Philosophy Essay

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“Living Constitution” vs. Original Intent 1 “Living Constitution” vs. Original Intent: Methods of interpreting the Constitution. Taiyonna Fitzgerald College of Arts and Sciences PHIL2150: Philosophy of Law Professor Medina November 28, 2023

“Living Constitution” vs. Original Intent 2 Abstract Constitutional interpretation is a topic causing much scholarly debate where the opinions differ. This abstract examines the contemporary landscape of scholarly discourse surrounding constitutional interpretation in the United States, focusing on the ongoing debate between the "living constitution", original intent, and textualism methodologies. The assessment delves into the contrasting perspectives, exploring the theoretical underpinnings and practical implications of each approach. Additionally, the abstract highlights alternative methodologies that have emerged in this discourse. By synthesizing key arguments and identifying evolving trends, this analysis provides a comprehensive overview of the nuanced discussions shaping constitutional interpretation and the diverse viewpoints within the scholarly community.

“Living Constitution” vs. Original Intent 3 “Living Constitution” vs. Original Intent: Methods of interpreting the Constitution. Introduction In the analysis of the Constitution, specifically in instances where cases must be decided based on their subjective constitutionality, individuals in the legal field often find themselves in conflict when deciding how to interpret the Constitution. In that this great work, which is the basis of our legal system and, therefore, our society, was written over 200 years ago, there is much room for interpretation in modern society. Interpretation of the Constitution is very important because the Constitution is the foundation of our legal system and the final decider in cases unprecedented. Many people differ in their beliefs about the interpretation of the Constitution which is why most legal matters are decided by a body of individuals rather than one. The conflict between legal scholars regarding constitutional interpretation is largely in part due to judicial review. Many scholars disagree with the fact the Supreme Court and federal courts have reigning power over deciding constitutionality in matters henceforth unseen, due to judicial review, but that power is not outlined in the work. New legal matters are in the hands of individuals who, despite the required experience to hold the position, are human with their own set of biases and personal beliefs. It is very difficult to differentiate between what is sound legally rather than morally, and in these seats of power, that skill is essential. Legal scholars see flaws in the ways the Constitution could be interpreted by the deciders in these courts and flaws in the uncertainty this brings to the legal system. There are common beliefs in how the Constitution should be interpreted. Most commonly, the Constitution can be perceived using originalism or living constitutionalism. Both of these ideologies stem from an individual’s beliefs on what the drafters’ intentions were for the interpretation of this work. The paper serves to assess the debate over the interpretation of the Constitution, analyze the different ideologies,

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“Living Constitution” vs. Original Intent 4 their flaws and benefits, and the ideology that is the most beneficial to our current state of governance. History The debate of subjective constitutionality has been going on for much of this country’s legal history. No one in this day in age can attest to the true intentions of the Founding Fathers when the Constitution was drafted, so much is up for debate. Times are much different than they were 200 years ago, so legal scholars, specifically those who hold seats on the Supreme Court and federal courts, must determine how we must move forward in determining the true interpretation of the Constitution while ensuring that modern-day justice is served. Unprecedented cases give judges the power of judiciary review because this specific issue is not outlined in the Constitution. In this, many judges act as legal realists and determine law based on the current state of society. Times have certainly shifted in the popularity of one ideology for constitutional interpretation over the other. Justice Scalia speaks about that shift saying, “Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy.” (Scalia, 2005, 1). In modern society, many judges practice “living constitutionalism”, but this is not spoken about openly due to the controversy behind this practice. Oftentimes times the courts take a living constitutionalist approach to understanding the constitutionality of unprecedented legal matters because of the desire for fairness and justice. Many cases deal with issues that are unseen within the courtroom. Cases include Marbury v. Madison (1803), Dred Scott v. Sandford (1857), Brown v. Board of Education (1954), Roe v. Wade (1973), District of Columbia v. Heller (2008), and Obergefell v. Hodges (2015). These are some of the more well-known cases dealing with constitutional interpretation, however, not all.

