View of Constitution

[BenBurch]

How do you view the Constitution?  

A: A living document, that evolves over time

B: Or are you an originalist?

Discuss your views below, in the comment section.  Let's start a conversation! 

[BenBurch]

Kinda curious, so I thought I'd post this.

[MarkD]

I'm an originalist.

Here was a debate about originalism vs. evolving Constitution in 1966 that occurred between two Supreme Court Justices - one writing the majority opinion and one writing a dissent. The case was Harper v. Virginia Board of Elections. First I'll quote from the majority opinion:

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Then one of the dissenting opinions:

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The "original meaning" of the Constitution is what should control the judges' decisions about what it means, not the changing "notions" of the Justices' themselves.

[Sestak]

I consider it to evolve somewhat, especially regarding completely new concepts and technologies. For example, I strongly believe that the Fourth Amendment applies to digital documents and records even though a perfectly strict "dictionary-literal" reading of "persons, papers, houses, and effects" would not include them - I think "papers" includes them even if the Founders were not explicitly thinking of information stored on spinning magnetic disks when they wrote it.

The constitution "evolving" against its own intent, like some claim with the second amendment, is more dubious to me.

[BenBurch]

I consider it to evolve somewhat, especially regarding completely new concepts and technologies. For example, I strongly believe that the Fourth Amendment applies to digital documents and records even though a perfectly strict "dictionary-literal" reading of "persons, papers, houses, and effects" would not include them - I think "papers" includes them even if the Founders were not explicitly thinking of information stored on spinning magnetic disks when they wrote it.

The constitution "evolving" against its own intent, like some claim with the second amendment, is more dubious to me.

This is an excellent post.  Your second paragraph is more what I had in mind with an evolving Constitution than the first.  Nice to know we agree brother!

[TPIG]

I'm an originalist. A Constitution/bill of rights that changes with the political whims of the moment is dead. They were specifically designed to not change with passions of the moment and to have their principles remain consistent through time; this is the best way to ensure that the rights of political minorities/individuals remain protected.

[Dr. MB]

I consider it to evolve somewhat, especially regarding completely new concepts and technologies. For example, I strongly believe that the Fourth Amendment applies to digital documents and records even though a perfectly strict "dictionary-literal" reading of "persons, papers, houses, and effects" would not include them - I think "papers" includes them even if the Founders were not explicitly thinking of information stored on spinning magnetic disks when they wrote it.

The constitution "evolving" against its own intent, like some claim with the second amendment, is more dubious to me.

This.

[Southern Senator North Carolina Yankee]

I'm an originalist. A Constitution/bill of rights that changes with the political whims of the moment is dead. They were specifically designed to not change with passions of the moment and to have their principles remain consistent through time; this is the best way to ensure that the rights of political minorities/individuals remain protected.

I agree with this completely.

[Associate Justice PiT]

I'm an originalist. A Constitution/bill of rights that changes with the political whims of the moment is dead. They were specifically designed to not change with passions of the moment and to have their principles remain consistent through time; this is the best way to ensure that the rights of political minorities/individuals remain protected.

I agree with this completely.

     I also agree. People will sometimes strawman the originalist position by representing it as a worldview obsessed with old dead men. That misunderstands the point of the Constitution, though. It reflects a constant set of principles about what constitutes good government, and that is what the originalist position cares about. I do not adhere to the Constitutionalist position necessarily because it is the Constitution (though its role as the supreme law of the land must be recognized), but because it defines what is the ne plus ultra of the proper role of government.

     It does not matter what Jefferson would have thought about computers, but rather what the ideas on the role of government that form the foundation of the Constitution would have led one to conclude about computers. This is how we can know that "papers" includes digital content, even though such things obviously did not exist when the document was written.

[BenBurch]

I'm an originalist. A Constitution/bill of rights that changes with the political whims of the moment is dead. They were specifically designed to not change with passions of the moment and to have their principles remain consistent through time; this is the best way to ensure that the rights of political minorities/individuals remain protected.

I agree with this completely.

     I also agree. People will sometimes strawman the originalist position by representing it as a worldview obsessed with old dead men. That misunderstands the point of the Constitution, though. It reflects a constant set of principles about what constitutes good government, and that is what the originalist position cares about. I do not adhere to the Constitutionalist position necessarily because it is the Constitution (though its role as the supreme law of the land must be recognized), but because it defines what is the ne plus ultra of the proper role of government.

     It does not matter what Jefferson would have thought about computers, but rather what the ideas on the role of government that form the foundation of the Constitution would have led one to conclude about computers. This is how we can know that "papers" includes digital content, even though such things obviously did not exist when the document was written.

Yes, yes and yes!

