An Original Constitution that needs Societal Evolution And Constructionism.
Welcome to one of the oldest debates in American history, the debate of the constitution and its interpretation. A new look into the old panorama.
The advancement of technology and the evolution of time impacted the rationale and thoughts of the people. Things which seemed to fit earlier were troubling today and vis-a -versa. However, there is one thing that remains constant in this changing time, and that is the constitution. The constitution is a body of fundamental principles, laws and norms drafted hundreds of years ago by the founding father. Though this document fulfils its every motive, but it is questionable whether they were sufficient for the present day. Or would it need evolution and construction? Invariably this becomes an incumbent part of every political issue. Whether it is the debate on the right to abortion or the gun laws or the extent of freedom or rights to the people. This is also the topic of today’s discussion whether we need the originalist’s ideology or the evolving mentality. Whether the constitution needs to be interpreted in a stricter textual sense? Or with the rationale of today’s tech and time? What is the ambit of the judiciary? And whether judicial activism is productive for a healthy democracy. This article would moot on this issue to provide the holistic story in a nutshell, to develop the rationale and let them decide what side they choose.
INTRODUCTION
Originalism is a theory of interpretation that states that the constitution should be interpreted in the original meaning that is based on the rationale of the constitutional drafter. This theory opposes social change and the evolution of the constitution. And view the constitution as a stable document that need not be altered. This was in order to preserve the original meaning and intention of the constitutional drafter. This theory is diagonally opposite to the view of judicial pragmatism or the theory of the living constitution. The theory of the living constitution states that the law and the constitution should be interpreted in reference to the present time or changed circumstances. The primary emphasis of this theory is on the dynamic role of the constitution. Its supporters believe that the law needs to be evolved as per the rationale and the technology. And this evolution would then provides actual justice.
The two theories were resting on an unbalanced beam on a troubling mountain peak. However, looking at the recent cases and judge’s opinions, it seems that the side of originalism was heavier it was prayed that the trouble would be resolved before this heavier side would lead the beam to plunge.
There is no actual definition of the term originalism and living constitution. Every jurist has his own theory and his own rationale. As far as this article is concerned the term originalism means the strict interpretation of constitutional provisions in accordance with constitutional framers. And the living constitution meant that the present circumstances should be considered, and the constitutional provision should be interpreted in order to provide the needed rights and liberty as required in the current times.
In the words of the Associate Justice of the Supreme Court, Amy Barrett, “Originalism is the belief that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Although the constitution’s function has been contested from its origin, it wasn’t until the Warren Court era that it began to receive more attention. One of the most liberal moments in American history occurred between 1953 and 1969, when constructionism, judicial involvement, and civil rights all underwent significant emancipation. Different legal experts and academics all voiced their opinions and fanned the flames of this old torch of interpretation.
Sneak Peek into Originalist’s Rationale..
Supreme Court Judge Justice Hugo Black was one of the major originalists, and it is said that his judgement sought the first wave of originalism. He benches some of the most famous yet controversial cases. Striking down federal provisions banning child labour, stripping minimum wage laws and the right of employees and workers to form unions, and many others on the basis that these rights were not explicitly mentioned in the constitution.
In the book, “The Tempting of America”, Judge Robert Bork expressed his sentiments about originalism that the constitution should be interpreted in the way the words have been used in the constitution and as understood at the time of enactment. He said that the Warren Court committed the same sin as committed by conservatives in the Lochner era. It had taken the will of the people and replaced them with its own principles.
Antonin Scalia, a prior originalist, said that the constitution was ‘dead, dead, dead; and in its deadness lay its glory.’ Quoting Scalia, “The only good Constitution is a dead Constitution. The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are — you know — come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers or even 30 lawyers.”
The same rationale was upheld by many other originalists, such as Justice Clarence Thomas and Justice Neil Gorsuch. In succinctly, it can be said that the originalists were against the living constitution in order to preserve the original text and the drafter’s interpretation of the cost of people’s rights and the need. The objective of the judiciary is to decipher law and analyze that they would be in accordance to provide the rights to the people and not to preserve the historical document. Before discussing the role of the constitution, one needs to understand why evolution is needed.
