3

By Thomas Dannenfelser, VA

In 1789, America’s founding principles we set in ink in the form of the Constitution of the United States of America. Yet today, there exists a great divide in the interpretation of the respected document between scholars, Supreme Court justices, and ordinary citizens. The debate comes down to this: Should the Constitution be interpreted as it was written in 1789 or with a modern twist? There are two trains of thought regarding the issue. One position being the theory of a “living Constitution,”  the other is originalism.

Living Constitution theory is an outlook on the Constitution that allows the meaning of the provisions to change over time. Professor David A. Strauss of Chicago Law School defines the Living Constitution theory as one that, “evolves, changes over time, and adapts to new circumstances, without being formally amended.” President Woodrow Wilson was a prominent supporter of this ideology saying, “The old political formulas do not fit the present problems; they read now like documents taken out of a forgotten age.” Wilson argued that elements of the Constitution were outdated and therefore, a modern interpretation should be applied. Similarly, supporters today say that the Framers failed to mention important issues such as women’s rights, abortion, and immigration, therefore the Constitution, in their eyes, acts as an anachronism to today’s modern issues.

Originalism is the counter to the Living Constitution theory. Ed Whelan is director of a Washington, D.C.-based program called “The Constitution, The Courts, And The Culture.” He articulated the basis of Originalism, saying, “the meaning of various provisions of the Constitution… is to be determined in accordance with the meaning they bore at the time they were promulgated.” Whelan is critical of the idea of a contemporary interpretation, saying “it’s not flexible or adaptable. It entrenches the current preferences of the elites against change.”

Originalists hold that their system allows for consistency when interpreting the Constitution.

The late Supreme Court Justice Antonin Scalia and President Trump’s recent Supreme Court appointee, Neil Gorsuch, are two notable originalists.

The divide between Originalism and Living Constitution Theory is largely a split between progressive and conservative values. This partisanship is seen especially in the configuration of the Supreme Court, in which Living Constitution justices have been appointed by progressive presidents; likewise, conservative presidents have traditionally appointed Originalist justices. The progressive-minded may see the Constitution as antiquated, insisting that the values of the Framers of the Constitution 230 years ago are not in line with the modern reality, while conservatives would say changes can only be made to the Constitution through the amendment process, arguing that the core values of the document are timeless. As one of the most prominent subjects of the modern US era, the debate over Constitutional interpretation is sure to continue.

Advertisements