60TAKE
A S TA N DChapter 2 | The Constitution and the FoundingA Living Constitution?
Should the Constitution be viewed as a flexible framework
or a document that has fixed meaning? The public is evenly
split on this issue, with 49 percent saying that constitutional
interpretation should be based on “what it means in current
time” (the living Constitution approach) and 46 percent
saying that it should be based on “what it originally meant”
(originalism). However, there is a deep partisan divide on
this issue, with 70 percent of Democrats taking the living
Constitution approach and 69 percent of Republicans
supporting originalism.aThe meaning of the Constitution doesn’t change.
Justice Clarence Thomas is perhaps the strongest advocate
of the originalist view. He wrote: “Let me put it this way; there
are really only two ways to interpret the Constitution—try to
discern as best we can what the framers intended or make it
up.”b Former chief justice William Rehnquist, although generally
adhering to the originalist view, took a more nuanced approach.
He favorably cites a 1920 Supreme Court opinion by Oliver
Wendell Holmes: “When we are dealing with words that also
are a constituent act, like the Constitution of the United States,
we must realize that they have called into life a being the
development of which could not have been foreseen completely
by the most gifted of its begetters.”c John Marshall in McCulloch
v. Maryland also endorses this view, saying the Constitution
was “intended to endure for ages to come, and consequently to
be adapted to the various crises of human affairs.” Rehnquist
says that “scarcely anyone would disagree” with the idea that
the Constitution was written broadly enough to allow principles
such as the prohibition against illegal searches and seizures to
apply to technologies, such as the telephone or the Internet,
that could not have been envisioned by the framers.d
However, according to this view, the meaning of the
Constitution cannot change with the times. Rehnquist writes
that “mere change in public opinion since the adoption of the
Constitution, unaccompanied by a constitutional amendment,
should not change the meaning of the Constitution. A merely
temporary majoritarian groundswell should not abrogate
some individual liberty truly protected by the Constitution.”e
Therefore, recent rulings restricting the death penalty (which
is clearly endorsed by the Constitution), expanding gay
rights, or allowing children to testify remotely against their
sexual abusers rather than having to confront them directly in
court (as guaranteed by the Sixth Amendment) would all be
inconsistent with the originalist view. This view would also hold
that anything other than relying on the meaning of the words
of the Constitution allows justices to “legislate from the bench,”
which is undemocratic given that the judges are not elected.There is a vigorous debate among justices of the Supreme
Court as to whether the Constitution is a living document or
should be interpreted more strictly according to the original
intent of the framers.The meaning of the Constitution changes with
the times. Proponents of a living Constitution argue for a
more flexible view. Justice Thurgood Marshall advocated a
living Constitution, noting that the framers “could not have
imagined, nor would they have accepted, that the document
they were drafting would one day be construed by a
Supreme Court to which had been appointed a woman and
the descendent of an African slave.”f If the meaning of the
Constitution is fixed, then the Court would have to uphold
a state law allowing the death penalty for horse stealing,
which was common during the Founding era. Executing
horse thieves, or, more realistically, children and the mentally
impaired (which was allowed in many states until 2005), is
unacceptable in a modern society, even if it would be allowed
by a strict reading of the Constitution.
Answering the question about how justices should
interpret the Constitution ultimately depends on one’s
broader views of the proper role of the Court within a
representative democracy. Should justices be constrained
by the original meaning of the Constitution, or should that
meaning evolve over time?take a stand
- If you were on the Supreme Court, would you adopt an
originalist or a living Constitution approach? Justify your
position. - Based on the originalist view, should a state be allowed
to execute whomever it wants to, including minors
(or horse thieves)? Based on the living Constitution
approach, should limits be placed on justices to prevent
them from “legislating from the bench”?
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