A Case for Originalism
It has been 230 years since the ratification of the United States Constitution, and the
country has gone through numerous political, societal, and cultural changes and developments in
the intervening years. The Constitution was written with the culture of America at that time, and
many wonder if the same societal beliefs and standards can still be now applied. There are two
schools of thought that evolved around the interpretation of the Constitution: the doctrine of
original understanding or meaning and the belief that the Constitution is a living document. The
first consists of the idea that judges should determine what the Constitution’s writers originally
meant when they wrote the articles and amendments and use that meaning to guide their rulings.
Those who follow this school of thought are typically more conservative and are called
“originalists.”
On the other hand, the belief that the Constitution is a living document follows the
idea that the Constitution must be adapted and reinterpreted as the nation changes and rulings
should evolve to handle present-day issues. Those who believe in the “living Constitution” are
typically more liberal. In an America divided on political and social issues more than ever, the
doctrine of original understanding offers stability grounded in history. It follows the wishes of
the founding fathers and it allows for deeper examination of proposed amendments. It also
should be the standard method of interpreting the Constitution.
The main motivation for originalist belief is that such interpretation will “limit judicial
discretion” and bind judges to the text and its history and prevent judges from leaning on their
own subjective viewpoints, thereby imposing their personal policy preferences on the law. With
originalism, the Constitution is an unwavering document that says the same thing in 2017 as it did in 1927 and in 1787 (save for the few amendments), so theoretically, a case would have
nearly the same outcome in today as it would in 1787, regardless of the vast differences in
political climates. That is not actually the case, however, because judicial precedent has had an
impact on court decisions, slowly shifting and shaping how the Constitution is interpreted. But
this shifting of interpretations and adherence to precedent, or stare decisis, does not
automatically nullify originalism. Because previous court decisions are often abandoned, or if
they are maintained can be narrowed, originalism can still prosper.
Though the term and practice of “originalism” did not begin until around 1981 following
an article by Paul Brest, a scholar of constitutional law, even the founding fathers believed that
the Constitution should be interpreted through an originalist lens. Thomas Jefferson, though not
one of the authors of the Constitution but still a prominent political figure in American history,
stated that we must, “on every question of construction carry ourselves back to the time when the
Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying
what meaning may be squeezed out of the text or invented against it, conform to the probable
one in which it was passed.” He declared that the original understanding of the framers must be
adhered to “on every question of construction” (emphasis added) regardless of any circumstance
or change in societal values.
Proponents of the Living Constitution believe that the document must reflect modern-day
America, adapting to societal changes. James Madison, colloquially known as “the father of the
Constitution,” refutes that sentiment, asking in an 1831 letter to his colleague Charles J.
Ingersoll, “Can it be of less consequence that the meaning of a Constitution should be fixed and
known, than a meaning of a law should be so? Can indeed a law be fixed in its meaning and
operation, unless the constitution be so?” If the Constitution be seen as a malleable document that takes on whatever meaning a judge decides to assign to it, the power of the Constitution is
undermined. This is why there needs to be a standard to which all constitutional interpretation
must heed. Such standards, rooted in history, provide a stable, common ground on which to base
arguments and allows for a firm mutual understanding of the law, preventing disagreements
about what has or has not changed about America in recent years.
Some critics of originalism may wonder how the Constitution can protect citizens in
cases that may not have existed at the time of writing or in ways that contradict the beliefs of the
framers. After all, they argue, most of its writers were slaveowners who believed in white
supremacy. Such arguments as this are invalid, because the Fourteenth Amendment, giving
rights to “all persons born or naturalized in the United States,” eliminated any possible racially
biased “original understanding” the Constitution may have had. Additionally, one amendment
(the Ninth) protects unenumerated rights. The amendment not only acknowledges the existence
of other rights beyond those explicitly listed, but also both prevents the government from
expanding its power: it allows the courts to enforce rights not listed, recognizing that there could
be rights the framers may not have thought of, but that which still exist today, like rights
involving the Internet. This is further proof that the framers anticipated cultural development and
provided a way for originalism to thrive in the face of it.
The late Justice Antonin Scalia, one of the most vocal advocates of originalism, once said
that “you would have to be an idiot to believe [in the living Constitution]. . . . The Constitution is
not a living organism, it is a legal document. It says something and doesn't say other things.” As
a legal document, the Constitution binds all citizens. One must follow what it says based on what
it meant when it was written, not based on what modern legal scholars think it means in today’s
context. Because America was founded on the Constitution, contemporary interpretations straying from the original meaning given it by the framers undermines its authority and
legitimacy, weakening its power as the supreme law of the land.
The Constitution is not a living
document, but, as Justice Scalia put it, “dead, dead, dead.” Originalism should be the standard
method of Constitutional interpretation. It will help level the deep divide in modern American
politics, should there be an agreement on this methodology.
By Kelly Myslinski, Junior, Theatre Arts/Mass Comm major