How should judges decide what the Constitution's words mean?
"Originalists" argue they should be interpreted to mean what they meant to the people who wrote and ratified that document. Their "living Constitution" critics think that the Constitution's provisions should be interpreted as the needs of our own time require.
Both approaches make some sense. The Constitution grants the power to establish an army and a navy. It doesn't mention an air force, but few would argue that the U.S. Air Force is unconstitutional. When the Constitution was written, human flight consisted entirely of newfangled hot air balloons, which had limited military implications. A document meant for the long haul wouldn't have lasted this long if interpreted so inflexibly.
On the other hand, if the Constitution could mean anything current courts think expedient, it would place no real limits on our government. What better way to insure that it remains a stable body of law than to hold that its words mean what they were understood and intended to mean when originally written?
Unfortunately for doctrinaire originalists, "original" is itself ambiguous and needs to be interpreted. It could refer only to the Constitution as originally written in 1787. Or it could also refer to the original meaning of the clauses added since the Constitution went into effect: the 27 amendments, some of which changed the meaning of earlier amendments and of the entire document as it was originally written.
The most important changes were the Thirteenth, Fourteenth, and Fifteenth amendments, added after the Civil War. The Thirteenth abolished slavery. Among other things, the Fourteenth protected due process of law and equal protection of the law from abuse by the state governments and granted citizenship to everyone born in the United States including the former slaves. The Fifteenth guaranteed the right to vote to male former slaves.
These amendments reflected the Union's victory in the Civil War. They changed the original Constitution so much that they practically turned it into a brand new document. They decisively increased the powers of the federal government and weakened those of the states, and they were intended to do this. "Originalists," take note!
A recent book, Eric Foner's "The Second Founding: How The Civil War And Reconstruction Remade The Constitution," goes into great detail about the importance of these amendments. A recent detailed review of this book can be found here.
Arguably, these post-Civil War amendments turned the United States into a real country for the first time. Since the Civil War the prevailing verb used when speaking of the United States has been the word "is,": "The United States is going to do (this or that)." Before the Civil War the more frequent verb was "are": "The United States are going to do (this or that)."
The immediate purpose of these three amendments was to begin eliminating the consequences of America's "original sin," the enslavement of Africans who had been kidnapped and brought across the Atlantic, and of their descendants. But in the process, the Constitution was greatly improved for all Americans.
The Fourteenth Amendment, for example, was specifically intended to "incorporate" most of the protections against federal abuses specified by the Bill of Rights (first ten amendments) so that they now also protect us all from the same abuses by state governments. Thus, despite the wording of the First Amendment that "Congress [a federal body] shall make no law . . . abridging the freedom of speech..." (emphasis added), we are now also protected against abridgment of free speech by state governments.
The Fourteenth Amendment equal protection clause, although motivated largely by the desire to protect the former slaves, also benefits everyone. It provides the Constitution's main language suggesting that laws must be really general rules of action and that no legislatures are authorized to enact pseudolaws which threaten only selected parts of the population with sanctions for acting in certain ways.
Unfortunately, during the late nineteenth century the Supreme Court failed to take the Thirteenth, Fourteenth, and Fifteenth amendments seriously and to implement their original intent. The Court only began to rectify this failure during the middle of the twentieth century. More recently, though, the Court has begun to move things backwards again, including gutting the enforceability of the Voting Rights Act.
Current "originalist" members of the Supreme Court who persist in interpreting the language in the original Constitution as if these later amendments had never been added are, paradoxically, violating their own rules for interpreting legal language.
Although originalism appeals mainly to conservatives, it could sometimes be invoked by liberals. The only social science prodigy I ever knew suggested once that the Second Amendment should only protect the right to have the type of guns existing when it was enacted. "Originalist" conservatives would be horrified.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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