In Keith Whittington’s book, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review , he uses a quote, originally articulated by Plato, that helps explain the diametrically opposing views the judicial system faces today:
And once a thing is put in writing, the composition, whatever it may be, drifts all over the place, getting into the hands not only of those who understand it, but equally of those who have no business with it; it doesn’t know how to address the right people, and not address the wrong. And when it is ill-treated and unfairly abused it always needs its parent to come to its help, being unable to defend or help itself.
The dichotomy that the judicial system encounters in deciding a legal case can be determined in one of two different views: using the “original intent” or “living Constitution” approach. This paper will discuss which approach should be used and why, while giving justifications for the given approach and how a defense would be constructed should an opponent challenge it.
This nation was founded upon certain unique principles of which the Framers of the Constitution thought were necessary. The Framers of the Constitution spent years fabricating and amending the influential document, which was to be the foundation of this free nation and, ultimately, the supreme law of the land. The question is, though, if the goal was to have future generations follow suit based on what the Framers had previously drafted and revised. Quite simply, is the use of the “original intent” approach to the Constitution what the Framers intended?
The approach that exercises less judgment and is more in-tune with what the Framers intended is the “original intent” approach. With this approach, the Court is restrained only to doing research finding out what a particular clause meant during that given time rather than allowing the same judges to interpret and make changes as time passes. Moreover, originalism, strict constructionism, legal formalism, and original intent can all be used interchangeably. As Judge Richard Posner states, this concept “can ‘be decided legitimately with the consent of the governed.’ Judges have no legitimate say about these issues…The judge may not use ‘discretion and the weighing of consequences’ to arrive at his decisions” (Posner 1).
For example, under the “original intent” approach, the Court would decide “…whether the ‘writings’ protected by the Copyright Clause included photographs, sculptures, performances, television broadcasts, and computer programs” and continue to explore all possibilities of what the Clause meant at that time (Brest 165). On the other hand, the “living Constitution” approach would allow the Court to interpret the same Clause and any provisions made and then make their judgment a precedent for later cases. As a result, the former approach would lead one to believe there is less judgment being exercised. Whittington further articulates the aforementioned point when he states that the original intent approach “employs the ‘imaginative vision’ of politics rather than the ‘discerning wit’ of judicial judgment” (Whittington 5). So, due to less evaluation being executed in the original intent approach, this is the path the Court should take when deciding cases involving the Constitution.
Although Brest agrees that the “original intent” approach is the most desirable when looking at the Constitution, he believes the interpreter should seek the questions differently. That is, what is the “purpose of the provision rather the intent of the Framers” (Brest 166)? He continues to state that “…statements by Framers, proponents, and opponents, together with the social and political background against which the provision was adopted, often indicate a shared understanding”. Those same sources, he says, cannot resolve particular questions about the “adopters’ intentions.” As a result, looking at the Constitution from the angle of deciding what the intentions of the Framers really were, only create a “degree of speculation that undermines the very rationale for the enterprise” (Brest 167).
It is definitely possible to approach the Constitution with original intent asking what the “purpose of a provision” meant while still keeping one’s own judgment at a minimum. As Brest uses Ronald Dworkin’s words in regards to the Cruel and Unusual Punishment clause of the Eighth Amendment, “…[the Framers] might have intended future interpreter to develop their own ‘conceptions’ of cruel and unusual punishment within the framework of the adopters’ general ‘concept of the clause'” (Brest 168). Brest also notes that the Framers could have accepted the fact that a particular “principle” would have “eventually…be applied in ways that diverged from their own particular views” (Brest 168).
United States Supreme Court Justice Antonin Scalia accepts the original intent approach as well; he believes this is a “lesser evil” compared to the living Constitution approach. He quotes John Marshall as saying in the McCulloch v. Maryland case that “we must never forget it is a constitution we are expounding” (Scalia 1). Some people would believe that Chief Justice Marshall was presupposing changing our interpretation as time changes. Scalia, though, views the statement differently from others. He states that “Marshall was saying the Constitution had to be interpreted generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future” (Scalia 1). As alluded to previously, however, many pundits discard the original intent approach to the Constitution as an “authoritative guide”. As Chief Justice John Marshall stated in Marbury v. Madison , “it is emphatically the province and duty of the judicial department to say what the law is…the Constitution is to be considered, in court, as a paramount law” (Scalia 2).
Even more paramount is when Scalia discusses Coy v. Iowa , which ultimately thwarts non-originalism:
… at the trial of a man accused of taking indecent liberties with two young girls, the girls were permitted to testify separated from the defendant by a screen which prevented them from seeing him. We held that…this procedure violated that provision of the Sixth Amendment…Let us hypothesize that modern American society is much more conscious of, and averse to, the effects of ’emotional trauma’ than was the society of 1791, and that it is much more concerned about the emotional frailty of children and the sensitivity of young women regarding sexual abuse…Would it not have been possible for the Court to hold that, even though in 1791 the confrontation clause clearly would not have permitted a blanket exception for such testimony, it does so today (Scalia 4)?
