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Originalism vs. Living Constitution

Judicial Review and Constitutional Interpretation

Marbury v. Madison in 1803 established the Supreme Court's power to review federal actions. This power expanded to state actions too.

The Court must interpret the Constitution. The Second Amendment's 27 words sparked debate until 2008 when the Court ruled it covers individual gun ownership. The Fourth Amendment required interpretation for digital content on cell phones.

Judicial review involves textualism and originalism. Textualism sticks to the text, while originalism considers historical meaning. Living constitutionalism sees the Constitution as dynamic, adapting to modern standards.

The Court's decisions mix methods. Precedent plays a role, as in Planned Parenthood v. Casey upholding Roe v. Wade.

Originalism and living constitutionalism clash. Both claim to keep the Court in check. Critics argue:

  • Originalism is too rigid
  • Living constitutionalism gives justices too much power

The Supreme Court's interpretation remains crucial in shaping American law.

A historical reenactment of the Marbury v. Madison case in an early 19th-century Supreme Court chamber

Textualism

Textualism focuses on the plain meaning of the Constitution's text at the time of ratification. It's about understanding 18th-century context, not ignoring it.

Justice Hugo Black championed textualism. In Dennis v. United States, he dissented, arguing the First Amendment's Congress shall make no law… abridging the freedom of speech meant exactly that. In Griswold v. Connecticut, he rejected the majority's "right to privacy" interpretation, stating the Constitution's text contained no such right.

Pros and Cons of Textualism:

Pros Cons
Promotes stability and predictability May be too rigid for modern life
Reduces judicial activism Can't address unanswered questions
Keeps interpretation simple and transparent May limit protection of fundamental rights

Textualism remains a contentious approach, with supporters viewing it as a safeguard against judicial overreach and critics seeing it as an obstacle to addressing contemporary issues.

Portrait of Justice Hugo Black examining the text of the Constitution with a magnifying glass

Original Meaning

Originalism focuses on the Constitution's original public meaning. It asks what a "reasonable person" at ratification would understand the text to mean.

Justice Antonin Scalia popularized this approach. In District of Columbia v. Heller, he used 18th-century sources to argue the Second Amendment protected individual gun ownership1.

Critics say originalism:

  • Ignores modern issues and societal progress
  • Is impractical for judges to act as historians
  • Can cement past prejudices

Proponents defend originalism as:

  • Democratic
  • Limiting judicial activism
  • Providing legal stability
  • The purest form of constitutional fidelity

The debate centers on whether to trust a static historical interpretation or a fluid one adapting to societal changes. Originalism aims to keep the Constitution's original force and purpose, while critics fear it neglects evolving rights and challenges.

Justice Antonin Scalia speaking passionately about originalism at a podium

Living Constitutionalism

Living constitutionalism reshapes the Constitution as society evolves. This approach gained traction with Trop v. Dulles in 1958, where the Supreme Court ruled that stripping citizenship from a military deserter was unconstitutional, citing "evolving standards of decency."

Griswold v. Connecticut in 1965 further expanded this approach. The Court invalidated a law banning contraceptives for married couples by inferring a "right to privacy" from the Bill of Rights, calling it "penumbras" formed by "emanations" of specific guarantees.

Living constitutionalism has influenced civil rights rulings, including:

  • Prisoners' rights
  • Healthcare access
  • Death penalty restrictions for juveniles and people with intellectual disabilities

Critics, especially originalists, view this as judicial overreach, turning judges into unelected lawmakers. They argue it allows justices to retrofit the Constitution to fit their ideologies, potentially reversing established rights based on current judges' views.

Defenders assert that dynamic interpretation is necessary to address contemporary issues the Founders couldn't predict, like digital privacy or modern medical rights. This flexibility allows the Constitution to remain relevant without constant amendments.

The debate between living constitutionalism and originalism continues to shape the Supreme Court's approach and the future of constitutional interpretation.

The Constitution document juxtaposed with modern technology symbols

The Eighth Amendment and Evolving Standards

The Eighth Amendment's prohibition on "cruel and unusual punishments" has become a battleground between originalist and living constitutionalist interpretations. Trop v. Dulles introduced the concept of "evolving standards of decency," shifting away from the original 1791 understanding.

The upcoming Grants Pass v. Johnson case could significantly impact this interpretation. It questions whether banning homelessness criminalizes existence itself. The Ninth Circuit ruled that criminalizing sleeping outside when no shelter is available is "cruel and unusual" punishment, applying the evolving standards approach.

If the Supreme Court rejects the evolving standards approach in Grants Pass, it could mark a return to originalist interpretation.

This might dismantle decades of rulings that used evolving standards to address prison conditions and protect vulnerable groups from disproportionate penalties.

Proponents of evolving standards argue it prevents an outdated justice system, while opponents see it as judicial overreach that makes the Constitution subject to changing cultural norms.

The Grants Pass case presents a clear choice between continuing to apply evolving standards or returning to the Eighth Amendment's original meaning. This decision could significantly impact criminal justice and civil rights, reflecting the broader conflict between originalism and living constitutionalism.

A split image showing an 18th-century prison cell contrasted with a modern prison facility

The Future of Constitutional Interpretation

The current conservative-leaning Supreme Court is likely to prioritize originalism in judicial philosophy. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett have shown commitment to originalist principles, with Chief Justice Roberts generally aligning closer to this approach than to living constitutionalism.

This shift may challenge arguments based on "evolving standards of decency." Recent trends, such as the overturning of Roe v. Wade, suggest a move towards dismantling decisions rooted in living constitutionalism.

Originalism is poised to influence interpretations of the Bill of Rights and broader American law. Expect more historically-grounded readings of the Constitution, potentially transforming areas like:

  • Second Amendment rights
  • Fourth Amendment privacy rights
  • Eighth Amendment interpretations of punishment conditions

This approach may impact policy sectors including immigration, healthcare, and federal regulations. The Court could tighten restrictions, demand clearer legislative intents, and limit expansive executive actions.

While the debate between originalist and living constitutionalist philosophies continues, the current judicial climate favors originalism. This shift may increase legal predictability but could also unsettle established rights and practices, potentially spurring legislative responses or renewed focus on constitutional amendments.

The evolving landscape of constitutional interpretation will likely produce significant shifts in jurisprudence, generating disputed rulings, impassioned dissents, and active public discourse on the appropriate path for interpreting the Constitution.

The current conservative-leaning Supreme Court Justices in their official robes

The Supreme Court's method of judicial review and constitutional interpretation remains a powerhouse. Through scrutinizing laws and framing their meanings within broad constitutional texts, the justices ensure the document endures as the bedrock of American law.