Should The Constitution Be Interpreted As It Was Originally Intended or Should It Change With The Times?

By Christina "Chris" Witt

This paper discusses the philosophy of originalism and the opposing philosophy of constitutional interpretation. It states which philosophy I subscribe to and I defend my position.

Before the American Revolution, colonists were doing their best to survive. Once they figured out how to work together and individually, the colonies were becoming prosperous. Each colony found its success through different means, however, the results were the same: a newly created culture that depended on the hard work of the individual and equal rights to all in the community. This was a foreign concept. When the king of England began imposing his rule, this new ideology was being infringed upon. A Declaration of Independence was written to tell the king that they refused to be a part of his government anymore. The Articles of Confederation were written in an attempt to form a union. The Union was still divided, however, because each state had almost complete control over the entire Union, which created difficult problems and division. This meant our Founders had to create a document that would hold the Union together, still allow the freedom of the state and individual, and establish a national identity.

John Locke said, "Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society with another." It would appear that Locke believed there was strength and order with a civil society. Locke also believed that by birth, we are free and equal because of the law of nature, but unrestrained could result in anarchy because we could allow our passions to get in the way. The answer, according to Locke, was a civil government, "Self-love will make men partial to themselves and their friends...ill nature, passion, and revenge will carry them too far in punishing others....nothing but confusion and disorder will follow...God hath certainly appointed government to restrain the partiality and violence of men...civil government is the proper remedy for the inconveniences of the state of nature." The Founders believed a government was necessary, but they needed to create a government that locked-in and secured the right to Life, Liberty, and the Pursuit of Happiness that would last for many generations and prevent the "self-love" of men from creating chaos, division, and anarchy.

The Founders were fully aware of the laws of nature and God and it could be presumed that the writing of the Constitution was, in fact, to create a "civil society with another" and "restrain the partiality and violence of men." Madison, in the Federalist No. 10 shows concern of the government before the Constitution when he says, "Complaints are everywhere...our governments are too unstable." There was cause for concern because different views and opinions were being formed which was beginning to cause conflict and oppression by the majority violating the rights of the minority. Mathew Spalding, in his paper "The Formation of the Constitution" explains, "Each state governed itself through elected representatives, and the state representatives in turn elected a weak national government." The weak national government he was talking about was the amount of power the states had over the nation. Ratification of any of the amendments took all the states, which meant one state could veto the other 12, for example. The Articles of Confederation were showing to be a poor band-aid that came off the second it got wet. They were not uniting the country and each state was becoming its own little kingdom. In essence, the country was reverting to the previous governments they came from and I believe they did not know they were doing it. Self-interests and ambition were beginning to prevail, putting liberty at risk. The preamble of the Constitution says, "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." The preamble clearly states the intention of the Constitution and creates a new society that unites a diverse group of people and states and yet maintains self-evident individual liberties ordained by "the Laws of Nature and of Nature's God."

It would seem obvious what the Framers meant when they wrote the Constitution. Yet, there is a current debate as to how the Constitution should be interpreted. Judge Robert H. Bork says there are two philosophies regarding the interpretation of the Constitution: intentionalism or interpretivism [originalism] and non-intentionalism or non-interpretivism [Constitution as a living document]. The two opinions are drastically opposite. According to Keith E. Whittington, these debates have been going on since the ratification of the Constitution, "The argument that the original meaning should guide constitutional interpretation is nearly as old as the Constitution itself...The claim that the Constitution should be understood different...a "living Constitution"...is now itself quite old. According to Attorney General Edwin Meese III, "The current debate is a sign of a healthy nation." It would appear, the debate regarding the framing of the Constitution has spanned even over 200 years since its ratification.

The Federalist Society states, "[The Constitution] must be interpreted in light of the original meaning and common understanding of those who ratified it" which is a good definition of originalism. Justice William J. Brennan's states, "We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans...Interpretation must account for the transformative purpose of the text. Our Constitution was not intended to preserve a preexisting society but to make a new one," which implies the philosophy that the Constitution is a living document.

These two opposing views seem to hold merit, but what is interesting is that the "living document" philosophy feels that originalism is too strict and rigid. They seem to imply that there is no flexibility in originalism for current day problems. Brennan explains that, "Those who would restrict the claims of the right to the values of 1789 specifically articulated n the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance." The "living document" philosophy seems to encompass around the right of human dignity and the need to be flexible as new human dignities are discovered. Those who support the "living" Constitution interpretation argues that the Framers of the Constitution could not know the advancements made technologically in today's United States culture. Another argument that is brought up, "Why should we be ruled by men long dead?" This is a rather absurd argument because the present and future is built on the past. One only has to look at the mathematical formulas, medical advancements, and scientific discovery to realize that the future is built upon the past. This will never change. If the dead should not govern the living, then Darwin's scientific discovery should be just as obsolete, since he is dead as well as Thomas Edison's discovery. After all, if Thomas Edison is dead, should we just turn off the lights? Not building on the past would require discarding the dead's discoveries. Otherwise, we are doomed to repeat their mistakes, because we have not learned from them. The Constitution is not a "living" document because it needs to change with the times, it is living because it still applies to human nature today without any changes.

