Omar Bennett
Originalism and a living constitution are two opposing theories of constitutional interpretation. Originalism asserts that the meaning of a constitutional text is fixed and based on the original intent and understanding of its drafters at the time of its composition. On the other hand, a living constitution theory posits that the constitution is a living, breathing document that evolves and changes over time, adapting to new circumstances and reflecting evolving societal standards and values. This debate is not merely academic but has significant implications for how laws are interpreted and applied in practice, with proponents and critics of both theories presenting compelling arguments for why their preferred approach is better suited to the dynamic nature of society and the challenges of the present.
| Characteristics | Originalism | Living Constitution |
|---|---|---|
| Interpretation | Originalists believe that the constitutional text should be interpreted based on the original meaning of the text and what the authors understood it to mean. | Living constitutionalists believe that the meaning of the constitutional text can change over time as social attitudes change. |
| Text | Originalists believe that the constitutional text has a fixed meaning that is permanent and static. | Living constitutionalists believe that the constitutional text can evolve and adapt to new circumstances without the need for formal amendments. |
| Intent | Originalists focus on the original intent of the drafters of the Constitution. | Living constitutionalists believe that the intent of the "Founding Fathers" is less important than ensuring the Constitution remains relevant to those it affects today. |
| Judicial Approach | Originalists believe that judges should interpret the Constitution according to its language. | Living constitutionalists believe that judges should interpret the Constitution according to evolving societal standards. |
| Judicial Decision-Making | Originalists believe that the original meaning of the constitutional text is an objective legal construct. | Living constitutionalists believe that the Constitution should be interpreted based on precedent and tradition. |
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What You'll Learn
Originalism's revival in the 1980s
In reaction to this, Ed Meese, Ronald Reagan's attorney general, called for a "jurisprudence based on first principles". Meese's idea of originalism proposed that the Constitution should be interpreted based on its original language and that it has a permanent, static meaning. This theory was further supported by jurist Robert Bork, who argued that without a specific constitutional text, judges are free to input their own values while interpreting the Constitution. Bork's theory of originalism suggested that judges should instead interpret the Constitution based on the specific values that its framers intended.
Law professor Raoul Berger also contributed to the revival of originalism in the 1980s by arguing that rulings by the Warren and Burger Courts were illegitimate as they deviated from the Constitution's original intent. The conservative originalist movement spearheaded by Berger called for judicial restraint and a return to interpreting the Constitution as it was originally understood.
By the 1990s, originalism had become a broadly endorsed view in the conservative legal movement. The failed Supreme Court nomination of Robert Bork in 1986 and the role of the Department of Justice under the Ronald Reagan administration also contributed to the growing legitimacy of originalism during this time.
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Original intent vs. original meaning
Originalism is a theory of constitutional interpretation that emerged in the 1980s as a reaction to the theory of the "Living Constitution". It consists of two schools of thought: original intent and original meaning. Original intent argues that the Constitution should be interpreted based on what its drafters intended when they wrote it. This interpretation often uses tools such as legislative history to determine what the authors were trying to achieve and to give effect to their intentions. However, critics argue that it is difficult and inappropriate to try to read the minds of the drafters, and that it is unclear if they had a single unified intent.
On the other hand, original meaning focuses on interpreting the Constitution based on the original meaning of the text, regardless of the intentions of the Founders. This interpretation uses dictionaries, grammar books, legal documents, legal events, and public debates from the time to understand how the words were generally understood at the time. Both versions of originalism argue that the Constitution has a permanent, static meaning that is inherent in the text.
The debate between original intent and original meaning is not just academic but has real-world implications. For example, in the case of Brown v. Board of Education (1954), living constitutionalists believe that racial segregation was constitutional from 1877 to 1954 because public opinion favoured it, and it only became unconstitutional after the Supreme Court's decision in that case. Originalists, however, argue that the Fourteenth Amendment always forbade racial segregation, even before the 1954 decision.
While originalism has gained mainstream acceptance, it is not without its critics. Some argue that originalism is a new concept not espoused by the Founding Fathers, and that certain parts of the Constitution were intentionally broad and vague to allow for future generations to interpret them. Additionally, some critics turn to the competing concept of the Living Constitution, which asserts that the Constitution should evolve and be interpreted based on the context of current times, as social attitudes change.
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The evolution of living constitutionalism
The theory of Living Constitutionalism, also known as judicial pragmatism, emerged as a counterpoint to originalism. It holds that the US Constitution is a dynamic document that evolves and changes over time, adapting to new circumstances without being formally amended. This viewpoint asserts that the Constitution should be interpreted according to evolving societal standards and contemporary social necessities rather than being bound by its original language.
The concept of a Living Constitution suggests that the document is transformed according to the necessities of the time and situation. Proponents argue that the constitutional framers intentionally wrote the Constitution in broad and flexible terms to create a dynamic and living document. They believe that the Constitution should be viewed as a living organism that develops alongside society, providing a more malleable tool for governments. This idea aligns with the Darwinian principle that society is a living entity that must evolve and adapt to changing circumstances.
Living Constitutionalists argue that the meaning of the Constitution changes over time as social attitudes evolve. For example, they believe that racial segregation was constitutional from 1877 to 1954 because public opinion favoured it and that it became unconstitutional only after the Supreme Court decision in Brown v. Board of Education. They contend that racial apartheid could become constitutional again if social attitudes toward race were to change in the future. This interpretation allows for a more flexible and adaptable understanding of the Constitution, ensuring that it remains relevant and responsive to the needs of a changing society.