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

It evolves somewhat, in the sense that we should not look at the constitution through the same lens the founders would have in the 1780s. This was a society in which people kept slaves, engaged in mass discrimination based on race and gender, and enjoyed very few of the technological advances we have seen today. If we were to make rulings based on what the founders would have done in the 1780s (or even based on what the writers of many of the amendments would have done - since many of those amendments were written in the ages of slavery and segregation), we would reach some pretty absurd and deplorable rulings. What we should instead do is look at what was the core right the founders or the amendment writer was trying to establish - take out all the racism, sexism, lack of technology, etc. and figure out what was the overarching thing they were trying to enshrine.

For instance, consider the 4th amendment. At the time it was written, it primarily protected the house that you lived in - but what is clearly at its core is a desire to protect personal property from undue searches. The founders wanted to avoid the tactics of the British, who tore through property with reckless abandon, and instead give people respect for what they own. In today's society, such things as computers and phones and cars are clearly considered one's property, and therefore should be protected under the 4th amendment, regardless of the fact that they were not in the mind of the author of the 4th amendment.

For a more contentious example, consider the right to marriage. This is deemed to come from the 14th amendment, which promises equal protection of laws and rights to all. Marriage clearly existed in 1865 and is covered under this amendment. But to what degree should it be extended? For this, we should consider what would be considered to be the core of marriage at the time, regardless of the institutions of segregation, etc. - basically, in seeking to protect one's rights under the law, which includes marriage, what is the core thing that is trying to be protected? If one honestly considers the issue, I believe they will find that to be an opposite-sex relationship & expression of great love. Clearly, Loving v. Virginia falls under this standard and is a sound ruling - in a society that has moved beyond racism, there is no justification for restricting one's ability to partake in this opposite-sex relationship based on their race. However, Obergefell v. Hodges does not. No matter how many ancient institutions you take away from the view of the author of the 14th amendment, the opposite-sex core does not become an any-two-people core, for no matter how many principles of equality and modern knowledge you add in, the author of the 14th amendment would not have reached a place where he would feel compelled to include a same-sex right. You only reach that point when you add in the purely political opinion that the opposite-sex core should be melted away - which is something that is outside the scope of the proper role of a judge. Whether same-sex marriage is a good thing or whether society is ready to change the core of marriage does not matter. It is simply outside the core of the right that the amendment intended to create.

[Kingpoleon]

I believe that principles must have a basis in the people. Regnat populus res patriam: The people rule this country. The Constitution is governed by our democracy, not the other way around. The moment we allow our people’s liberties to be restrained by the Constitution is the moment we allow our democracy to die.

[progressive85]

I don't believe the Constitution is always right.  It can and should be changed as time goes by.  There is an unreasonable reverence for this document.  The men that wrote it were flawed human beings.  What they did give us was a way to change what they wrote.  I think these men were humble enough to realize that these words they wrote would not be set in stone.  Times change, that is the nature of life, and sometimes the words of law are not good anymore.

[Southern Senator North Carolina Yankee]

I believe that principles must have a basis in the people. Regnat populus res patriam: The people rule this country. The Constitution is governed by our democracy, not the other way around. The moment we allow our people’s liberties to be restrained by the Constitution is the moment we allow our democracy to die.

Democracy and liberty are not the same thing.

Democracy has a long history of being very dangerous to civil and equal rights for instance. The constitution and the non-democractic institutions have to intervene and uphold the constitutionally protected rights of the people, from being infringed on by the dictatorship of the majority.

I don't think democracy is the over arching umbrella in this case. I think we are a constitutional republic, which has protections in its constitution for natural and civil liberties. We have a series of competing institutions, of which the democratic ones are counterpoised by equally powerful institutions representing difference interests. All democracy does is channel the will of the majority of people. People are naturally flawed and therefore capable of evil as well as good, therefore said majority could just as easily be evil. What makes us different from a country like Egypt, where you hold an election and the Muslim Brotherhood wins and the Coptics start getting killed, is that our system understands both the necessity of democratic and majority rule, but also the necessity of limiting and restraining said majorities.

Lincoln held to a similar belief, which is in the quote in the bottom of my signature. 
"A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people." - Lincoln's First Inaugural Address, emphasis mine.

It is why I support strengthening the democratic nature of the democratic institutions (ending gerrymandering, making the house larger, campaign finance changes), but at the same time strongly support preserving the Senate, the Independent Judiciary and the electoral college.

[IndustrialJustice]

Both strands of jurisprudence are ultimately unsatisfactory. I think Jedediah Purdy of Duke Law (soon to be Columbia) recently expressed this beautifully. Obviously living constitutionalism produces less reactionary and equitable results for the vast majority of the American citizenry, as originalism is nothing more than a nonsensical vessel for reactionary legal sentiment, but judicial "updating" is similarly undemocratic.

