Reference no: EM133229502

Assignment:

Should the Constitution be viewed as a flexible framework or a document that has fixed meaning? The public is evenly split on this issue, with 49 percent saying that constitutional interpretation should be based on "what it means in current time" (the living Constitution approach) and 46 percent saying that it should be based on "what it originally meant" (originalism). However, there is a deep partisan divide on this issue, with 70 percent of Democrats taking the living Constitution approach and 69 percent of Republicans supporting originalism.
The meaning of the Constitution doesn't change.

Justice Clarence Thomas is perhaps the strongest advocate of the originalist view. He wrote-"Let me put it this way; there are really only two ways to interpret the Constitution-try to discern as best we can what the framers intended or make it up." Former chief justice William Rehnquist, although generally adhering to the originalist view, took a more nuanced approach. He favorably cites a 1920 Supreme Court opinion by Oliver Wendell Holmes-"When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters." John Marshall in McCulloch v. Maryland also endorses this view, saying the Constitution was "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." Rehnquist says that "scarcely anyone would disagree" with the idea that the Constitution was written broadly enough to allow principles such as the prohibition against illegal searches and seizures to apply to technologies, such as the telephone or the Internet, that could not have been envisioned by the framers.

However, according to this view, the meaning of the Constitution cannot change with the times. Rehnquist writes that "mere change in public opinion since the adoption of the Constitution, unaccompanied by a constitutional amendment, should not change the meaning of the Constitution. A merely temporary majoritarian groundswell should not abrogate some individual liberty truly protected by the Constitution." Therefore, recent rulings restricting the death penalty (which is clearly endorsed by the Constitution), expanding gay rights, or allowing children to testify remotely against their sexual abusers rather than having to confront them directly in court (as guaranteed by the Sixth Amendment) would all be inconsistent with the originalist view. This view would also hold that anything other than relying on the meaning of the words of the Constitution allows justices to "legislate from the bench," which is undemocratic given that the judges are not elected.

The meaning of the Constitution changes with the times. Proponents of a living Constitution argue for a more flexible view. Justice Thurgood Marshall advocated a living Constitution, noting that the framers "could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave."

If the meaning of the Constitution is fixed, then the Court would have to uphold a state law allowing the death penalty for horse stealing, which was common during the Founding era. Executing horse thieves, or, more realistically, children and the mentally impaired (which was allowed in many states until 2005), is unacceptable in a modern society, even if it would be allowed by a strict reading of the Constitution.

Answering the question about how justices should interpret the Constitution ultimately depends on one's broader views of the proper role of the Court within a representative democracy. Should justices be constrained by the original meaning of the Constitution, or should that meaning evolve over time (and if so, should judges be the ones to make that evolution?)?

If you were on the Supreme Court, would you adopt an originalist or a living Constitution approach? Justify your position.