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Constitution 101: Originalism versus a Living Constitution (Part I)

Published in Blog on November 22, 2024 by Patrick Bohan

Originalism

The Constitution is like any written contract in that it should be interpreted textually. According to Randy Barnett (Georgetown Law Professor) the parole evidence rule suggests that contracts must be interpreted using originalism. Barnett says the rule “rejects evidence that contradicts the meaning of the contract at the time of its formation.” The originalist interpretation of the Constitution is no different according to Barnett, “Written documents cease to perform their function if meanings can be changed in the absence of an equally written modification or amendment.” Furthermore, Barnett states, “overriding written contracts to reach results that some deem superior places the rights of everyone at peril.” 

A living constitution suggests the Supreme Court should have some discretion to change the meaning of the Constitution to keep up with advances in modern society. What is holding the government accountable if the process to change the Constitution is in the hands of a few politicians and jurists? Unfortunately...nothing, because a living constitution allows legislators and jurists to inject their opinion, prejudice, and bias which ultimately expands federal power at the expense of the rights of citizens. Therefore, it is imperative for jurists to decide cases based on the original meaning of the Constitution. Otherwise, the Constitution is no longer a binding contract to protect our rights. 

Marbury v. Madison

In Marbury v. Madison (1803), Chief Justice John Marshall granted the Supreme Court the power of judicial review. Judicial review provided the Supreme Court with the power to not only review any federal and state legislation, but to nullify and void any unconstitutional congressional and state laws. In other words, the power of judicial review is what allows SCOTUS to hear just about every case that appears on its docket. That said, judicial review never provided SCOTUS with judicial superiority to allow them to enforce their rulings, to legislate from the bench, or change the meaning of the Constitution to address modern advances in society.

 Although Marbury is widely accepted today for its judicial review precedent, it did not provide SCOTUS with the power to inject bias, opinion, and prejudice into its decisions. Unfortunately, judicial superiority appears in many Supreme Court decisions in which Congress is directed to carry out Supreme Court mandates, regulations, and legislation that they claim is necessary to keep up with advances in modern society. 

In Federalist Paper 78, Alexander Hamiliton explains that the judicial branch of government should be the weakest branch of government. Thus, the powers of the Supreme Court are very limited, and they therefore have no grant of power to change the meaning of the Constitution to keep up with advances in modern society. 

Living Constitution Arguments

Arguments against originalism include, the founders are dead and cannot rule from the grave. Additionally, it is argued that since the founders were only white males, the Constitution fails to represent the diversity of modern America. Moreover, it is contended that many Founding Fathers were slaveholders and therefore were both racist and sexist. Of course, the justices who upheld FDR’s intrusive New Deal legislation are also deceased white men with racist and sexist tendencies, but that has not stopped modern justices from upholding their unconstitutional precedent. 

Liberals also argue the text of the Constitution is open-ended making it a living document. If that were true, then there would be no reason for SCOTUS to regularly change the meaning of constitutional provisions. There are a few clauses, such as the Ninth Amendment or the Privileges and Immunities Clause of the Fourteenth Amendment, that are certainly open-ended and allow for the discretion of justices to protect unenumerated fundamental rights. On the other hand, the Commerce as well as, the Necessary and Proper clauses are not open-ended, but that has not stopped SCOTUS from turning these static clauses into elastic or dynamic clauses to cover anything Congress desires or imagines. 

If the founders intended the Constitution to be a living document, then why write a constitution in the first place? The answer to this question is obvious, the founders did not want the Constitution to be a living document, instead, they expected it to be followed as the law of the land. 

Supremacy Clause

The Supremacy Clause (Article VI, Section II) of the Constitution states, “This Constitution shall be supreme law of the land” and that “judges in every state shall be bound thereby.” In other words, the Constitution makes it clear that judges should interpret the Constitution in its original form. The Supremacy Clause implies any interpretation of the Constitution that is not based on the document’s original textual meaning is unconstitutional. 

Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects. 

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