“Living Constitution” vs. Original Intent 5 District of Colombia v. Heller is a case regarding the 2 nd amendment right to bear arms. A law was passed in Washington D.C. limiting the right to bear arms in the state. Heller put in a request to be licensed to carry a firearm within his home and upon its denial Heller claimed in court that it violated his constitutional right to bear arms. The District of Colombia disagreed and ruled against him, but the higher courts ruled in Heller’s favor and ultimately declared the law itself unconstitutional. Dred Scott v. Sanford is a case that is known for having one of the poorest rulings in history. The original ruling in this case was that African Americans could not be citizens of the United States, therefore, the Constitution, in the way it protects White people, cannot protect Black people. Both cases, Dred Scott v. Sanford and District of Colombia v. Heller, were ruled from an originalist perspective. Dred Scott’s case was later amended and was overruled due to its unconstitutionality; this is more of a living constitutionalist perspective. Marbury v. Madison is a case that established a new rule of order with the Supreme Court. This case is responsible for the Supreme Court’s ability to exercise its authority to handle judiciary review. Marbury v. Madison is an example of living constitutionalism. Brown v. the Board of Education of Topeka was regarding the “separate but equal” doctrine and determining its constitutionality and functionality regarding public schooling. This case underwent much deliberation; however, the final ruling was that “separate but equal” was not constitutional in terms of public schooling. Being that this case was unprecedented, other than its legal precedent Plessy v. Ferguson, the court ruled by reflecting on the Constitution from a living constitution perspective in recognition of the changing society and social norms. Roe v. Wade, while recently overturned, was originally instated to legalize a woman’s right to abort unwanted pregnancies. This case was grounded in the right to privacy and, again, ruled in a living constitutionalism lens. The last case, Obergefell v. Hodges, similarly to the last 2 cases, was ruled to interpret the

“Living Constitution” vs. Original Intent 6 Constitution through a living constitutionalist lens. This case determined that it was unconstitutional to prohibit the marriage of same-sex couples, as is not acknowledging the couple as a legal union. Methodologies There are a lot of firm believers in a living constitution. As mentioned previously, Justice Scalia references how this is now the common method of interpretation versus the previously preferred method, originalism. “A “living constitution” is one that evolves, changes over time, and adapts to new circumstances, without being formally amended” (Strauss, 2010, 1). Many legal scholars believe that this ideology is most beneficial to our legal system in its current state because it shifts the law as society grows and develops. The case of Brown v. the Board of Education of Topeka is a well-known case in which living constitutionalism was in practice. In this case, Oliver Brown filed a class action suit in 1951 against the Board of Education of Topeka, Kansas after receiving notice of his daughter’s denial from an all-white elementary school. The case was heavily deliberated on because of the abnormality in this circumstance. Despite the controversy of integration, the court handed down the unanimous decision on May 17, 1954, that the “separate but equal” doctrine was unconstitutional, and that integration would begin. “Separate but equal” was argued in the same manner in this case’s legal precedent Plessy v. Ferguson but in this regard to a different topic. Brown argued that it was a violation of the “separate but equal” clause in the 14 th Amendment and that the segregation was implying inferiority of the Black community as was the quality of the Black schools versus the White schools. While it is an opinion, I believe that the basis behind both cases was equality for the Black community and putting an end to the Jim Crow era, however, the argument in Brown v.

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“Living Constitution” vs. Original Intent 7 Board of Education was much stronger because it involved a public necessity, good quality of education. The Constitution doesn’t have a specific way in which a case of this nature should be ruled, so the courts had to rule based on their beliefs but in a manner that was socially accepted at the time. If not for living constitutionalism, cases like these would go down in history infamously for the minority community. Ideologies such as originalism would have resulted in this case being ruled against Brown. Living constitutionalism is adaptable to society and its current ideals, therefore cases of new topics such as equality will be ruled accordingly and not in a manner which it may have been intended in the constitutional era. This ideology allows our legal system to grow into a society accepting of and legally just for all people regardless of race, sex, gender, or sexual orientation. It is the legal duty of those sworn into power to serve justice for every individual. Living constitutionalism there is no form of bondage preventing justice. In fact, “When it comes to legal disputes, the courts are the final deciders of what the Constitution means. This authority – known as judicial review – gives the Supreme Court and federal courts the authority to interpret the Constitution” ( Court Shorts: Judicial Review | United States Courts , n.d.). The power of judiciary review is one is directly linked to living constitutionalism, but it is the product of living constitutionalism. This authority is not listed in the Constitution but is now a fundamental asset to our society. Despite all the benefits of this ideology, “A living constitution is, surely, a manipulable constitution”, upon complete adoption of this practice, it “would not be the Constitution at all; in fact, it is not even law anymore. It is just a collection of gauzy ideas that appeal to the judges who happen to be in power at a particular time and that they impose on the rest of us” (Strauss, 2010, 2). Living constitutionalism makes the law subjective and subject to much alteration. As