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Originalism's inadequacy for controversial issues
Originalism and Living Constitutionalism are two contrasting theories of constitutional interpretation. Originalism holds that the meaning of a constitutional text is fixed and should be interpreted based on its original public meaning at the time it became law. On the other hand, Living Constitutionalism asserts that the constitution is a living, evolving document that adapts to changing social attitudes and circumstances without the need for formal amendments.
While originalism provides a static interpretation of the constitution, it falls short when addressing controversial issues in the modern era. Firstly, originalism faces the challenge of determining the original intent of the constitution's drafters. This involves the difficult task of deciphering the minds of the drafters, which can lead to subjective interpretations. Originalism's focus on original intent can also overlook the evolving nature of societal values and norms. Society's views on various issues, such as racial segregation, have undergone significant transformations since the constitution's adoption. Originalism's static interpretation may hinder the ability to address contemporary controversies in a dynamic social landscape.
Another inadequacy of originalism is its potential disregard for the lived realities of citizens. Living constitutionalists argue that interpretation should consider the power differentials between citizens and the actual impact of constitutional law on their lives. Originalism, on the other hand, may fail to account for these evolving societal dynamics, potentially resulting in interpretations that are out of touch with the current societal context.
Furthermore, originalism's insistence on a fixed interpretation can hinder the ability to address novel issues that arise in a rapidly changing world. For instance, the constitution's authors could not have anticipated the technological advancements and associated legal questions surrounding electronic surveillance. Originalism's static approach may struggle to provide clear guidance on such contemporary controversies.
Additionally, originalism's interpretation of the constitution as a static document can lead to a concealment of the true basis for judicial decisions. In practice, Supreme Court opinions often rely heavily on precedent and tradition rather than solely on the text of the constitution. This discrepancy between theory and reality can create a disconnect between the interpretation and the actual decision-making process, making it challenging to understand the rationale behind judicial rulings.
In conclusion, while originalism provides a fixed interpretation of the constitution, it faces significant challenges when applied to controversial issues. Its focus on original intent can disregard societal evolution, fail to account for citizens' lived realities, and struggle to address novel controversies. Moreover, the disconnect between originalist theory and judicial practice can obscure the genuine basis for judicial decisions. These inadequacies highlight the need for a dynamic approach to constitutional interpretation, such as Living Constitutionalism, which adapts to changing social attitudes and circumstances.
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Originalism as the predominant theory
Originalism is the predominant theory of constitutional interpretation in the United States Supreme Court. It is a theory that focuses on the original public meaning of the Constitution, as understood at the time of its composition. Originalists believe that the constitutional text should be interpreted based on its original meaning, rather than evolving it to fit modern societal standards. This theory holds that the meaning of the constitutional text is fixed and permanent and that it should bind constitutional actors.
The revival of originalism in the 1980s was a reaction to the theory of the "Living Constitution." Originalists argue that the Constitution has a static meaning that is independent of the subjective intentions of its drafters. They contend that the original meaning can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates from the time of its adoption. This approach, also known as "New Originalism," focuses on the "original public meaning" to determine how the average person at the time would have understood the concepts in the Constitution.
Originalism is often associated with textualism, which is a subset of originalism. Textualism emphasizes interpreting legal texts based on the ordinary meaning of the text, without considering external factors such as the intent of the drafters. However, originalism and textualism are not interchangeable terms. While textualism focuses solely on the text, originalism also considers the historical context and the original intent of the drafters to a certain extent.
Originalism provides a stable and consistent framework for interpreting the Constitution. It ensures that the meaning of the Constitution remains true to its original understanding and prevents judges from interpreting it based on their personal beliefs or evolving societal standards. By adhering to originalism, constitutional interpretation is grounded in the text itself, promoting a more objective and consistent approach to the law.
Critics of originalism argue that it is inadequate for addressing difficult and controversial constitutional issues. They claim that originalism can conceal the real basis of a decision and fail to adapt to changing circumstances and values. Additionally, determining the original public meaning of the Constitution can be challenging, as it requires examining historical sources and understanding the context of the time.
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Frequently asked questions
Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text should be interpreted based on the original public meaning that it would have had at the time that it became law.
A living constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change.
Originalism and a living constitution are two competing theories of constitutional interpretation. Originalism holds that the meaning of the constitutional text is fixed and does not change over time, while a living constitution asserts that the meaning of the text can evolve as societal values and attitudes change. Originalism focuses on the original intent and meaning of the text, while a living constitution emphasises adaptability and interpretation based on prevailing ideas and values.
Originalism provides a stable and consistent framework for interpreting the Constitution, ensuring that the original intent and meaning of the text are upheld. It offers a clear and objective approach by referring to the public meaning of the text at the time of its adoption. Originalism also emphasises the importance of adhering to the principles established by the Founding Fathers.
A living constitution allows for flexibility and adaptability, recognising that societal values, attitudes, and circumstances can change over time. It enables the interpretation of the Constitution to evolve and address contemporary issues that may not have been anticipated when the document was written. A living constitution also acknowledges the limitations of the original text, recognising that it may not perfectly represent the values and needs of a changing society.
