The Newnan Times-Herald

Opinion

Originalism versus ‘Living Document’


  • By The Newnan Times-Herald
  • |
  • Nov. 02, 2017 - 10:59 PM

Originalism versus ‘Living Document’

The Newnan Times-Herald

In 1775, the Revolutionary War between the Colonies and Britain began.

In 1788, the Constitution became the undisputed law of the land after New Hampshire became the ninth and last state required to approve it. In 1791, the first 10 amendments, known as the Bill of Rights, were added to the Constitution in order to define and protect the rights of the American people.

The Constitution was not and is not a blueprint, guideline or set of suggestions. This one

document provides the ultimate law in the United States and, more importantly, mandates limits on the power of the federal government.

Since shortly after its ratification, judges have had to interpret this over 200-year-old document in countless cases. Laws are “struck down” if a particular judge believes the law is unconstitutional.

The judicial belief in how to interpret the Constitution has been the center of controversy since the beginning. There are two primary views of how judges and the public interpret the Constitution. While the rest of the column is not riveting, it is vital information to

understand as a citizen.

ORIGINALISM – As pointed out below by the Heritage Foundation, those who make, interpret and enforce the law ought to be guided by the meaning of the Constitution as it was originally written. The vast majority of Originalists begin with the text of the Constitution, the words of a particular sentence or paragraph.

Textualism considers the words of the document to be authoritative while keeping in mind the traditional American principles behind the text. (Think of the text of the First Amendment and the reasons why our freedom-loving Founders wrote it.)

Admittedly, understanding the Founders’ original intent is not always a simple task. It can take tedious work and sometimes produces vigorous disagreement. However, Originalism is logically, as opposed to emotionally, the best way to interpret the Constitution for five

fundamental reasons.

1. It binds and limits any particular generation from ruling according to the passion of the times.

2. It complies with the constitutional purpose of limiting government. It understands the several parts of the massive federal government have no legitimate existence outside of the Constitution.

3. It supports the separation of power between the three branches of government by limiting the power of the judiciary. It prevents the Supreme Court, and other courts, from “creating law,” which is a reserved power for the legislative branch.

4. It reflects the Founders’ understanding of the self-motivated impulses of human nature. The Constitution inherently works to frustrate those impulses while leaving open channels for changing/amending the document as needed.

5. Most importantly, Originalism is not result-oriented. If a law is unconstitutional, then so be it. The Originalist is like Chief Justice Roberts’ description of the role of a judge.

Judges should be like umpires calling “balls and strikes.” “Umpires don’t make the rules, they apply them.”

The Originalist believes that it does not matter which party wins or loses.

LIVING DOCUMENT - Originalism has seen a steep decline over the last century with the rise of the theory of the Constitution as a “living document” or “living, breathing document” with no fixed meaning, subject to changing interpretations according to the spirit of the times.

This popular theory turns the Constitution into an unwritten charter to be developed by

contemporary values. The problem here is that for some people, it can be tempting to “create rights,” “take away rights,” focus on the desired end result and inject personal views into a case.

The primary argument supporting a “living document” theory is that we live in changing times.

How could the Framers have envisioned computers in the late 1770s? Well, humans are

creative and forward thinking. Jules Verne envisioned technology in the 1800s that still does not exist today. While the requirements for obtaining a search warrant for a smartphone may not have specifically been contemplated by the Founders, technological advances certainly were.

Additionally, the Constitution already provides for a system to live, breath and change. The document has been amended 26 times based on mistakes and the needs and desires of our ever-changing American society. The power to amend the Constitution, though necessarily difficult, is the primary reason the document has been able to survive the turbulent changes throughout the past 200 years.

The support and/or application of the “living document” theory creates inconsistent law,

regionally based law, is arbitrary, and further politicizes the judiciary.

While Originalism does not remove controversy or disagreement, it does establish the Rule of Law. Without it, our country will eventually become entirely governed by the Rule of Men.

Jason Swindle is a criminal-defense attorney and college professor in Carrollton.