2016 was a year of hotly contested debate. The presidential election raised many political issues that influence our daily lives. Healthcare, abortion rights, Black Lives Matter and the Second Amendment were all discussed at length throughout the campaign season. These issues and debates that affect us today are not the same as the debates of the past. As times change so do the issues that face our society, with one exception. Since the inception of our nation, the debate over constitutional interpretation has not changed. Revisionism promotes the idea that our Constitution was written to adapt and change with the evolution of our nation: that the words of the Constitution were written to be bended to fit modern applications. While logically sound, this idea is erroneous on multiple fronts. Originalism, while imperfect, is the only interpretation that can consistently be applied to legal issues without undermining our legal and judicial system.
Originalism should be used to interpret contemporary legal issues. The doctrine of originalism holds that when considering federal statutes or the Constitution, a judge or justice should consider how the text was understood by the legislators that passed them. Some hold that the words of the Constitution or federal statutes are meant to adapt to current issues. While convenient, this idea undermines the text of the approved legislation. Originalism is the only philosophy that should be utilized because the Constitution is a legal document and because the Framers included an amendment process to the Constitution. Also, judges are not elected members of the government, removing their right to interpret constitutional issues and statutes as they see fit.
Because of its historical significance, the Constitution is commonly seen as a document of vague values that the Framers hoped to instill in our nation. Separation of powers, federalism and republican government are all essential ideas that the Framers needed to instill in the newly formed government. This view leads to the ideology that the Constitution should be interpreted broadly to accept any legislation that is pursuant to those vague values. If Congress passes a bill that aims at the values the Framers believed in, how can it not be considered constitutional? On the contrary, the language of the Constitution is quite specific, detailing how they would instill those values in the structure of our government, rather than simply listing values they thought necessary for proper governance. This broad interpretation outlined above would only be useful if the Constitution was a list of values rather than a detailed governmental structure with federal powers explicitly written out. Because the Framers passed a legal document, we cannot simply consider broad values that the Framers had in mind when drafting the language of the text. They would not have spent four months fully structuring a government with expressed powers if they did not want the language to be considered on its own.
The Constitution is a legal enactment, defined as a legal document codifying the result of deliberations of a committee or society or legislative body. This means that the document is legally binding because of its passage through a body that represents the wants and needs of a constituency. The text within the Constitution was debated and altered for months, making each word very important and essential to the rest of the text.
The revisionist argument is that the Framers could not have predicted how the nation would change over time, so the Constitution needs to adapt to new political issues. On the contrary, this is exactly why we need originalism. The Framers could not have predicted how the nation or even the English language would change, so when considering constitutional issues, we must only use the text as understood by the body that passed them. Justice Scalia was known for consulting dictionaries from the time of the Framers or time periods of specific constitutional amendments to understand what those words meant to the legislators that passed them. Those clauses were written by people democratically elected to represent the people and signed by the President, who is entrusted to approve or disapprove of legislation that his/her constituency wants. This makes the provisions and its specific language binding, and twisting those words to fit modern times takes away from its approved purpose. Since the Framers could not have predicted how times would change, we cannot merely figure out how to apply their words for them. If judges are allowed to change the definition of approved words, they have the power to use constitutional and statutory provisions that do not exist. We must look at what the text meant to the Framers to understand why they were included in the Constitution and whether our current issues fit those goals.
When drafting the Constitution, the Framers understood that times would change in ways they could not predict. To adjust for a changing society, they included the amendment process in Article V of the Constitution. Per Article V, to add an amendment either two-thirds of both Houses of Congress or a convention called upon by two-thirds of the states are necessary to propose the amendment. For it to be ratified and added to the Constitution, three-fourths of the states’ legislatures must vote to ratify the amendment. This process, while extensive and difficult, allows for the Constitution to be adjusted or mended.