Dire Requisite of Constitutional Constructionism and Wider Interpretation?
It was Mr Justice Holmes that first in time reflected this sentiment of the living constitution in the case of Missouri v. Holland, referring that the constitution is not a dead document. Though, he restricts elaborating it more. However, seeded this very seed nurtured the way ahead. This seeded in the way was watered by the ideology of constitutional construction, legal realism and judicial activism.
A constitutional construction is a process of building institutions of government and implementing and applying the constitutional text and its underlying principles. One of the legal scholars, Jack M. Balkin, provided the role of the court in a two-fold manner, firstly to analyze the federal and the state laws as according to the constitutional framework and second to construct and interpret the original provision of the constitution in light or need of the society. As mentioned earlier, the Warren court was one of the greatest times that intensified the rationale of the constitution and led it to resolve the need of the society.
Incumbent Era of Warren Court
From 1953 to1969 Warren E. Burger served as the 15th Chief Justice of the U.S. Under his hegemony, the U.S. saw one of the most liberal times in history, when civil rights, judicial intervention and constructionism were emancipated drastically. His court brings “one man, one vote” & Miranda warning to the U.S., ends de jure racial segregation and incorporates many other rights.
The case of Brown v. Board of Education of Topeka outlawed the segregation of schools on the basis of race. And overturning the doctrine of Separate brought better equality. Similarly, the case Loving v.Virginia legalized interracial marriage. Providing ‘freedom of marriage’ as a fundamental right, which later preserved the legalization of gay marriage in 2015. (Obergefell v. Hodges). In Tinker v. Des Moines School District case, the court expanded free speech to students. Providing that freedom of speech includes nonverbal speech and the freedom to protest peacefully. In Baker v. Carr. Case, the court declared one person, one vote. Creating the demand for equal representation and proportion in state legislatures (Reynolds v. Sims).
All these case provides essential rights that were not directly carved in the constitution. And being at the discretion of the legislative body, they were violated by many federal and state laws. Here this judicial intervention and the construction seek its significance. To uphold the spirit and the rationale of the constitutional makers not just according to the need of their time but also in order to fulfil the aspires of this time.
Griswold v. Connecticut Case
The case of Griswold v. Connecticut protects the liberty of married couples to buy and use contraception without government restriction. The court ruled that the constitution preserves a “right to privacy” for couples, though this is not explicitly expressed in the language of the founding document and overturns state legislation.
Justice Black having a dissenting opinion, stated, “The legislation is every bit as objectionable to me as it is to my Brethren of the majority. However, this objection to the law was insufficient to supersede the constitution’s wording.” So, being an originalist, he does not try to preclude the wording, even knowing the law unfit for society. If that is the role of the judge, then I show my dissent to this role.
This case also paved the way for ruling like Roe v. Wade and P.P. of SE PA v. Casey, in which abortion was provided as a legal right that cannot be taken away by any law. Justice Antonin Scalia often used the Roe v. Wade abortion ruling as an example of how judges should never intervene.
It is argued that originalism was becoming synonymous with textualism. It needs to interpret in a broader connotation to recognize and provide the necessary provision to protect the people’s basic fundamental rights. The Warren Court has impacted us all, and without their Constitutional Revolution, the U.S. would not be what it is today, and we might not have the same rights as we do now. In every aspect, I support the rationale and opinion in favour of abortion rights, as in the case of Roe v. Wade. Condemning the judgement of Dobbs v. Jackson in which the court abstains from providing the abortion right just because the constitution is silent about it. There was a strict interpretation of the words that needed to be relooked in a better holistic manner to construct the right in need for the current time.
Role of Constitution
A BASE FOR THE RATIONAL MAKING.
Defending above why the constitution is more than a finished product and why there is always a requirement for judicial intervention. One of the major things that I support about originalism is that the original interpretation of the constitutional text provides a starting point or guidance of rules on the basis of which then we can analyze a present issue or moment in hand to be right or wrong. The assertor in the same command criticizes the living constitution provided that we have a decision ( that is we decide as of our knowledge and that times mentality) and we find back in laws and interpretations to justify it.
