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Informed Citizens

are Better Citizens

by Jodi L. Miller

When the U.S. Constitution was written in 1787 it took at least 30 seconds to load a musket. Could the framers of the Constitution have envisioned automatic weapons? In a time when writing daily letters was the norm could they have imagined the legal issues related to email, texting or the internet?

How do courts, from lower courts all the way to the U.S. Supreme Court, interpret the U.S. Constitution to decide 21st Century issues? Two schools of thought on interpreting the U.S. Constitution—originalism and living constitutionalism—take differing views.

Ken Kersch, a political science professor at Boston College, explains that originalism and a living constitution are both theories, mainly created by law professors and directed toward judges, on the best way to interpret the U.S. Constitution when the document’s language alone does not provide a clear answer to a constitutional question.

“Living constitutionalists have long argued that it is inevitable that the short and sometimes broadly worded constitutional text will be indeterminate [uncertain],” Professor Kersch explains. “For this reason, they say, judges must resolve its ambiguities by reading it in light of current, and evolving, understandings of what would be best.”

According to Professor Kersch, the theory of originalism began in the 1970s. Originalists pushed the idea that living constitutionalism was a way for judges to ignore the law, introducing their own politics into their rulings—in effect “legislating instead of judging.”

“Originalists argue that judges have a duty to follow the ‘fundamental law’ of the Constitution,” Professor Kersch says. “The most effective recipe for doing so, they argue, is to read the text in a way that approximates the way that text was originally understood at the time it was adopted—that is, at the time it gained authority as ‘law.’”

Although the term “originalism” is credited to Paul Brest, a professor at Stanford Law School, the theory first appeared in a 1971 article written by Robert Bork, a professor at Yale Law School and published in the Indiana Law Journal. Professor Bork argued that judges “must stick close to the text [of the Constitution] and the history, and their fair implications, and not to construct new rights.”

In a 1985 speech to the American Bar Association, Edwin Meese, who served as Attorney General in the Reagan administration, argued that sticking to the “jurisprudence of original intention would produce defensible principles of government that would not be tainted by ideological predilection.” Meese claimed that “any other standard suffers the defect of pouring new meaning into old words, thus creating new powers and new rights totally at odds with the logic of our Constitution and its commitment to the rule of law.”

Living or dead?

In response to Meese’s speech, former U.S. Supreme Court Justice William J. Brennan Jr.’s 1985 speech at Georgetown University made a case for living constitutionalism. Where originalists believe that the meaning of the Constitution is fixed at the time it was written and discernible in the present, living constitutionalists insist that the meaning of the document can evolve in response to changing societal perceptions and demands.

“We look to the history of the time of framing and to the intervening history of interpretation,” Justice Brennan said. “But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Former U.S. Supreme Court Justice Antonin Scalia famously said that the U.S. Constitution is a “dead document.” In a 2008 interview with National Public Radio (NPR), Justice Scalia argued against a living constitution.

“If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say—which is probably whatever the people would want it to say—you’ve eliminated the whole purpose of a constitution. And that’s essentially what the ‘living constitution’ leaves you with.”

In a 2021 column for the American Bar Association Journal, Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, wrote that many of the precedent setting U.S. Supreme Court rulings would not fare well if originalism were to be widely embraced by the courts.

“It would seem that Brown v. Board of Education (1954) was wrongly decided from an originalist perspective because the same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools,” wrote Professor Chemerinsky, who is also the author of Worse Than Nothing: The Dangerous Fallacy of Originalism.

In the NPR interview, however, Justice Scalia said that precedent should be accepted.

“You can’t reinvent the wheel. You’ve got to accept the vast majority of prior decisions. … I do not argue that all of the mistakes made in the name of the so-called living constitution be ripped out,” Justice Scalia told NPR. “I just say, let’s cut it out. Go back to the good, old dead Constitution.”

Still, Chemerinsky is skeptical and points out that long-standing precedents have been overturned in recent years at the U.S. Supreme Court. He also pointed out in the column that at least three of the current U.S. Supreme Court justices—Clarence Thomas, Neil Gorsuch and Amy Coney Barrett—are “self-avowed” originalists.

