Last week’s landmark Supreme Court decision in favor of marriage equality across the U.S. is a momentous event, but there’s a lot more there than just the result. If you haven’t read the full opinion, you should–don’t rely solely on news summaries of it. One of the most interesting aspects of Justice Kennedy’s majority opinion was its unequivocal embrace of the concept of a “living Constitution.” That’s the idea that the U.S. Constitution is a document whose meaning and practice changes in each successive era, uncovering new rights and protections and different ways of doing things than were the case at its inception in 1787. The right to marriage equality is one of the rights that our modern Supreme Court has found in the document, specifically the 14th Amendment. The idea of a living Constitution is the opposite of another school of Constitutional theory, which might be termed “original intent” or simply originalism. This view is that legal questions must be interpreted solely on the basis of what the words of the document originally meant, or, if we can’t tell, whatever we think the drafters of the Constitution (the Framers) might have intended. There’s originalism in the Obergefell v. Hodges decision too: look at the now-famous dissents by Justices Roberts, Scalia and Thomas.
I believe strongly in a living Constitution. As popular as originalism is in some circles, especially since the 1980s, there are some very good historical arguments as to why it’s wrong. Yet even beyond that, if we apply an “intent of the Framers” standard to the question of Constitutional interpretation, there’s an additional argument that the Framers themselves believed in a living Constitution. If that’s true, then originalism and the idea of a living Constitution wind up in exactly the same place: a Constitution whose meaning and context changes with the times. From a common sense perspective, it seems terribly presumptuous to assume that the Framers believed they were writing a comprehensive manifesto that would remain rigid and immutable for all coming time. Just thinking logically about it, it seems clear to me that the Constitution was always intended to be a source code, not an operating system.
Originalism fails as a doctrine because it casts the Framers in a historically inaccurate light. In order for originalism to be a viable doctrine, either the men who wrote the Constitution were totally perfect and infinitely far-seeing, or they thought they were. Neither claim makes any real sense.
The Framers of the Constitution deliberated in this room in the Pennsylvania State House (now Independence Hall). It was also the room where the Declaration of Independence was adopted.
Between May and September 1787, 55 people, all white, all male, and all reasonably (or fabulously) wealthy by the standards of the times, gathered in Philadelphia to draft something. Originally their goal was to revise the Articles of Confederation, the proto-government that had stitched together the original thirteen states during and following the conclusion of the American Revolution. Even before the convention met, however, plans were afoot to throw away the Articles entirely and start from scratch with a brand-new constitution. James Madison was one of the leading intellects behind the convention, and he expected to (and did) take on a very prominent role in the debates on the new document. Trashing the Articles was largely his idea. But the states had authorized their delegates to attend a convention to revise those Articles, not to create a brand-new government. Thus, from the moment the Philadelphia convention opened, it had already exceeded the authority granted to it by the states. It’s hard to see Madison committing this little legal and procedural fudge, then turning around and insisting that the document that emerged from that convention had to be followed to the letter, without possibility of deviation or improvisation, until the end of time.
Slavery is another topic that belies the originalism argument. Most of the delegates at the Convention were eager to avoid it, judging that there was no resolution to the question of slavery that wouldn’t either doom their efforts to failure or result in the breakup of the United States. Southern states couldn’t be counted on to ratify a document that seriously attacked the institution of slavery. Northerners who didn’t like slavery thought the country couldn’t survive disunited, especially if the threat of Great Britain was still out there. Notorious dances around the issue like the odious 3/5ths Compromise, or the delay on banning slave trade until 1808, are evidence in the finished Constitution of this difficult problem. But originalism and its idea of perfect, infinitely far-seeing Framers would have us believe that this is the way they intended to leave it for all time, or at least until a Constitutional amendment could be passed outlawing slavery. The turbulent history leading up to the Civil War belies that simplistic and unrealistic explanation.
Clarence Thomas is one of the modern Supreme Court’s closest adherents to the doctrine of originalism. It was part of the reason he was chosen as a justice in 1991 by the first George Bush.
There are also parts of the Constitution that the Framers seriously screwed up. Article IV, for example, contains a guarantee that the states will have a “republican form of government.” Believe it or not, this part of the Constitution is pretty meaningless; courts have never been able to figure out exactly what this part means, what rights it guarantees or what (if anything) it prohibits. The original Presidential election procedure, where the runner-up of an election automatically becomes Vice-President, was so unworkable that in less than 20 years it had to be clarified with the 12th Amendment. In Article II, the grounds for impeachment of the President are extremely vague. What does “high crimes and misdemeanors” mean? As our experience with Andrew Johnson in 1868 and Bill Clinton in 1998 attest, figuring out precisely how bad a badly-behaving President has to be to get kicked out is no small task. Originalism would have you believe that these are not mistakes at all, but in fact there’s some hidden meaning that would become perfectly clear if we could just get inside the Framers’ heads.
The best argument is a common sense one. In order to credit originalism, one must believe that the Framers were, or thought they were, more brilliantly far-sighted in their day than we are in ours–in other words, that they were supermen who could plan ahead for any conceivable contingency and knew how to build those plans into the Constitution, instead of letting the leaders of later ages impose their own judgments on what the Constitution means. But they weren’t supermen. They were human beings just as flawed as any others, and they knew it. George Washington had serious doubts about his own abilities as a statesman. Alexander Hamilton had frequent affairs. John Rutledge was famous for his attempts to use the powers of governmental office against a personal enemy. These men would have been the first to admit they weren’t perfect. Their collective wisdom has certainly served us well for over 200 years, but originalism takes admiration of their accomplishments to an untenable and absurd level. Do we, as lowly denizens of the 21st century, have the right to question their judgments? You bet we do. It is, after all, our Constitution now.