Living constitutionalism does at least allow Brown v. Board of Education, whereas it's clearly unconstitutional under both original intent (Scalia and Bork's original attempt at mainstreaming the concept, which was laughed out of the academy) and original public meaning, despite Michael McConnell's laughable attempts to argue otherwise.

[Reaganfan]

I'm an originalist. A Constitution/bill of rights that changes with the political whims of the moment is dead. They were specifically designed to not change with passions of the moment and to have their principles remain consistent through time; this is the best way to ensure that the rights of political minorities/individuals remain protected.

I agree with this completely.

[MarkD]

Both strands of jurisprudence are ultimately unsatisfactory. I think Jedediah Purdy of Duke Law (soon to be Columbia) recently expressed this beautifully. Obviously living constitutionalism produces less reactionary and equitable results for the vast majority of the American citizenry, as originalism is nothing more than a nonsensical vessel for reactionary legal sentiment, but judicial "updating" is similarly undemocratic.

Living constitutionalism does at least allow Brown v. Board of Education, whereas it's clearly unconstitutional under both original intent (Scalia and Bork's original attempt at mainstreaming the concept, which was laughed out of the academy) and original public meaning, despite Michael McConnell's laughable attempts to argue otherwise.

Justice Hugo Black -- the senior Associate Justice at the time of Brown -- also believed that the conclusion in Brown was consistent with the original intent of the Equal Protection Clause of the 14th Amendment. As he said in his dissenting opinion in Harper v. Virginia Board of Elections, ...

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[Southern Senator North Carolina Yankee]

Harlan and Black were correct on that.


It was Plessy that was the deviation from original intent, and this was solely because the Court was allowed to be influenced by political factors at the time.

The same can be said of the Dred Scott decision, which also violated original intent when it said that the framers could not fathom the idea of blacks being citizens, and yet five states allowed free blacks to vote in 1787.

[IndustrialJustice]

So we're back to being "original intent" originalists now that it's convenient, I see. Nevermind the fact that Scalia and all of the major Federalist Society players left this theory in the dust many years ago.

I think Michael Klarman rebutted these arguments pretty definitively in his 1995 Virignia Law Review piece; the legislative history of the Fourteenth Amendment itself makes this obvious. Opponents of the Amendment literally argued that it would desegregate schools, which many supporters denied on the record. The DC school system remained segregated until the 1950s.

And in no way was the "original public meaning" of the Amendment (the theory you're supposed to be articulating) understood in the 1860s to mean school segregation was unconstitutional.

This is no minor nitpicking, either. Your constitutional theory must sanction Brown to gain legitimacy; hence why originalists have so desperately tried to accept it despite its obvious fealty to living constitutionalism.

[MarkD]

So we're back to being "original intent" originalists now that it's convenient, I see. Nevermind the fact that Scalia and all of the major Federalist Society players left this theory in the dust many years ago.

I think Michael Klarman rebutted these arguments pretty definitively in his 1995 Virignia Law Review piece; the legislative history of the Fourteenth Amendment itself makes this obvious. Opponents of the Amendment literally argued that it would desegregate schools, which many supporters denied on the record. The DC school system remained segregated until the 1950s.

And in no way was the "original public meaning" of the Amendment (the theory you're supposed to be articulating) understood in the 1860s to mean school segregation was unconstitutional.

This is no minor nitpicking, either. Your constitutional theory must sanction Brown to gain legitimacy; hence why originalists have so desperately tried to accept it despite its obvious fealty to living constitutionalism.

The 14th Amendment does not say that segregation is okay, it says that everyone must be treated equally. The Equal Protection Clause has always been interpreted to mean a requirement of racial equality. For example, in Strauder v. West Virginia, Justices who were familiar with why the 14th Amendment was adopted, referred to the Equal Protection Clause this way: "What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?"

To paraphrase the way Bork explained in his book The Tempting of America, litigation that attacked segregation for several years before Brown successfully proved to the Supreme Court that segregated public facilities were consistently treating blacks worse than whites. "Separate but equal" was proving to be false in legal records and precedents. Continuing to litigate segregated facilities was not going to make those facilities equal. The Court was faced with having to either continue to litigate endlessly to try to make countless facilities become equal for the races, or else "separate but equal" would have to be abandoned. When that is seen as the only two possible options, it is clear that the Court had to put an end to segregation, because equality is what is the Constitution, not a guarantee of equality.

Ask yourself what would the proposers and ratifiers of the Fourteenth Amendment would do if they had seen the many precedents which proved that segregated public facilities were not, in fact, equal.