However, we always need to be concerned about the law and justice. And less about the approach to it. And so, while the former approach seems to be alluring, I prefer and support the latter one because that provides a better face of justice.
It was not only in the Justice warren era that we found the judicial interpretation, construction and activism, but many jurists from time to time shaped these rights and fundamental liberties. Justice Ruth Bader Ginsburg was one of those prominent judges who penned Lawrence v. Texas (The court in this case struck down statutes across the country that illegalize the sodomy between consenting adults acting in private, regardless of the sex of the participants), United States v. Virginia ( struck down the long-standing male-only admission policy of the Virginia Military Institute (VMI)), Olmstead v. L.C. (discrimination against people with mental disabilities) and many other. Similar were Justice Stephen Breyer, Justice Samuel Alito and many others who always echoed in favour of the living constitution and the need for judicial intervention.
Vague language and founding father
Justice William H. Rehnquist was also one of the prior jurists that favoured originalism. In his work. “The notion of the living constitution”, he severely criticizes the living constitution and judicial activism. William H. Rehnquist, though confident in the founding fathers, but was sceptical about the contemporary judges.
And many jurists defending originalism fail to convey how they thought the founding father wanted the constitution to be interpreted as at the time of its drafting and not at the contemporary time. Article V and the simplicity of the provision were two such aspects that state that the founding fathers, even though they were originalists, were aware of the possibility that the rights provided were insufficient. That is the reason that they provide the right to privacy but without elaborating leaves on the shoulder of the next-generation jurist as to what it means to privacy, speech and much more. Even the scholars and the jurist that led to the inclusion of the bill of Rights and the civil war depict the same ideology of the need for change with time and tech. And this shows originalists’ narrow perception of the ideology of the founding father. In the paper “Framework Originalism and The Living Constitution,” the scholar Jack M. Balkin opinioned how constitutionalism seeks to limit future discretion and prevent future generations from making bad decisions or straying from good values.
In the book “Constitutional Construction — Divided Powers and Constitutional Meaning” the author Keith Whittington contends that the constitution influences politics in order to direct and restrain political actors as they formulate public policy. In doing so, it also relies on political actors to establish authoritative constitutional requirements and to enact those essential agreements. Whittington refers to this process as one of construction rather than interpretation since it shapes constitutional meaning within politics at the same time that politics shapes the constitution.
Not even this, we even find many cases where even these originalist jurists diverge from the textual limit of the constitution to the extent of the scope of the rights.
The United States Supreme Court ruled in United States v. Jones that attaching a GPS tracking device to a car and using it to follow the vehicle’s movements counts as a search under the Fourth Amendment.
The Second Amendment covers more than simply muskets because of originalism. A lower court judgement maintaining New York’s 108-year-old rule restricting who can receive a licence to carry a concealed weapon in public was overturned by the Supreme Court in its 6–3 decision in the case of New York State Rifle & Pistol Association v. Bruen. Going beyond the text to provide it as a reasonable restriction. Not even this, they even diverge to hold that modern social media platforms are covered by the First Amendment’s guarantee of free expression.
In one of the major addresses to the people, American jurist Richard A. Posner proposed as to how constitutional law becomes the creation of the judiciary. He underly the statement on two basis. Firstly, on the basis of vagueness in the textualism of the constitution, which makes the work for the modern judge difficult to infer the actual intent of the framers. Secondly, as evidenced by the earlier amendment, such as that of the 14th (by which due process is added), it can be contended that the original intent was not sufficient, leading to the judicial construction of the constitution. Thus, it
However, discussed so far why there is a need for the living and evolving constitution that is necessary for governing the laws of the present. Two of the major objection of the originalists that I further like to moot in this debate times in form:
1. What is the requirement of judicial constructionism when the elected representatives can make laws in consonance with the current time and need?
2. Is the formal constitution’s proclamation (i.e. in the form of constitutional amendment) in lieu of these changes necessary?
