It’s… Alive! Why the Argument for a Living Constitution is No Monster

The discussion of original intent versus living constitutionalism is one that has been inevitably and persistently controversial in politics since the Constitution itself was written.  Two of the biggest proponents of these conflicting perspectives are William J. Brennan–for living constitutionalism– and Antonin Scalia– for originalism.  They both present arguments in support of their opinion of how the Constitution should be interpreted and against the opposing view in their writing.   In making my point, I will be using Brennan’s Georgetown symposium speech titled “The Constitution of the United States: Contemporary Ratification” and Scalia’s conference speech called “Originalism: The Lesser Evil” to demonstrate the differences in argument as well as the drawbacks of each.  Based on their arguments and the evidence presented from both sides, I believe that Brennan makes the better case for interpretation of the Constitution through the concept of living constitutionalism.  More broadly, this paper attempts to answer the question of how the Constitution should be interpreted and how that ability to interpret affects society today.

First, let us examine the founding values of originalism and living constitutionalism.  Originalism, in its simplest terms, advocates for the Constitution to be interpreted the way that it would have been when it was written.  This means that the writings from the Founders of the Constitution as well as the ratifying conventions among the states should be looked to when trying to determine the meaning of the Constitution.  This view inherently tries to prevent much “wiggle room” in the interpretation, as it is an attempt to keep the meaning the same throughout the years.  On the other hand, living constitutionalism contends that the Constitution, while a very significant guiding document, should not be taken literally word for word with no possibility of growth.  In action, this perspective suggests that the Constitution be interpreted through the lens of current-day society, thus allowing its words to have a more modern meaning.  Both positions have positives and negatives, supporters and opposers.  Yet I believe Antonin Scalia’s arguments have more potential shortcomings than advantages when compared to those of William Brennan.

According to Antonin Scalia, the Framers were very precise in how they shaped the Constitution when it was first written.  He argues that they intentionally allowed for aspects of the Constitution to be interpreted generously, writing: “if constitutional interpretation could be adjusted as changing circumstances required, a broad initial interpretation would have been unnecessary” (Scalia 853).  To this point, he is saying that there is no need for continued new interpretations of the Constitution because the Framers allotted for some capacity of change within the original writing, and that the idea of the living constitution allows more change than is really necessary to accomplish the goals of the judiciary.  Moreover, he believes that the justices are merely the “referees”, as it were; with their only job to be deciding whether something is unconstitutional or not.  Under his philosophy, the judicial branch cannot be activists or be the moral compass of the country because, he says, “elections take care of that” (Scalia 862).  However, aside from a few points made about the general ideas of originalism, Scalia spends the majority of his piece pointing out issues with both living constitutionalism as well as his own interpretive perspective, originalism.

Trying to interpret an over-200-year-old document will never be easy.  Scalia recognizes that and says that in order to help interpret it with original intent, one should look to related writings from around the same time that the Constitution was written.  This, however, can lead to more issues, as there is an overabundance of writings from both the Framers and the ratifying conventions in the states, some of which is highly conflicting.  This idea of confliction is seen again in Scalia’s description of his own model of original intent.  He labels both viewpoints– living constitutionalism and originalism– as “evil” (Scalia 862), saying that he cannot fully commit to the ideals of originalism in certain circumstances.  This, I believe, is where his argument completely falls apart.  He points to an anecdote about public floggings, saying that although these were not constitutionally illegal at the time of the Constitution’s inception, he could not defend a flogging case if it were to come to the Supreme Court.  Additionally, in the Constitution itself, there are instances of obvious slavery sympathy in Article 1 Sections 2 and 9, Article 4 Section 2, and Article 5.  Scalia acknowledges this, going so far as to call himself a “faint-hearted originalist” (Scalia 862).  This concession proves that the Constitution must be, at least to some degree, able to adjust according to the times.

For William Brennan, this need for reform is natural, as “the phrasing is broad and the limitations of its provisions are not clearly marked” (Brennan 1) in the Constitution.  Expounding on examples like the Civil War amendments and the Bill of Rights, two major moments of change to the constitution, Brennan shows how society’s tendency to evolve forces constant reevaluation of the Constitution in order to apply correctly to society.  He also argues that it is impossible for a judge to be completely unbiased, thus making originalism in its true form impossible to achieve.  He points to himself as being guilty of bias in his specific interpretation of the death penalty as cruel and unusual punishment, but also tries to justify this viewpoint.  Writing how stare decisis must not always take precedent over the judgement of the court, he says that neglecting to see the Constitution as living would allow it to “fall captive, again, to the anachronistic views of long-gone generations” (Brennan 15).  While Scalia views the justices’ positions as ones of “referees”, Brennan sees them more as “moral compasses”, at the helm of the forward progression of American society.  In Brennan’s view, original intent was unclear, and any determinations made as a result of what the Framers “would have wanted” is also an interpretation, not fact.

Throughout his writing, although Brennan recognizes the issues that others may see in the idea of living constitutionalism, he shows that it is both democratic and historically necessary for the Constitution to be open to interpretation and change.  Democratic, in that it prevents a “blind faith” (Brennan 6) in a system set up and left unchanged for hundreds of years; historically necessary in its judicial activism in Civil Rights amendments and the Bill of Rights.  Unlike Scalia, who pointed out flaws with the basic fundamentals of originalism when admitting that it was nearly impossible for anyone in this day and age to be a full-fledged originalist, Brennan states that living constitutionalism’s biggest obstacle is that it implicitly leads to consistent debate over the meaning.  However, this does not undermine the legitimacy of his interpretive viewpoint, as Scalia’s idea of “faint-hearted originalism” does.  For Brennan, living constitutionalism allows one to strive towards better future ideals with the intent of always being able to improve, while Scalia seems to be trying to fit current-day society into the rules of a society that existed over 200 years ago.  And even then, Scalia cannot fully commit to that which he himself preaches as a result of his argument’s weaknesses.

When it comes down to it, there is an intrinsic issue with the idea of claiming one person’s interpretation of the way society should be governed and the government should work is better than another’s.   Yet at the same time it is necessary that someone interpret the Constitution, which begs the question: how should it be interpreted?  I believe that based on both Brennan’s and Scalia’s arguments, living constitutionalism has fewer fundamental flaws and is even utilized at times by the strongest proponents of originalism.  Neither side will ever be without shortcomings, but the closest we can get as a society to this ideal is to permit the growth of our basic moral principles as represented by the Constitution.  Society will continue to evolve regardless of “originalist” judicial rulings, just as it did after the rulings of Dred Scott and Plessy v. Ferguson.  By breaking away from strict originalism, movements like marriage equality, which is supported currently by the majority of the country, can take place.  Therefore, it is important that interpretation of the Constitution follows these changes, just as Brennan argued and Scalia failed to effectively argue against.


Works Cited

Brennan, William J.  “The Constitution of the United States: Contemporary Ratification.”  Text and Teaching Symposium, 12 October 1985, Georgetown University, Washington D.C.   Keynote Speech.

Scalia, Antonin.  “Originalism: The Lesser Evil.”  William Howard Taft Constitutional Law Lecture, University of Cincinnati, 12 September 1988, Cincinnati, OH.  Keynote Speech.

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