“Living Constitution” vs. Original Intent 8 implied by Strauss, the Constitution would be a set of opinions but a sovereign power that citizens of the United States cannot argue against. Living constitutionalism can very easily shift our democracy into anarchy or constitutional oligarchy. Aside from living constitutionalism, the ideology that directly counters it. “Originalism is the antithesis of the idea that we have a living constitution. It is the view that constitutional provisions mean what the people who adopted them—in the 1790s or 1860s or wherever— understood them to mean.” (Strauss, 2010, 3). Originalism is focused on the Constitution's original intent at the time of its writing. An originalist uses assumptions of what the drafters intended based on factors such as historical context and the wording. Originalism is a more stable alternative to law when compared to living constitutionalism because it is unchanging. Originalism is a more accurate version of the law also because is very strict on following the intentions of the Founding Fathers. There is no subjectivity or opinion, it is only historical implications and accuracy. The issue that comes from originalism is that our Founding Fathers were flawed. The ideals are not the same ideals we hold today. For example, if the case of Dred Scott v. Sanford’s final ruling was determined by originalism, the country would be in a constant battle for basic civil rights. Dred Scott v. Sanford, as mentioned before, was originally ruled against Scott. The court claimed that the Constitution did not give African Americans the ability to be citizens and therefore, Scott’s arguments, that it was unconstitutional for him to continue to be enslaved despite residing in 2 non-slave states, was invalid. This ruling caused chaos and distress because it denied rights to a community of people and labeled them as property. Originalism is also flawed in that most modern legal battles “cannot be settled just by reading the words of the Constitution” (Strauss, 2010, 9). Some topics were unheard of at the time the Constitution was

“Living Constitution” vs. Original Intent 9 drafted. For example, “There is no text in the Constitution that you could reinterpret to create a right to abortion” (Scalia, 2005, 3). The same could be said about legal matters dealing with gender, sexual orientation, and race. Originalism doesn’t account for minorities and is inflexible to the current social climate. In this originalism can cause more harm than good in most cases. In conclusion, the contemporary scholarly debate over constitutional interpretation, particularly between the "living constitution" and original intent methodologies, reflects a dynamic and nuanced discourse that continues to shape the foundations of American jurisprudence. Through an examination of historical context, landmark cases, and methodologies, this assessment has sought to illuminate the multifaceted nature of this ongoing intellectual conversation. The tension between a "living constitution" and original intent persists as scholars grapple with fundamental questions regarding the nature of the Constitution and its adaptability to a rapidly changing society. The "living constitution" perspective, with its emphasis on evolving interpretations and responsiveness to contemporary values, contends with the original intent approach, which seeks to anchor constitutional interpretation in the framers' historical context and intentions. As the United States confronts new legal, social, and political challenges, the trajectory of this debate remains uncertain. The interplay between tradition and adaptation, stability and change, underscores the enduring significance of constitutional interpretation in shaping the course of American law. Scholars and jurists alike are tasked with the responsibility of navigating this tension, recognizing the need for a judiciary capable of interpreting the Constitution in a manner that balances fidelity to its founding principles with a responsiveness to the evolving needs and values of society. In essence, the current state of the scholarly debate on constitutional interpretation mirrors the vibrancy of the American constitutional system itself— adaptive, reflective, and continuously engaged in a dialogue that seeks to reconcile the timeless

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“Living Constitution” vs. Original Intent 10 principles of the founding era with the dynamic realities of the present and the unforeseen challenges of the future. As this intellectual discourse unfolds, it invites ongoing inquiry, critique, and synthesis, embodying the enduring commitment to the constitutional ideals that have shaped the United States since its inception.

“Living Constitution” vs. Original Intent 11 References Court Shorts: Judicial Review | United States Courts . (n.d.). U.S. Courts. Retrieved November 27, 2023, from https://www.uscourts.gov/about-federal-courts/educational-resources/ supreme-court-landmarks/judicial-review/court-shorts. The History.com Editors. (2009, October 27). Brown v. Board of Education: Summary, Ruling & Impact | HISTORY. Retrieved November 28, 2023, from https://www.history.com/topics/black-history/brown-v-board-of-education-of-topeka. Pallitto, R. M. (2015). In the Shadow of the Great Charter: Common Law Constitutionalism and the Magna Carta . University Press of Kansas. Scalia, A. (2005, March 14). Constitutional Interpretation the Old Fashion Way . Strauss, D. A. (2010). The Living Constitution . Oxford University Press.

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