Is the Constitution a living document or must it be interpreted literally?
U.S. Supreme Court Justice Antonin Scalia is a colorful and brilliant proponent of the school of constitutional interpretation called “originalism.” He argues that originalism is the only proper way to interpret the United States Constitution so that judges are not given license to create or eliminate constitutional rights as they see fit.
To originalists, the meaning of the Constitution was fixed at the time it was originally ratified by eleven states in 1788 or later amended. Where the meaning of the words is not clear, the judge must look exclusively to historical documents that reflect the common understanding of the words, the purpose of the clause, and the values predominate in society at the time of passage. No consideration of the modern understanding of the words, purposes, or underlying values is appropriate.
For example, Scalia has boldly argued that the “equal protection” clause does not protect against sex discrimination because at the time the 14th amendment was passed in 1868, society considered such discrimination to be appropriate and lawful. He argues that the 1920 extension of the voting right to women through the 19th Amendment confirms that the 14th Amendment did not apply to sex discrimination.
Critics point out that Scalia’s originalism would not find “separate but equal” schools for blacks and whites unconstitutional because at the time of the 14th amendment such schools were widely accepted throughout the county. Similarly, Scalia’s rejection of “substantive due process” which implies constitutional rights from underlying constitutional values would result in overturning numerous Supreme Court decisions finding laws arbitrary which are widely now thought wrong or silly, such as laws that banned interracial marriage or use of condoms.
As Richard Posner, a federal judge, put it, “Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple’s second child and place it in a foster home.”
Another difficulty with use of history to solve constitutional disputes is that history often fails to provide specific objective directions. It can be contradictory, lacking and susceptible of multiple interpretations. As Justice Stephen Breyer has remarked, if history were really the ultimate test, the court should be staffed with nine historians rather than lawyers.
What is the alternative to originalism that allows some flexibility for the Constitution to evolve with societal and moral change but yet provide reasonable checks on judicial power? Breyer’s answer is a type of judicial pragmatism called the “living constitution” that looks to text, history, precedent, purposes, consequences and contemporary values to interpret ambiguous or vague text.
The pragmatist finds the meaning of unspecified constitutional terms such as “cruel and usual punishment” not only based upon what punishments were unacceptable in colonial times, but also current knowledge and attitudes about the effect of punishments in terms of inflicting pain and suffering. The need to publicly justify one’s decision in a way that demonstrates its coherence with text, history, precedents and underlying constitutional values as informed by the current day provides the necessary check on judicial activism.
Some historical sources suggest the framers intended a living Constitution, such as Edmund Randolph’s statement in the preamble of the Committee of Detail at the Constitutional Convention that “two things deserve attention: to insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and to use simple and precise language, and general propositions.”
However, the full record of our nation’s history may provide the best reason for choosing judicial pragmatism or not. So far it suggests to me the risk of judicial tyranny from pragmatist judges is lower than the risk of judicial tyranny from originalist judges who would uphold irrational laws that deprive us of liberty or oppress unpopular groups.
Brian Faller, a local attorney, is a member of The Olympian’s Board of Contributors. He can be reached at brianfaller@comcast.net.
This story was originally published October 12, 2011 at 12:00 AM with the headline "Is the Constitution a living document or must it be interpreted literally?."