living constitution vs originalism

• Originalism: Belief that interpretation of US Constitution should be based on intended meaning of Founding Fathers/authors of constitutional amendments and/or common understanding of people of the day.

• Living constitution: Idea that Constitution is evolutionary document - can change over time through reinterpretation by Supreme Court

• Loose Constructionism: Legal philosophy, favours broad interpretation of document’s language. Term often used to contrast w strict construction – a philosophy that favours solely looking at written text of the law.

is the living constitution approach superior to originalism? (modern society v history)

• The living constitution promotes an up-to-date constitution that is suitable for modern circumstances.

  • It may have been acceptable for the President to consult Congress before military action – but nuclear missiles and jet engines make that less desirable.

• Over time Supreme Court has allowed a major growth in the power of Federal Government over the states, with no changes to the wording of the Constitution.

  • Growth of a national and international economy requires far more centralised planning and control. 

• Originalism can easily be applied to modern circumstances. Fourth Amendment freedoms can be applied to cell phones as well as houses. Free speech can mean the written word or published internet. The principles remain the same.

• Like any historical text, it is possible to appreciate the authors' meaning and the commonly held views of the time.

  • Riley v. California (2014) demonstrates that an originalist approach can be applied to the right to privacy, as it protects citizens from unreasonable searches of their private domain.

is the living constitution approach superior to originalism? (objectivity and bias)

• The living constitution approach is just as objective as originalism. Originalists choose to be originalists because it creates conservative outcomes.

• The living constitution protects the document's authority by making it more relevant to modern society.

• It is impossible to discern the Founding Fathers' intentions and therefore difficult to claim authority when a ruling was based on those intentions.

  • Debate on the second amendment.

• The living constitution approach is biased. Originalism takes the views of authors of the Constitution, not the views of the justices. Liberals adopt a living constitution approach to get the liberal outcomes they want.

• The living constitution undermines the authority of the document due to bias.

  • Roe v Wade and Obergefell v Hodges – both of these were living constitution interpretations that arguably stoked conflict.

is the living constitution approach superior to originalism? (rights protection)

• Accepting the values of the Founding Fathers risks wiping out major developments in rights, especially with race, gender and sexuality. We cannot accept the personal values of the Founding Fathers in this area.

• Interpretive amendments are essential because the US Constitution is excessively difficult to change. The Constitution would be out of touch with modern values on rights if the court did not update its meaning for society today.

• Originalism can deliver liberal or conservative results - not biased.

• Not justices’ job to deliver what we think is good/right but to protect constitutional rules until changed by politicians.

  • Justices can’t make up rights that simply do not exist in the Constitution. In Dobbs, the court did not ban abortion using an originalist position but said that there is no guarantee of this right in the Constitution.

quickfire questions

• What are the main theoretical differences between a political and a judicial body?

Political bodies make decisions based on public opinion, ideology, or party interests, while judicial bodies focus on interpreting and applying the law. Political bodies are accountable to voters, whereas judicial bodies are insulated from public opinion to maintain impartiality.

• In what ways can the Supreme Court be described as political?

Supreme Court can be seen as political when its decisions reflect ideological divides or influence public policy. The appointment process and justices' potential biases may also align with political agendas.

• In what ways can the Supreme Court be described as judicial?

Its role of interpreting the law, ensuring compliance with constitution, and resolving disputes impartially. Its decisions are grounded in legal reasoning and precedents.

• What is the difference between originalism and the living constitution?

Originalism interprets the Constitution based on its meaning at the time it was written, while the living constitution approach adapts its interpretation to modern values and societal changes.

• What are the advantages of originalism?

Originalism provides consistency, predictability, and limits judicial activism by adhering to the Constitution's original meaning.

• What are the advantages of the living constitution?

living constitution approach allows for flexibility, ensuring laws remain relevant and responsive to societal progress and evolving norms.