In recent years it has been possible to identify two broad approaches to interpreting the Constitution of the United States. These are usually classified as "original intent" and "Living Constitution." The former is generally associated with those of a conservative persuasion and the latter with those who identify themselves as liberals or progressives.
An "original intent" approach, as the name suggests, looks to what the Founding Fathers actually meant when they wrote the Constitution. Whenever a particularly contentious or controversial constitutional issue is raised, one needs to examine what the framers of the Constitution said at the time of the Philadelphia Constitutional Convention and what they wrote in the Federalist Papers.
This appears to leave Supreme Court justices with very little interpretive leeway in deciding cases. Defenders of the originalist approach are strongly critical of what they perceive to be judicial activism, judges going beyond the Founding Fathers' original intent and willfully distorting the meaning of the Constitution for political ends. This approach is dangerous, advocates of original intent maintain, because it expands the involvement of government way beyond the narrow boundaries set out in the Constitution, potentially undermining the system of checks and balances that forms the basis of the republican polity.
The "Living Constitution" approach, on the other hand, sees original intent as being too rigid, too unyielding, like looking at the Constitution almost as a pristine antique in a glass case. The Constitution, they argue, is not set in stone; it is a living, breathing document which needs to adapt to the widespread changes that have taken place in American society since it was written. An originalist approach is of no practical use in dealing with some of the pressing problems that have blighted the country for centuries.
For instance, how can the original intent approach deal with race or women's rights? The Constitution, in its original incarnation, looked upon women and people of color as less than full citizens. If we interpreted the Constitution strictly, as the originalists want us to do, then little or no progress would have been made in relation to civil rights or gender equality.
However, is this a fair representation of the original intent school's position? I would like to suggest that it is not. It is something of a straw man argument to say that the originalists' theory of constitutional interpretation is rigid and unable to deal with social change. The fact is that this is not what the Constitution is supposed to do in the first place. The Constitution aims to make sure that all actions of those in authority adhere to a commonly agreed set of standards. The role of the judiciary should be precisely that: judicial, not political. If politicians wish to establish laws protecting civil rights or other progressive measures—or even contentious issues such as abortion—then they are entirely free to do so. The Constitution is totally flexible in this regard.
Indeed, there are many examples in American history when Congress passed progressive legislation only to have it struck down by the Supreme Court. For example, Congress voted against segregation in 1875, only to have it thrown out seven years later by the Court. Judicial activism once had reactionary consequences. Now, it is associated with progressive causes. However, the end result is the same: the democratic decisions of the people are overridden by judicial fiat.
If changes need to be made (and no originalist would ever deny this) then they should be made by the people themselves through democratic decisions. Indeed, the record of democracy in protecting the rights of minorities is considerably more impressive than that of the courts. Unfortunately, the advocates of judicial activism want to take such decisions out of the hands of the people and their elected representatives and give them to an unelected, unaccountable judiciary.
Ironically, it is the "living, breathing" approach that effectively renders the Constitution a dead letter. If the Constitution's provisions can be willfully ignored by activist judges, then it can no longer guarantee anyone's rights, including those of minorities.
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