Originalism feels that by not adhering to the original document, freedoms and rights can be stretched until changed or are no longer existent. Justice Bork stated, "Only by limiting themselves to the historic intentions underlying each clause of the Constitution can judges avoid becoming legislators, avoid enforcing their own moral predilections." We all have our own moral codes. While in some cases our morals may agree, what happens when morals disagree? Should judges be allowed to use the Constitution to promote their own ideology? Originalism believes that to keep these personal issues at bay the original intent of the Constitution solely needs to be used. Moral issues should not be left to the judicial branch to ensure that the rights of states and individuals be preserved. Meese argues that, "The Framers were not trying to anticipate every answer...They were trying to create a tripartite national government...that would have the flexibility to adapt to face new exigencies...Their great interest was in distribution of power and responsibility in order to secure the great goal of liberty for all." All within the confines of the intention of the original document, of course.

The Bible and the Constitution are similar in some respects and very different in others. Both documents can be considered timeless documents, but, they need to be treated quite differently. The Bible cannot be changed because most believers believe that the Bible is the "word of God," which makes it perfect. Revelation 22:19 warns, "And if anyone removes any of the words of this prophetic book, God will remove that person's share in the tree of life and in the holy city that are described in this book." So, the bible can never be "revised" or changed. The Constitution, on the other hand, is a legal document and can be changed because even our Founders realized they may have missed something. Article V of the Constitution shows that even they admitted their fallibility and allows future generations to add to the Constitution as events presented themselves. Article V makes passing an Amendment very difficult because they were aware that not every Amendment would be just. The Amendment had to comply with the intent of the original Constitution so that an Amendment was not passed that would violate the unalienable rights of its citizens. When women and minorities were given the right to vote they complied with the spirit that "all men [mankind] are created equal." In this instance, the Constitution did need to be amended. Meese points out though, "It is amazing how so much of what passes for social and political progress is really the undoing of old judicial mistakes." After all, it was Thomas Jefferson that mentioned in the Declaration of Independence "that the king, `waged cruel war against human nature' by introducing slavery and allowing the slave trade into the American colonies." Congress removed this accusation either because they were slave owners themselves or did not want to offend civilian slave owners since it was viewed that slaves were not people, they were property purchased and even had paperwork to prove ownership of the individual. The revelation after the Civil War was not a new one, it was neglected purposely, possibly for political reasons. So, as Meese states, these ideas are not progress, just undoing what was originally done. In the end, the intent of the Constitution is not altered, but made better ensuring rights for all.

In 1917, the 18th Amendment was passed only to be repealed in 1933 by the 21st Amendment. It gave me cause for pause to wonder if the Founders purposely left out an ability for an Amendment to be repealed because as the Constitution currently stands, the 18th Amendment is still in the Constitution but no longer effective because of the 21st Amendment. Maybe the Founders did not want to put in a process to repeal because what if somebody wanted to repeal the Bill of Rights. The Founders were realistic in realizing that the Constitution needed to be added to, but they did not intend for it to be added to or taken away from in a way that would expand government power.

As a Christian, I fully understand the concept of a "living" document. After all, Christians believe that the Bible is the "living Word of God." The authors of the Bible did not intend for their words to cause harm. In fact, it is a recorded history document that shows the good times and the bad in the past in the hopes to educate the future generations what to maintain and what not to repeat. Yet, this book has started wars in its name causing pain and misery because it was manipulated to the whims of the times. One only has to look at the Crusades to see the damage caused because power-hungry politicians and religious leaders who misused the Bible to forward their own agendas. It is interesting that the Bible reflects human nature, much like the Constitution. In fact, Ecclesiastes 1:9 states, "History merely repeats itself. It has all been done before. Nothing under the sun is truly new." The Bible is as relevant today as it was when it was written and just because it says something a person does not agree with, does not make it irrelevant. It is living because it does address human nature and there is still much to learn from it, despite technological or social advancements.

The Constitution could arguably be a "living" document for much the same reason. The Framers understood human nature. It was written to protect future generations regardless of changes to technology and society. Human nature has not evolved or gotten any better. The Constitution was meant to frame a form of government that could govern with human nature. It was not meant to change with the whims of the moment.

