Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.
— Antonin Scalia
The late Justice Scalia was one of the most well-known proponents of originalism, the view that the words of the US Constitution should be interpreted as they were when they were written. This view is opposed to living constitutionalism, which is the view that the meaning of the words of the constitution evolves as our society evolves.
Originalists usually subscribe to one of two main theories of meaning: the theory of original intent or the theory of original meaning. The former holds that we should interpret the Constitution as those who drafted it intended, while the latter holds that we should interpret the Constitution as people living at the time of its adoption would have understood the meaning of the text to be. Justice Scalia, along with the majority of originalists, falls into the original meaning camp.
One of the reasons originalists subscribe to their view is that they feel the judicial branch should not be in the business of creating new laws and changes to our policies. Instead, these decisions should be left to the legislative branch and to our democratic process. Furthermore, the meaning of the constitution is mostly static, and determining the original meaning of the words in our Constitution is usually easier than trying to figure out what the Constitution means now and in the X number of years.
On the other side, supporters of the living constitution argue that our society goes through periods of social change, and our constitution should be able to adapt to these changes. For example when our founding fathers wrote of equality, they meant equality of white, land-owning men. Thankfully, our society has grown to value the standing of others (although we still have a way to go). While the drafters of the Constitution did not envision the right to an abortion or the right to marry someone of the same sex as you as rights granted by their text, we as a society now recognize these rights (with Roe v. Wade and Obergefell v. Hodges respectively).
Justice Ruth Bader Ginsburg and Justice Stephen Breyer are among the Court Justices supporting living constitutionalism, while Justice Clarence Thomas and Justice Neil Gorsuch are among the supporters of originalism. While there are exceptions, originalists tend to be on the conservative side of the political spectrum while supporters of the living constitution tend to be on the more liberal side.
Justice’s method of interpreting the Constitution has a fundamental impact on their rulings. Looking at a history of Justice Scalia’s opinions shows how integral originalism is to his arguments, while a history of Justice Ginsburg’s opinions shows the same is true for the other side.
While there are compelling arguments in support of originalism, we should interpret the Constitution as a living document in line with the view of living constitutionalism.
Perhaps originalism would be the preferred interpretation method in an ideal world where the framers of our constitution intended full equality for all citizens and our political system actually worked quickly and efficiently in the interests of every citizen. Unfortunately this is not the case, and our judicial system must bear part of the responsibility to bring our society closer to the free and fully equal society we strive to be.
Our society would be far less equal if our judicial branch consisted entirely of originalists. I am grateful that the courts are able to fix a small handful of our legislative and executive branch’s many failures in ensuring equality for the less privileged in our country.