September 15, 2011
A Living Constitution?
“An unchanging Constitution would fit our society very badly. Either it would be ignored or, worse, it would be a hindrance, a relic that keeps us from making progress and prevents our society from working in the way it should.”
David A. Strauss
Univ. of Chicago Law School
“Well, I’ve talked about some of the false virtues of the Living Constitution, let me tell you what I consider its principle vices are. Surely the greatest — you should always begin with principle — its greatest vice is its illegitimacy.”
Justice Antonin Scalia
The world is full of great rivalries. There’s the Yankees and the Red Sox, Ohio State and Michigan, Microsoft vs. Apple, Rome vs. Carthage or the Hatfields and the McCoys. When it comes to the legal world, however, one doesn’t typically think of great rivalries. Yet in the field of constitutional law lies a great rivalry that has the potential to have a major impact on the lives of all Americans.
That great legal rivalry surrounds the very basic theories by which we interpret our Constitution. The founding document of our system of government will turn 225 years old next year. It was written in a time very different from the age we live in and yet remains the key document in our society. Further, it served as the basis for countless state and national constitutions around the nation and around the world.
How then, 224 years later, should we interpret constitutional questions? Should we examine the original document to determine what its words mean or what the people who drafted it meant? Should we examine how society has changed since its drafting and work to make the document fit into a modern setting? This tension is the underpinning for many constitutional battles.
On the one side is the concept of ‘originalism’. Actually a conglomeration of several related theories, it can refer to persons who look to the original intent of the drafters of the Constitution or to those who look to the original meaning of the words that make up the text (regardless of the intent of the people who wrote them). On the other side of the debate is what is often referred to as a “living Constitution”- a malleable document that can adapt to changes without the need for formal amendment.
Supporters of the living Constitution model argue that it is necessary in order to prevent the Constitution from becoming an outmoded relic that doesn’t function. They claim that the process to amend the Constitution is simply too cumbersome to be done regularly and that the judicial process should be allowed to work to adapt constitutional provisions into modern times.
Supporters of the originalist models note first that they do not believe that a living Constitution can even be considered. This is not because the system would be unworkable but because they argue that a living Constitution would require unelected judges and justices to make decisions that changed basic rights and privileges in our country and that such a system would be fundamentally illegitimate. Instead, they look to the original intent or meaning of the words and, if amendment is necessary, point to past amendments in our constitutional history as proof that those changes can happen. Further, they argue, statutory changes can be made at the state and federal level to adjust legal guidelines that now frequently come before the Supreme Court as issues of constitutional interpretation.
Not only is the American judiciary split on how to interpret the Constitution, but so is the American public. This summer the Pew Research Center surveyed American adults on this very issue. Fifty percent of respondents supported the living Constitution theory and 45 percent supported originalism. Several factors swayed those percentages.
On the political spectrum 70 percent of Republicans supported originalism and 65 percent of Democrats supported a living Constitution. Age, gender and ethnicity factored in as well. Younger Americans (62 percent) supported the living model as compared to just 35 percent of seniors. Men were evenly split while a larger percentage of women supported the living model. Caucasians were evenly split but 60 percent of African-American and Hispanic respondents chose the living model.
The debate is nearly a century old and as we approach the document’s 225th birthday, it seems unlikely to end anytime soon.
David Hejmanowski is a magistrate and court administrator of the Delaware County Juvenile Court and a former assistant prosecuting attorney.