[IndustrialJustice]

So we're back to being "original intent" originalists now that it's convenient, I see. Nevermind the fact that Scalia and all of the major Federalist Society players left this theory in the dust many years ago.

I think Michael Klarman rebutted these arguments pretty definitively in his 1995 Virignia Law Review piece; the legislative history of the Fourteenth Amendment itself makes this obvious. Opponents of the Amendment literally argued that it would desegregate schools, which many supporters denied on the record. The DC school system remained segregated until the 1950s.

And in no way was the "original public meaning" of the Amendment (the theory you're supposed to be articulating) understood in the 1860s to mean school segregation was unconstitutional.

This is no minor nitpicking, either. Your constitutional theory must sanction Brown to gain legitimacy; hence why originalists have so desperately tried to accept it despite its obvious fealty to living constitutionalism.

The 14th Amendment does not say that segregation is okay, it says that everyone must be treated equally. The Equal Protection Clause has always been interpreted to mean a requirement of racial equality. For example, in Strauder v. West Virginia, Justices who were familiar with why the 14th Amendment was adopted, referred to the Equal Protection Clause this way: "What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?"

To paraphrase the way Bork explained in his book The Tempting of America, litigation that attacked segregation for several years before Brown successfully proved to the Supreme Court that segregated public facilities were consistently treating blacks worse than whites. "Separate but equal" was proving to be false in legal records and precedents. Continuing to litigate segregated facilities was not going to make those facilities equal. The Court was faced with having to either continue to litigate endlessly to try to make countless facilities become equal for the races, or else "separate but equal" would have to be abandoned. When that is seen as the only two possible options, it is clear that the Court had to put an end to segregation, because equality is what is the Constitution, not a guarantee of equality.

Ask yourself what would the proposers and ratifiers of the Fourteenth Amendment would do if they had seen the many precedents which proved that segregated public facilities were not, in fact, equal.

Bizarre response on many levels. You first to need to figure out what sort of originalist you are, because Bork's theory of original intent is dead. And for good reason: it's obviously problematic to center your search almost solely on what the (exclusively white male) writers of any given text in the early decades of America's history thought about anything.

Nothing you're saying really serves as a rebuttal. McConnell at least grapples with what happened in the 1860s and 1870s and offers the Civil Rights of 1875 as proof that the Congress of 1868 could not have thought school segregation was constitutional. But, again, original intent theory is dead, almost unanimously replaced by original public meaning.

[MarkD]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

[Sestak]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

In your view, then, would it be constitutional with regards to the Thirteenth Amendment for a state to pass a law stating that married women are not allowed to enter legal contracts, work for pay, etc. without the permission of their husband, and also that their husbands have complete control of their earnings?

Because the Congress that passed the 13th, 14th, and 15th Amendments would tell you that those amendments would not ban such a law.

[WritOfCertiorari]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

In your view, then, would it be constitutional with regards to the Thirteenth Amendment for a state to pass a law stating that married women are not allowed to enter legal contracts, work for pay, etc. without the permission of their husband, and also that their husbands have complete control of their earnings?

Because the Congress that passed the 13th, 14th, and 15th Amendments would tell you that those amendments would not ban such a law.

That’s actually not true. Look up the married women’s property acts. Things were changing by this point, and in fact the abolitionist and women’s rights movements worked hand in hand.

[Sestak]

My "sort of originalism" is the same as what Prof. John Hart Ely described as "Interpretivism" (clause-bound interprevetism) in his classic book "Democracy and Distrust." Interpretivism holds that judges should interpret the words of the Constitution "with whatever interpretive help the legislative history can provide." Hugo Black was the quintessential interpretivist, Ely said.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of particular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interprevist takes his values from the Constitution, which means, since the Constitution was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

Bork was satisfied that "clause-bound interpretivism," in the way Ely was describing what that means, is synonymous with originalism. I also like Ely's version of "clause-bound interpretivism," and I disagree with Ely that it is "impossible" to be an adherent to that philosophy.

In your view, then, would it be constitutional with regards to the Thirteenth Amendment for a state to pass a law stating that married women are not allowed to enter legal contracts, work for pay, etc. without the permission of their husband, and also that their husbands have complete control of their earnings?

Because the Congress that passed the 13th, 14th, and 15th Amendments would tell you that those amendments would not ban such a law.

That’s actually not true. Look up the married women’s property acts. Things were changing by this point, and in fact the abolitionist and women’s rights movements worked hand in hand.

The MWPI had not passed in all states by this point, and indeed it took some several more decades.


Also, there's this quote (which actually is literally on the Wikipedia page for the MWPIs:

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It was in fact the opposition, who voted to kill the amendment, who was arguing that the amendment applied to the servitude of married women.