Originalists today make, interpret and enforce the law by the original meaning of the Constitution as it was originally written.[1] The original meaning is how the terms of the Constitution were commonly understood at the time of ratification.[2] Most, if not all Originalists begin their analysis with the text of the Constitution.[3] Similarly, Textualists consider the Constitution in its entirety to be authoritative.[4] Proponents of Originalism argue, among other things, that Originalism should be the preferred method of interpretation because it binds judges and limits their ability to rule in favor of changing times.[5] Distinctly, Living Constitutionalists are guided by the Constitution but they proffer that it should not be taken word for word with any possibility of growth.[6] In other words, they suggest that the Constitution should be interpreted through the lens of current day society.[7] Proponents of Living Constitutionalism contend that allowing for growth is natural given that the Constitution is broad and limitations are not clearly established.[8]
Originalism and Living Constitutionalism are the two primary forms of constitutional interpretation employed by the Supreme Court.[9] Originalism, and its companion Textualism, is commonly associated with former Supreme Court Justice Antonin Scalia.[10] According to Justice Scalia, the constitution has a static meaning.[11] Likewise, he further explains that Originalism’s essential component is the ability to understand the original meaning of constitutional provisions.[12] To illustrate Justice Scalia’s method of interpretation arises his dissent in Morrison v. Olsen.[13] In Morrison, an independent counsel’s authority under the province of the Executive Branch was upheld.[14] In other words, the independent counsel worked in the Executive Branch but the President, personally, had no control over the independent counsel.[15] In his dissent, Justice Scalia combined Originalism and Textualism to combat the majority’s ultimate conclusion.[16] Using Originalism, he illuminated the intent of the Framers of our constitution followed by noting the text of Article II, which expressly states “The executive Power shall be vested in a President of the United States.”[17] With this language, he determined that the text of the constitution indicates that all federal power is vested in the President – not just some.[18]
Living Constitutionalism, on the other hand, is commonly associated with more modern jurisprudence.[19] In Griswold v. Connecticut, distinctly, the Supreme Court solidified the “right to privacy” not expressly written in the Constitution.[20] Griswold utilized aspects of Living Constitutionalism to establish a “right to privacy” using the First and Fourth Amendments, among others, as the vehicle.[21] In just the past few years, Obergefell v. Hodges is illustrative of Living Constitutionalism in an even more contemporary setting.[22] In Obergefell, Justice Anthony Kennedy’s majority opinion noted that marriage – heterosexual or homosexual – is a fundamental right protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.[23] Justice Kennedy marked throughout his opinion that the history of marriage is one of continuity but also “change.”[24] Justice Kennedy went on to assert, “. . . changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”[25] With newfound understandings and changing times, Justice Kennedy employed the core element of Living Constitutionalism.[26]
[1] Jason Swindle, Originalism Vs. “Living Document”, Swindle Law Group (Oct. 29, 2017) www.swindlelaw.com/2017/10/originalism-living-constitution-heritage/.
[2] Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 N.Y.U. J. L. & Liberty 494, 497 (2009).
[3] Swindle, supra note 1.