up and the three major branches of government must be able to respond to each of these challenges to ensure continued march towards progress.

            One of the more pressing needs is to find a solution to the ever growing problem of globalization, terrorism, and a weak US economy. With regards to the problem of globalization Murphy has this to say:

The preliminary argument of Constitutional Rights after Globalization, is that economic globalization directly challenges the ability of constitutions to structure and regulate the exercise of political power because such power now lies increasingly with constitutionally unaccountable actors such as MNCs (multinational companies). [1]

            Aside from the economy and recent phenomenon such as globalization there are other problems that require proper interpretation of the Constitution; these could be landmark cases or simply cases that are difficult to judge and hence the need for fair and wise judgment. Since Baker already pointed out the problem of mastery over Constitutional Law he therefore suggest that there is another way to know more and yet not be overwhelmed by so much information. Baker suggested adopting a constitutional theory. This constitutional theory is simply a framework or a lens so to speak that the user can use to focus and find a better overview of the whole constitutional law.

Liberal Theory

            There are at least five major theories which are enumerated as follows:

1.      Liberal Theory;

2.      Conservative Theory;

3.      Feminist Theory;

4.      Critical Race Theory; and

5.      Postmodern Theory.

After considering the five major theories the proponent of this paper decided to go for the Liberal Theory. Just like the others this framework is far from perfect. It has its strengths and weaknesses. But looking at its capability to initiate change it can be argued that its benefits far outweigh its faults.

It can also be argued that the original framers of the Constitution are Liberal theorists at heart. This is because as Baker pointed out in his work, liberals are those that have the tendency to, “…effectuate large scale reforms that improve the situation of underrepresented and oppressed groups”. [2] This means that liberal theory is closest to the original intention of the founding fathers and those who frame the constitution. They were men who longed for freedom and equality and they wish the same for all their countrymen.

The desire to transform the nation into a country that sincerely believes in equality and freedom was expressed by lawyers and justices that advocate this view. There is no other Chief Justice of the Supreme Court who was able to show what liberal theory was all about other than Chief Justice Warren.

In Warren’s time he was able to change how America views the law. In the turbulent times of the 1960s Warren did not back down from major challenges and he proceeded to judge on very sensitive cases. For instance he judged against segregation. According to Warren it is not right to segregate the Blacks from the Whites. By doing so he started a revolution that forever changed America.

But it seems that Warren was simply warming up. During his tenure he was also responsible for establishing into law other ideas that ensure the protection of a person’s civil rights. Aside from giving everybody the chance to education he also made it possible for those accused of crime to have access to a lawyer. This allowed every citizen protection from those who can be perceived as having power over them e.g. the police. He was also responsible for making it unconstitutional for the police to use evidence items that were discovered in an illegal search or searching without a warrant.

Liberal theory if used to interpret the Constitution will result in a government that will always strive for the protection of its citizens and their rights. Having the mindset of a liberal will also make this nation become particularly mindful of those who are suffering in poverty, those who had not enough food to eat and those who do not have the means to change their fortunes. They will forever remain in poverty because there is nothing in the system that will help them fight the cycle of defeat.

Liberal Theory vs. Others

            The number one reason why the proponent of this paper does not like the Conservative Theory is that it has the potential to maintain the status quo. So in its most extreme it will not do anything to change the situation. And the defense of those who believe in this theory is a type of interpretation that is also called originalism or being traditionalist.[3] This means that in order for them to justify not changing anything they simply have to say that one must be faithful with the original interpretation of the Constitution. But this not acceptable if there are many Americans who are oppressed and needed assistance to break free from their current status.

            The main argument against the other theories is that they are too narrow to be useful for building a better America. Just by the sound of the labels like feminist and race one can almost feel that there is bias in that framework.


            It has been discussed earlier that Constitutional Law is very difficult to study and also very difficult to master. But there is also a great need in this society for an accurate and fair interpretation of the law. This means that even if it is truly difficult to understand all the complex details of Constitutional Law Americans, especially those who create laws – like the US Congress – and Supreme Court Justices and other legal experts to simply sit back and do nothing.

            In order to have at least a decent understanding one has to rely on a particular constitutional theory. This theory is actually a framework that guides those who attempt to interpret the constitution. There are least four major constitutional theories and these are enumerated as follows: a) liberal theory; conservative theory; c) critical race theory; and d) feminist theory.

            Having a constitutional theory is like having a reliable telescope that would allow the user to see far ahead. Constitutional theory is like a framework where one uses to get a better grasp of the whole picture. In this case the liberal theory was chosen as the best framework from which lawyers and lawgivers alike can use to interpret the law.

            The proponent of this paper will argue that the best framework to use is the Liberal Theory. It is the best framework to use because it will enable interpreters to see the great need for equality and helping those who do not have the capability to take care of themselves. The development of the theory allows for deeper understanding of the law and at the same time sets guidelines for action. The benefit of using the liberal theory was proven in the time of the Chief Justice Warren.

            In Warren’s time he did not waste time and hid behind technicalities. He went on to interpret and use Constitutional Law to help others. Warren was responsible for allowing many Americans to enjoy their civil liberties and it is the testament to how effective is liberal theory in using Constitutional Law.


Baker, T. (2004). Constitutional Theory in a Nutshell. Available from

“Constitutional Theory” Available from


Duffy, M. (2005). “Who Will be the Next Rehnquist.” Time Magazine (online) Available



Murphy, T. (2007). Globalization, Legal Pluralism, and the New Constitutionalism

Nordic Journal of Human Rights 25 73-79

N. Dorsen, M. Rosenfeld, A. Sajo & S. Baer (2003). Comparative Constitutionalism:

Cases and Materials Available from


“The Legacy of the Warren Court.”(1969). Time Magazine (online)


[1] See Murphy, 2007.[2] Baker, 2004, p. 144.[3] See Duffy, 2005.