With this statement, Scalia makes a marvelous point and one that raises many questions yet to be answered.
As Scalia views originalism of the Constitution the lesser of the two evils, he finds flaws with this approach as well. The major blemish he finds with originalism is “the difficulty of applying it correctly”. He states that it is very problematic to ascertain the genuine understanding of “an ancient text” (Scalia 4). Furthermore, if this process is done properly, the task “requires the consideration of an enormous amount of material and the reliability of said material”. It also demands one to “immerse him or herself” in the political realm putting all prejudices aside. “It is, in short, a task sometimes better suited to the historian than the lawyer” (Scalia 4).
As previously mentioned, Justice Scalia prefers originalism over nonoriginalism for a myriad of reasons. Scalia states quite adamantly that he takes hypothetical legitimacy quite seriously, “and even if one assumes that the Constitution was originally meant to expound evolving rather than permanent values…I see no basis for believing that supervision of the evolution would have been committed to the courts” (Scalia 6). He continues to express that original intent is “more compatible with the nature and purpose of a Constitution in a democratic system” (Scalia 6). Moreover, Scalia states that a democratic society does not need guarantees in the Constitution insuring laws “will reflect ‘current values’.” Elections, he says, take care of that situation.
Lastly, Scalia molds a statement in favor of approaching the Constitution using originalism when he articulates that the “defects of originalism are defects more appropriate for the task at hand – that is, less likely to aggravate the most significant weakness of the system of judicial review and more likely to produce results acceptable to all” (Scalia 6).
Justice Rehnquist, also an advocate for the original intent approach, painted a grim illustration for proponents of the loose constructionism or living constitution approach. He stated there were two types of documents: a “living” Constitution and a “dead” Constitution. Most individuals, at first glance, see the “living” Constitution as the approach to follow rather than the “dead” Constitution. The term “dead” brings about, beyond any doubt, a negative connotation. As a result, these individuals attempt to persuade others into becoming proponents of the “living” Constitution based off of the brainwashing propaganda they express. This term, however, is not what it implies. As stated previously, using a “dead” Constitution was not one of the terms that is often used interchangeably. If loose constructionists were to replace “dead” Constitution with one of the four terms: originalism, strict constructionism, legal formalism, or original intent, perhaps they could garner a larger public opinion in believing the “dead” Constitution is a more feasible and desired approach than that of a “living” Constitution (Rehnquist 1).
In regards to the living Constitution approach, there is one advantage over interpreting the Constitution based off of its original meaning. As Brest points out, in the 1920 case of Missouri v. Holland , Justice Holmes wrote: “…we must realize that [the Framers] have called into life… the development of which could not have been foreseen completely by the most gifted of its begetters. We must consider what the country has become in deciding what the Amendment has reserved” (Brest 172). With this approach, it conforms to society’s evolving needs and beliefs.
Opposingly, Justice Thurgood Marshall asserted that the Constitution was never intended to be interpreted on the basis of “original intent.” Furthermore, because of the fragmented government that required “…several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights,” Marshall believed the Framers’ “…wisdom, foresight, and sense of justice” was faulty at best (Marshall).
Did Marshall undoubtedly anticipate this nation being constructed similarly to a utopia? No nation has been created as such, but rather by trial and error; nothing is ever perfect on the first attempt. Justice Scalia backs this statement when he states, “I suppose I must respond that this is a world in which nothing is flawless.” Moreover, who are we to determine what the Framers could or could not have imagined or accepted. Instead, let us focus on what they originally intended or the purpose of the provisions that they put forth. However, unlike the “original intent” approach, following the “living Constitution” path doesn’t address the purpose of any given provision, it simply uses judgment with very little to do with the original intent of the Framers.
Of the many faults associated with approaching a case using a “living” Constitution, Justice Scalia is quick to suggest such flaw:
But when it is in the mind of a Court that believes the Constitution has an evolving meaning; that the Ninth Amendment’s reference to ‘other’ rights is not a disclaimer, but a charter for action; and that the function of this Court is to ‘speak before all other for constitutional ideals’ unrestrained by meaningful text or tradition – the notion that the Court must adhere to a decision for as long as the decision faces ‘great opposition’ and the Court is ‘under fire’ acquires a character of almost czarist arrogance (Scalia 464).
As he points out, such Courts having the belief in a “living” Constitution approach gives the individuals involved a chance to use his or her judgment with biases by his or side. As a result, cases should be decided by interpreting the Constitution based on what the Framers had originally intended and what they had provisioned.
This paper has discussed two different approaches one can take in interpreting the Constitution: the original intent approach or the “living” Constitution approach. The original intent approach, as backed by numerous Justices that served or are serving for the United States Supreme Court, allows one to rule on a case based on what is written down, thus eliminating judgment and bias. Moreover, this allows for a case to be ruled objectively rather than subjectively. This paper has also outlined flaws for both approaches and, as one can infer from this work, both could work well if used correctly. Applying the original intent approach to the Constitution, however, is the “lesser of the two evils.”