VIII.6: Originalism versus the Living Constitution

A war of opinions has roared ever since the U.S. Constitution was written. In other words, how should we interpret it?

The argument is about originalism versus the living constitution view. That is:

1. Should we set the Constitution’s meaning in stone according to the opinions of its creators? This view is called originalism, or strict constructionism.
2. Or should the interpretation change as Americans’ opinions change? This view is called the living constitution view or loose constructionism.

Strict construction of the Constitution means following the letter of the law. By contrast, loose construction means following one’s opinion of its spirit. Some believe that following its spirit is more in line with human progress. But is it wise to give the Supreme Court the absolute power to decide what that spirit is? Does that mean the courts can essentially rewrite laws? Moreover, does it mean they can change the Constitution to their own liking by changing what the words mean? Many see the power to define the Constitution’s spirit as a naive invitation to tyranny at the absolute pinnacle of all American power.

Most of the higher members of the U.S. judiciary are appointed for life. That makes them independent of the majority, so they can represent minorities.

Majorities have always committed injustices against minorities throughout the world. So the judiciary does not and should not depend on the majority for re-election. But judges have molded our political theory to increase judicial power to the point of making policy decisions. This is far beyond the limits conceived by our founders. (Ceaser 1986, 191)

Congressman Ron Paul says congressmen can ensure their re-election by giving potential voters whatever they want, even if it’s unconstitutional. And court allies can help them get away with it and avoid bothering with constitutional amendments. So he asks why even have a constitution at all. (Paul 2008, 45-6)

Woodrow Wilson championed the living constitution view, and Thomas Jefferson championed the originalist view.

Wilson wrote:

The question of the relation of the states to the federal government…. cannot, indeed, be settled by the opinion of any one generation, because it … is constantly changing, for it is the life of the nation itself…. (Wilson [1907] 1917, 173)

And Jefferson wrote:

I had rather ask an enlargement of power from the nation [by amendment], where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by [loose] construction. (Jefferson 1803)

Today, the living constitution view dominates in legal arguments about originalism versus the living constitution.

The living constitution view allows the courts to effectively rewrite the Constitution, as well as statutory law, as they see fit. They can do this without bothering with the cumbersome process of amendments. And the people don’t even elect the most powerful court officials. Yet those unelected officials get to declare what the people think. How dangerous is that to our liberty?

Where the Constitution is interpreted by a court from which there is no appeal, and which by its own decision can increase its own power, it is apt to invoke implied powers with considerable latitude. A strict construction of the Constitution is the constant security of the people against tyrannical government. (Pierce 1908, 211)

But now let’s play devil’s advocate. Imagine that the power to interpret the constitution was taken from the courts and returned totally to the people. How could we measure every citizen’s views about every issue in every legal case? Can you imagine such a chaotic and inconsistent legal system? And would that increase injustices against minorities?

So which do you believe?

1. In the arguments about originalism versus the living constitution view, the opinions of the writers of the Constitution should override current opinions.
2. The courts should decide what you and I think the words of the Constitution mean today.
3. The current generation should decide for itself what those words mean.

If you choose #3, how could that we accomplish that in a way that is both practical and orderly?

This site is for discussing how to improve our political system. It is NOT for discussing party politics or political figures. So if you have a non-partisan question or comment, feel free to leave it below.

Sources:

Ceaser, James W. 1986. “In Defense of Separation of Powers”. In Separation of powers—does it still work?, ed. Robert A. Goldwin and William A. Schambra. Washington: American Enterprise Institute for Public Policy Research.

Jefferson, Thomas. 1803. Letter to William C. Nicholas on Sep. 7. Constitution Society. http://www.constitution.org/tj/ltr/1803/ltr_18030907_nicholas.html (Accessed Jul. 13, 2018).

Paul, Ron. 2008. The Revolution, a Manifesto. New York: Hachette Book Group.

Pierce, Franklin. (1908). Federal Usurpation, p. 162. New York: D. Appleton and Company.

Wilson, Woodrow. [1907] 1917. Constitutional Government in the United States. ??. New York: Columbia University Press. https://archive.org/details/constitutionalg00wilsgoog (Accessed Jul. 9, 2017).