Two prominent but sharply contrasting approaches to interpreting the Constitution are “originalism” and the “living Constitution.” Debate over these competing approaches is, to a large extent, the stuff of arcane legal theory. However, the choice between them can produce strikingly different outcomes. In turn, which approach prevails can determine whether some of the most controversial and politically-charged issues facing our Nation today are resolved through democratic processes or by judicial edict.
Basics of the controversy
Both originalism and living constitutionalism involve considerable nuance and can be variously defined. At the risk of oversimplifying, originalists seek to interpret and apply constitutional provisions in accordance with the generally understood meaning of their language at the time the provisions were adopted. They view the Constitution as a document whose provisions, as thus understood, are enduring law and can be changed only by formal amendment. By contrast, living constitutionalists tend to view the Constitution as a malleable document whose meaning can change over time, without amendment, in order to accommodate evolving societal values, norms and needs. Both approaches are within the “mainstream” of contemporary legal thought; each has its share of distinguished supporters and critics. For example, the late Justice Scalia was an outspoken originalist while Justice Breyer is a leading proponent of the living Constitution. The two justices frequently debated each other on this topic.[1]
A brief history
The originalism versus living Constitution controversy arose in the early 20th Century. Until then, judges and other legal experts took for granted that originalism was the only appropriate method of constitutional interpretation. The living Constitution movement took hold in the 1930’s to counter what were regarded as overly rigid originalist Supreme Court decisions that nullified New Deal legislation. The early living constitutionalists advocated greater judicial flexibility and deference to Congress when assessing the constitutionality of laws enacted during that era, which greatly expanded federal powers. Living constitutionalism thus started out as an effort to restrain judges from impeding the democratic process of legislating. Ironically, it has come to be used in the subsequent Warren Court era and more recently to justify the judicial recognition of new constitutional rights that frequently superseded legislative enactments. Originalism has staged a comeback largely in reaction to this more recent form of living constitutionalism.
Recent living Constitution applications: Creating new constitutional rights
The current approach to living constitutionalism is exemplified by a series of Supreme Court decisions in recent decades that established constitutional rights not specifically enumerated in the document itself and previously unrecognized by the courts. The first case in the series was Griswold v. Connecticut. This 1965 decision discovered a constitutional “right to privacy” that was violated by a state statute prohibiting the sale of contraceptives to married couples. A 1972 decision, Eisenstadt v. Hodges, extended this privacy right to nullify prohibitions on selling contraceptives to unmarried couples. One year later came the Supreme Court’s landmark decision in Roe v. Wade establishing a constitutional right to abortion. A 2003 decision, Lawrence v. Texas, invalidated a statute that prohibited private sexual conduct between same-sex adults. Most recently, in Obergefell v. Hodges the Court found a constitutional right to same-sex marriage.[2]
The above decisions have two things in common. First, whatever one thinks of their outcomes, their legal rationales are less than compelling. The most nebulous, Griswold, in effect created its constitutional right to privacy literally out of thin air, famously observing that such a right was implied in “penumbras, formed by emanations from” other provisions in the Constitution. The rationale of Roe v. Wade has been roundly criticized by legal experts on both sides of the abortion controversy, including such staunch pro-choice figures as Ruth Bader Ginsburg, and had to be reworked by the Court several decades later. Justice Kennedy’s majority opinion in Obergefell is an eloquent paean to the importance of marriage and human dignity but lacks a coherent legal rationale for revising the concept of marriage that had prevailed for thousands of years.
Second, most of these decisions short-circuited democratic processes that were actively addressing the issues they involved. Banning the sale of contraceptives was largely a non-issue by the time of the Supreme Court decisions on this subject; hardly any States still had such prohibitions. The dissent in Griswold described the statute involved there as “an uncommonly silly law.” Same-sex marriage was under active consideration across the Nation and had been legalized by 37 States at the time Obergefell ended the debate. Many aspects of abortion rights, including the validity of Roe v. Wade, remain subject to intense controversy today.
Which approach is better?
No single interpretive method can consistently produce definitive answers with mathematical precision, particularly in cases where the constitutional issues are debatable enough to reach the Supreme Court. Many such cases involve provisions that lack a readily ascertainable original meaning capable of producing a clear answer.[3] However, where there is a reasonable choice to be made between originalism and living constitutionalism, I’d submit that originalism is the sounder approach. There are a number of reasons for this as outlined below.
The Constitution’s meaning must be anchored in its text. If the words don’t change, how can their meaning? Like other sources of written law (e.g., statutes), the Constitution’s meaning must be based on its text. Obviously the Constitution is not a “living” document in the sense that its language “evolves” on its own. Unless amended, the words of the Constitution say today what they said at the time of their original adoption. This includes constitutional provisions that might be considered anachronistic or objectionable by contemporary standards. To cite two examples:
- The Constitution limits presidential eligibility to U.S. citizens at birth, a restriction that could be labeled “xenophobic” today.
- It provides for presidential election through the electoral college system rather than by nationwide popular vote, a system many view as undemocratic.
Yet no one would argue that these provisions no longer mean what they say or have ceased to apply according to their original terms.[4] It’s true that many other constitutional provisions are written in much broader terms whose meaning is not self-evident from the text, such as protections from “unreasonable” searches and seizures and guarantees of “due process” and “the equal protection of the laws.” But even these broad terms have ascertainable original meanings that can often (though not always) inform their application to particular situations. For example, the basic tenets underlying the constitutional protection against unreasonable searches and seizures are enduring and readily translatable to contemporary technologies and evidence-gathering techniques that were unknown to the framers. When an original meaning can be ascertained, jettisoning that meaning without a change in the text necessarily amounts to a de facto constitutional amendment. (A similar problem has developed with regard to statutory interpretation as some courts “reinterpret” federal statutes to alter their original plain meaning. This issue is discussed in a separate post.)