“Originalists say their theory constrains what justices can do,” Professor Chemerinsky writes. “Nonoriginalists say it makes no sense to be governed today by the views and understandings of the agrarian [agricultural], slave society of 1787. The Constitution, to be relevant, must be a living document.”

Throwing textualism into the mix

The terms originalism and textualism are sometimes used interchangeably; however, Professor Kersch says there is technically a difference between the two. Some originalists, Professor Kersch says, like Justice Scalia, have described themselves as both textualists and originalists.

“Textualists argue that the text itself—what the Constitution literally says—should be a judge’s touchstone. ‘Plain meaning’ is afforded a high status by textualists,” Professor Kersch explains. “The problem is that the literal text can still be ambiguous. If—and only if—the text is uncertain or ambiguous, many textualists will then turn toward originalism to resolve the uncertainty or ambiguity concerning the meaning of the text. In this way, one can be both a textualist and an originalist. True textualists will go to the text first, and only use originalism if necessary. True originalists, by contrast, will typically begin with a foray into original understandings.”

In a 1996 speech at Catholic University, Justice Scalia talked about the two theories.

“The theory of originalism treats a constitution like a statute and gives it the meaning that its words were understood to bear at the time they were promulgated [disseminated]. You will sometimes hear it described as the theory of original intent,” Justice Scalia said. “You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Finding common ground with originalism

Some critics of originalism contend that judges need to be historical experts to apply originalist principles to modern-day issues and rulings. Professor Kersch says that historians would agree with that criticism, but originalism takes place in the “law world” not in history departments.

“The law world–law professors, law clerks, lawyers, and judges—draw, often highly selectively, on the best historical scholarship by professional historians,” says Professor Kersch. “One problem is that historians accept it as routine that history is full of complexities, gaps, disagreements, and contradictions. The legal world, on the other hand, values the clear, determinative answer that justifies the decision and decides the case.”

So, how do courts find guidance on modern day issues relying on originalism?

“The most sophisticated originalists acknowledge that our world and the world of the Founders are very different,” says Professor Kersch.

For example, Justice Scalia in another speaking engagement, cited punishments such as public flogging or branding, which might have been tolerated during the colonial period.

“Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge—even among the many who consider themselves originalists—would sustain them against an Eighth Amendment challenge,” Justice Scalia said. The Eighth Amendment to the U.S. Constitution bars against cruel and unusual punishment.

According to Professor Kersch, originalists have devised methods that recognize and account for changes. For example, he says that when considering the question of free speech on social media, an originalist would likely determine whether forms of social media are similar to newspapers. When it comes to discrimination against the LGBTQ+ community, Professor Kersch says, originalists would compare it to discrimination on the basis of race or sex.

Today’s U.S. Supreme Court

The U.S. Constitution is the oldest written constitution still in force. The website of the U.S. Supreme Court states: “That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government. The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of ‘judicial review’ has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a ‘living Constitution’ whose broad provisions are continually applied to complicated new situations.”

In a public interview at Northwestern University in 2022, current U.S. Supreme Court Justice Elena Kagan said that the framers “knew they were writing for the ages,” sometimes writing in broad and vague terms.

“They didn’t list specific practices,” Justice Kagan said. “They used those…generalities for a reason because they knew the country would change…and that you had to apply these principles to circumstances that they couldn’t imagine.”

On the U.S. Supreme Court’s website, the section titled “The Court and Constitutional Interpretation” ends with a quote from former Chief Justice John Marshall who served on the Court from 1801 until his death in 1835.

“We must never forget that it is a constitution we are expounding…intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

Discussion Questions

  1. Pick either the originalism or living constitutionalism theory. Explain in detail how that theory is the best way of interpreting the U.S. Constitution.
  2. The article mentions a few issues that couldn’t have been imagined by the framers of the U.S. Constitution. What other modern-day issues can you think of that are not explicitly outlined in the U.S. Constitution?

Glossary Words
ideological
—relating to a system of ideas especially related to political theory and policy.
jurisprudence
—the theory or philosophy of law.
precedent — a legal case that will serve as a model for any future case dealing with the same issues.
statute — legislation that has been signed into law.