However, is it ethical for the Constitution to become "living" depending on the situation? Article I, Sect. 8, Clause 18 says, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This clause has been coined the "elastic clause" or "the necessary and proper clause." In 1801, a treaty was signed between Spain and France that gave Louisiana to France. This gave France control of the New Orleans port on the Mississippi River and the port was closed to Americans. President Thomas Jefferson felt that the port needed to be purchased to prevent war. Napoleon was a flake so the deal to purchase the New Orleans port needed to be made quickly and Jefferson felt he did not have the time to wait for a new law to pass. The envoys Jefferson sent made the deal with Napoleon without consulting anyone. The irony is, though, that the United States did not just buy the New Orleans port, it bought the whole Louisiana Territory for a sum of $15 million in 1803! While technically, this purchase was unconstitutional, Jefferson believed he did it for the good of his country by maintaining a major port and preventing war. However, this opened the door to making the "elastic clause" more elastic making the Constitution more "living."

In Stephen Moore's essay, "Our Unconstitutional Congress," Moore explains the importance of leaving the Constitution as it was when it was first adopted. He argues that the Constitution is repeatedly being ignored or misinterpreted. His example he uses is the "general welfare" clause in Article 1. Section 8 of the Constitution. Jefferson made this clause quite clear when he stated, "Congress has not unlimited powers to provide for the general welfare but only those specifically enumerated." Today, "general welfare" means the exact opposite of what the Constitution intended and Jefferson clarified. In the name of crisis such as the Great Depression, WW 1 and WW 2, even the terrorist attacks on the Twin Towers and Pentagon on 9-11-01, Congress has used these to expand the definition to extend its authority and power. The definition now allows Congress to spend money wherever it wants, "as long as legislators deem it to be in the general welfare of certain identifiable groups of citizens like minorities, the needy, or the disabled." Moore reminds everyone that, "The general welfare clause was supposed to limit government's taxing and spending powers to purposes that are in the national interest." It seems the same thing that has happened to the Bible, which is thousands of years old, is happening to a document that is 200 years old. Since it is inconvenient to certain people's ambitions, changes are being made in the name of "it's for your (the US citizens) own good."

While Stephen Moore makes some really good points, what we need to consider is that a strict and rigid adherence to the Constitution is not entirely viable. One has to wonder when looking at the Louisiana Purchase in 1803. Jefferson acted of his own accord to purchase a land that technically, the nation could not afford. In fact, it took out a $15 million loan with England at 6% interest. However, France had closed of the New Orleans port, which was important to the United States. Jefferson strongly believed in the enumerated powers of the Constitution and felt that if it was not mentioned in the Constitution then it should be left for the states. Yet, a new situation presented itself that needed an immediate response and he set aside his beliefs to meet an urgent need. We can only speculate what would have happened had Jefferson not pursued purchasing the New Orleans port, which in the end, ended up being the Louisiana Purchase. In this case, the government overreached its power and authority, but the result ended up being a good thing and the people approved.

The United States citizens have, in essence, given this unprecedented authority to a government that is supposed to be very limited. Looking back in history, when the nation was in a crisis, be it war, famine, natural disaster, or economic collapse, the citizens have willingly given the government authority it did not deserve and as Moore stated, "normal constitutional restraints are suspended." What is amazing is that the people of the United States have not learned that once that power is given, it is seldom given back. But occasionally, the unprecedented authority has worked for the benefit of the country. Do the few successful incidents justify the current frequent ones though? Keith E. Whittington said, "A written constitution was meant to fix the principles of government." Perhaps it is acceptable as long as it maintains the original intentions of the Constitution. Originalism appears to be rigid and strict with no room for flexibility, yet a "living" Constitution is too flexible and allows government representative's personal political views to get in the way. With the two showing that they could work, it is best to choose one that best represents what our Founders were trying to accomplish so long ago to ensure that everyone remains equal and free.

I would have to agree that originalism is the correct interpretation of the Constitution. Language changes over time and even over distance. Much like being able to properly understand the Bible by understanding the Hebrew culture and language, we need to be able to properly understand our Framer's culture and language. By doing this, we can still take an old document and make it apply to the current days without "upgrading" it. Our current society is fleeting. What is "in" one day, is "out" the next. We cannot maintain our focus on any one thing, are not satisfied with what we have or the current condition, and forget the things that bring us together until tragedy strikes. Because we are complacent, we cannot stand and turn into Jell-O the moment something threatens to change our current complacency. When that happens, we do give the federal government authority it should not have and forgo our own rights causing our liberties to be stretched until they are no longer existent. How easily we forget what Benjamin Franklin had to say, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Those who fought in the Revolutionary War were not safe, but they were free. We are no longer free and to think we are safe is a delusion. The Constitution is not obsolete because men who are long dead wrote it. The original Constitution is current because our human nature has not changed. Until our basic human nature has evolved, the original Constitution this country adopted in the late 1700's is valid and up to date today.