Is the Constitution Dead or Alive?
In defense of a living constitution
TL;DR: The Constitution has two types of terms: foundational principles and formal rules. The foundational principles are universal maxims subject to reasonable interpretations, which may produce different legal rules depending on facts and circumstances. The formal rules are specific and define the exact extent of the principles. The Constitution’s formal rules require an amendment to change, whereas its moral principles are to be interpreted based on reason. Without this method of interpretation, the Constitution would lack justifiable authority, becoming only a set of commands.
In the war of constitutional interpretation, the two main combatants have been the originalists and the living constitutionalists.
Originalists argue that the Constitution should be read based on the drafters' original intent. The Constitution's authors wrote what they meant and meant what they wrote. And the Constitution's text was written to reflect the original public meaning it did at the time of its composition.
Originalists would argue that the meaning of the first ten amendments is fixed based on the views and intent of the 1791 adoptees of the Bill of Rights. And similarly, the 13th, 14th, and 15th amendments would be interpreted in light of what the words meant in the 1860s.
Meanwhile, living originalists argue that the Constitution should be interpreted in light of the values and mores in which it exists. If the Constitution has political legitimacy, it must be based on the values of the people it rules over.
While there are many camps within originalism1 and living constitutionalism,2 generally, Originalists argue that the Constitution is a dead document, whereas living constitutionalists argue that it’s alive and changing.
Originalism is intuitively powerful, as presented by Gary Lawson’s “On Reading Recipes -- And Constitutions.” To summarize, imagine that you found a chicken recipe from the 1700s. The recipe calls for certain measurements of chicken, flour, pepper, lard, and salt, as well as instructions for combining these ingredients.
You might disagree with this recipe. You might think there’s a way to make chicken more easily, tastier, or cost-effectively. You might believe that if the recipe author knew what you knew, they would have written a different recipe.
Or you might argue that terms in the recipe like “teaspoon,” “cup,” or “fry until golden brown” have been changed in some way since the recipe was created. And you think that the modern meaning of these terms should be followed rather than the meaning at the time the recipe was written.
However, then you would not be following the actual recipe. The recipe means the text’s original public meaning plus the author’s original intent. Therefore, any interpretation that leads to a different meaning would be wrong.
Under this interpretation, the Constitution is like a command. If you are given a specific set of commands, those commands are not subject to your own or others’ interpretation. What the commands mean is what the commander meant them to mean. If your interpretation is different from what the commander meant, then your interpretation is wrong.
This all makes sense. If someone decides to read your private text messages and import their own interpretation on them, you’d rightfully be offended. You’ll point out the important context and intent of the messages. And if their interpretation fails to consider these factors while imposing their own values, then their interpretation is wrong.
However, there are two main issues with originalism. First, it fails to distinguish foundational principles from formal rules. And second, it fails to address the document’s legal legitimacy.
First, it should be noted that the Constitution’s terms are not the same. The Constitution contains both foundational moral principles and formal rules.
To review from a previous post, foundational principles are universal maxims that cannot be reasonably rejected. They are moral principles that would be included in the social contract.
Formal rules, meanwhile, are expressions of foundational principles in legal form. For example, a foundational principle would be a general right to property. Yet formal rules would include more detailed laws on the extent of ownership, like determining air rights, ground rights, easements, zoning, and other sticks in the property rights bundle.
Reasonable people would agree on the right to property but may disagree about these formal rules. And these rules may differ based on relevant facts and circumstances.
For instance, riparian (water) rights differ in arid Texas vs. rainy New England. Texas’s “first-come, first-served” model was meant to encourage water production and preservation, whereas New England’s simply provides property owners equal water rights along a river bank.3
Both regions have the same foundation principle of water rights but have different formal rules for how that right should be exercised—appropriate given their different circumstances.
The Constitution contains similar formal rules and foundational principles. Take the Seventh Amendment, which states that “[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” This means that any federal case with an amount of controversy over $20 may be tried by a jury.
The $20 threshold is not $20 adjusted for inflation or subject to change based on modern values. $20 is $20. If a case is a dispute over $20 exactly, the right to a jury doesn’t apply. This clause is a formal rule that can only be changed through an amendment.
However, other amendments are foundational principles, such as the 5th Amendment’s requirement to provide “due process” in takings, the 8th Amendment’s prohibition on “cruel and unusual punishment,” and the 14th Amendment’s guarantee of “equal protection.”
