William M. Wiecek in Liberty Under Law writes an interpretive history of the United States Supreme Court, considering the parameters of the constitutional debate of the past century and the ways in which that debate developed as well as the directions in which it might be taken in the future. The author begins by indicating the current state of the debate on constitutionalism as indicated by two crudely polarized positions, using the names "interpretivism" and "noninterpretivism," terms which the author finds inadequate. 'Interpretivism" Wiecek calls constitutional liberalism, and it demands that the Court find its values exclusively in the text of the Constitution, the intent of the Framers, and the historical situation of the Framers. The second pole is called by Wiecek the fundamental values approach, a position derived from a view of judging espoused by Justices Oliver Wendell Holmes, Jr., Benjamin N. Cardozo, Felix Frankfurter, and John M. Harlan. This approach denies that there are mathematical formulas for determining constitutional questions and that in determining constitutional issues, it is necessary to examine their origin and the line of their growth. Any given case is to be decided in terms of our whole experience and not just in terms of the experience of the Framers. Wiecek offers his analysis as a means of renewing inquiry on these issues to frame the question better and less simplistically.
Though Wiecek calls the one position constitutional liberalism, in political terms today it is the view held by conservatives. It has hardened into an extreme position of original intent by which proponents claim that constitutional questions have to be settled only by recourse to the intentions of the Framers, as if the world had been frozen in time and everything had to be tested in light of eighteenth-century values and ideas. Another way of categorizing the positions is original intent versus judicial activism, whic...