Evolution of our law relies mainly on legislation, not constitutional interpretation. Opponents of originalism view it as too inflexible to keep up with contemporary needs, norms and values. It’s true that the process of amending the Constitution is very demanding; the framers did not want it to be easy. However, constitutional change is not the primary means by which our legal system evolves to keep up with the times. The Constitution is, of course, the “supreme law of the land” but it is not the primary source of our law. Federal and State statutes as well as local ordinances enacted by our elected representatives constitute the main body of American law. These legislative enactments evolve continually. New legal rights and obligations are added, modified or otherwise refined all the time. Indeed, federal statutes regularly flesh out constitutional rights. Section 5 of the Fourteenth Amendment explicitly authorizes Congress to enforce its guarantees of due process and equal protection. Congress has done just that through the enactment of many civil rights acts dealing with a variety of subjects. State and local laws often confer rights and protections that go well beyond established constitutional guarantees. In short, the development of our law rarely needs to rely on constitutional amendment.
An evolving Constitution can decrease as well as enhance existing rights. Living constitutionalists seem to regard the “evolution” of the Constitution’s meaning as a linear progression in which constitutional rights and protections only expand in response to societal changes. However, this not necessarily true. Constitutional rights can potentially come into competition with each other so that enlarging the rights of some individuals or groups diminishes the rights of others. This is not just an abstract possibility. Ominous trends in our society today demonstrate significant hostility toward what have long been considered fundamental constitutional rights. For example, many institutions of higher education are engaged in efforts to suppress free speech that some might find offensive or to limit due process protections for students accused of sexual misconduct. Thus, a living malleable Constitution whose meaning evolves to mirror societal trends can change constitutional rights for the better or for the worse.
The people’s representatives rather than unelected judges should decide when and how the Constitution needs to change to accommodate societal and cultural change. Obviously our legal system needs to evolve in response to changes in societal norms and values as well as countless other changed circumstances. In the final analysis, the key difference between originalists and living constitutionalists comes down to the question of who gets to decide when and how such changes should occur. Originalists favor leaving this decision-making to our democratic processes through the enactment and revision of legislation as well as occasional constitutional amendment if need be. Living constitutionalists seem comfortable assigning this role to judges through reinterpretation of the Constitution. But decisions about when and how shifts in societal and cultural mores justify changes to our law necessarily call for political and value judgments. Leaving this function to judges is undemocratic and tends to undermine public confidence in the courts. A good example is Obergefell, where a subject of intense national political debate was taken out of the hands of the people by the vote of a single jurist.
Of course judges are not expected (nor are they well equipped) to reflect popular opinion. Indeed, it is their responsibility to enforce constitutional rights and protections even where doing so is politically unpopular. This system works well when such rights and protections are firmly rooted in the Constitution. However, it breaks down when the asserted rights are based largely on multifaceted and controversial value judgments lacking a firm foundation in constitutional law that can be clearly articulated in judicial opinions.
Conclusion
Originalism is no magic bullet for deciding issues of constitutional interpretation. Despite its limitations, however, originalism furthers our democratic principles and promotes public confidence in the rule of law. By contrast, living constitutionalism, as advocated today, serves essentially as a justification for unelected judges to override our democratic processes and impose their policy choices on the citizenry. As such, it is deeply flawed in concept. If the living Constitution approach has any legitimate application, it is in its initial formulation of according heightened judicial deference to the judgments of the people as expressed in legislation.[5] Thus, originalism, tempered by substantial deference to legislative judgements, should be followed whenever practical in constitutional adjudication. Also, judicial nominees should be pressed in their confirmation hearings on whether they favor the originalist or living Constitution approach. Those who express a preference for the latter should be regarded with great skepticism.
[1] An illustration of the split among the justices between originalists and living constitutionalists is the Court’s recent decision in NLRB v. Canning concerning the authority of the president to make recess appointments.
[2] The next front may be transgender rights, spearheaded by efforts to redefine traditional concepts of sex from biological fact to gender identity preference. The Supreme Court was poised to decide a major case on this subject this year but remanded the case to the lower courts without a decision on the merits. The case likely will reemerge as a constitutional issue.
[3] The Supreme Court’s 5-4 decision in District of Columbia v. Heller on whether the Second Amendment confers an individual right to own firearms is an example. The justices disagreed sharply both on how the constitutional language itself should be read and on its original meaning. Another example is Brown v. Board of Education. On the issue of whether the Fourteenth Amendment’s Equal Protection Clause was originally understood to outlaw all forms of racial segregation, the Court found the history “inconclusive.” It held on other grounds that allegedly “separate but equal” segregated public schools were unconstitutional. Legal experts are still debating whether an originalist approach to interpreting the Fourteenth Amendment would produce the result in Brown.
[4] Some efforts are underway through a proposed interstate compact to effectively nullify the State-based electoral college process and elect the president by nationwide popular vote. However, these efforts are unlikely to garner enough political support to be implemented and would pose major constitutional issues even if they did.
[5] Arizona State Legislature v. Arizona Independent Redistricting Commission is an example of a decision in which this initial form of living constitutionalism prevailed over a perhaps overly rigid originalist approach.