What process is due? What punishment is cruel and unusual? And what exactly is equal protection? No society can ever be sure—not even the drafters were. While the drafters may have had their own understanding of these concepts at the time, they are not formal rules if they are not in the Constitution.
The drafters of the 14th Amendment, when creating the guarantee to “equal protection” under the laws, never meant for this equal protection clause to require racial integration in schools. On the contrary, the drafters clearly stated that the clause was perfectly compatible with segregation.
Yet the racial caste system is incompatible with equal protection of the law, as recognized in Brown v. Board of Education. Admittedly, if the 14th Amendment included a right of states to impose segregation, that clause could only be removed through the amendment process (and it should be so removed). However, because no such formal rule is included, the formal laws that derive from the foundational principle of equal protection must be discovered based on reason—not accepted based on authority.
And what does equal protection mean exactly? Does it mean the original intent of the drafters, in which case Brown v. Board of Education, is unconstitutional? Or is it the literal meaning of equal protection, where any disparate treatment of groups may be deemed unconstitutional? Age-based policies like state driver’s license rules or gender-based actions like creating separate bathrooms may be illegal under this literalist interpretation.
Or take the First Amendment. Does the prohibition on government from “abridging the freedom of speech” also forbid fraud and defamation laws? It would under a literalist reading and could under an originalist reading.
Rather, I’d argue that interpretation must be reason-based. Formal rules must be drawn out of moral principles through a careful examination of facts and circumstances. Courts have followed this route when interpreting the Equal Protection Clause and the First Amendment.
Whether equal protection is provided is based on different standards, depending on whether the law targets categories like race, gender, immigration status, or age. The highest standard is imposed on laws that target race, whereas a far more lenient one is imposed on laws targeting age. A similar shifting standard is imposed on laws regulating speech as well.
These varying review standards aren’t included in the text, nor were they part of the drafters' intentions when creating the 1st and 14th Amendments. Rather, they’re a reasonable interpretation of the law as developed and decided on over decades of case law and judicial reasoning. While everyone was able to agree on the foundational principle of free speech and equal protection, reason is still required to parse out this principle into concrete legal rules.
If you argue that an amendment is required when having a different interpretation of a principle than the drafters had, it should be noted that there would be nothing to amend.
People may interpret the principle differently to produce different legal rules, but everyone still agrees on the principle. The principle is fixed, and it’s only a formal rule being created.
And if the original public meaning were meant to be a formal rule, it would have actually been a formal rule. If the founders wanted “cruel and unusual punishment” to mean what it meant in 1791, they would have defined it as such.
Rather, they set out the principle against cruel and unusual punishment. And different formal rules can reasonably arise from that singular principle. Does cruel and unusual mean the death penalty? Or it’s only unconstitutional for non-violent crimes? Or only unconstitutional when applied to minors? Reasonable people can disagree; it takes reason to figure out what it truly means.
These are hard questions, and facts and circumstances often determine how these rules apply.
I should add a caveat to my argument above. Just because our interpretation is “modern” and different doesn’t make it better. There are areas of constitutional law where I’d argue we’ve been moving in the wrong direction, away from the just path the founders set us on. This includes the expansion of the administrative state, selective judicial activism, and (importantly for me) the abandonment of the founders’ recognition of natural rights.
My second issue with originalism is that it lacks legitimacy. As I’ve argued, reason is the ultimate authority over freedom. And a zealous commitment to text and intentions is dictatorial. Legal positivists may argue that the Constitution is simply a fundamental command, but a natural law theorist would argue that authority derives from something prior to the Constitution—reason.
And it’s reason that must be applied to the Constitution’s foundational principles to create just legal rules. Literary interpretation of commands may be an interesting academic exercise, but it’s not law. So if the Constitution is to have any authority, its interpretation must similarly be based on justifiable principles that create justifiable legal rules.
Granted, this process is difficult, long-running, and open to abuse. But this process is necessary if we are to discover the true rules that should govern us.
Originalism is like the drunk man searching under the lamppost for his keys because that’s where the light is. It might be easy to uncover what the drafters meant by “equal protection” or “due process.” And it’s much harder to find out what these principles really mean. But legal authority rests with the latter understanding, not the former.
Both Original Intent and Original Public Meaning versions of Originalism will be addressed here and improperly conflated.
See Balkin (2011) and Strauss (2010).
See Friedman (2005) pg. 248.