Since its inception 228 years ago, the Constitution has been amended 18 times. Enough amendments have been added to prove that the process is not too difficult to change the Constitution to modern times, but there is a small enough number of amendments to show that the Constitution cannot be amended whimsically. Since the Constitution is the foundation of our nation, adding amendments should not be an easy process. If the amendment process was easier, amendments could be added more often and based on ever-evolving political issues. The Constitution is not a document meant to address political issues, rather, it sets a framework for political issues to be resolved. Since amendments are just an extension of the original document and have the same legal standing, they should be held to the same standards.
While adding an amendment seems like a simple answer to a changing society, the process is tedious and usually ends before it has really begun. This extensive process makes adding just a single amendment a major victory, proving how difficult it is to adapt the Constitution to modern times. To account for this, the Framers included the Necessary and Proper Clause in Article 1 Section 8. This clause allows Congress to create new agencies and new bodies that help carry out the enumerated powers listed in Section 8. While the powers of the government cannot change, Congress’ methods for enacting them can. As long as Congress passes bills within its 17 delegated powers, whatever body or method it uses to do so is constitutional. This gives the Constitution a flexibility in its practical use through a changing society.
Those who subscribe to the philosophy of the “living Constitution” argue that the amendment process is not necessary to adjust the Constitution to contemporary issues; that the Framers carefully constructed the words of the Constitution to be vague enough so that even as times change, the words will still be applicable. While logical, this argument essentially ignores the tiresome process included in the original document for adjusting the Constitution. Proponents of this belief are essentially showing that the amendment process is so hard that they would rather just circumvent it. Yes, it is true that the amendment process is long and usually leads to no result, but that is exactly why it was included. The Framers purposefully created the amendment process to be extensive because it required thorough debate. Simply proposing an amendment requires two-thirds of both Houses’ approval. This alone would lead to massive debate and argumentation to acquire the necessary votes. Following a successful proposal, three-fourths of the states are required to vote in favor of the amendment for it to become supreme law of the land. Each state legislature would have their own series of debates to garner enough votes to pass or not pass the amendment in their own government. Through all of these debates and subsequent votes, all issues or problems with the proposed amendment and its language would be exposed.
Nor, however difficult it may be supposed to unite two-thirds, or three-fourths of the state legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority (Hamilton, Federalist Papers, 85).
The debates in the Houses would raise issues with the proposed amendment’s effect on the rights of the people and the powers of the government, while the state governments would hash out the amendment’s effect on national authority. This thorough debate would determine if the proposed amendment is worthy of the legal standing of the Constitution.
The law cannot change day to day. While the Constitution should have the pliability to adapt as times change, allowing the law to change as frequently as judges decide creates an unreliable judicial system. The law supersedes politics as a system that governs both the structure of government as well as the people in its jurisdiction. If this legal system can change daily, any judicial decisions made previously are invalid. This makes law enforcement impossible as there will not be a clear definition of what is considered legal or illegal on that particular day. Similarly, lawyers will not have a basis on which to organize their arguments either to a judge or to a jury. Our legal system will shift from one reliant on stare decisis to one reliant on that day’s decisions of the judge.
Members of the House and Senate are elected by a vote from constituents every 2 or 6 years, respectively. The people that give life to the government and give meaning to the Constitution periodically vote for those that represent their needs in government. Those people have the right to decide who is given the power to write laws that affect their daily lives: the power to interpret and test the limits of their constitutional barriers. If those representatives exceed their limits, the people reserve the right to replace them at the polls.
Justices and federal judges are added to their respective court by nomination from the President and eventual confirmation by the Senate. They are unelected, meaning they do not have a constituency to answer to. The voters did not decide who would sit on the federal bench or even the supreme bench, changing the role that these government actors can play in governing. Because they are unelected, federal judges cannot interpret the Constitution or federal statutes. Their purpose in government is to ensure that legislation passed by Congress and actions taken by the President are allowed by the Constitution. These judges have no accountability because they have no constituency that they answer to on election day. They can make any decision they choose without losing their job. Because of this lack of accountability, they must solely rely on the words of the text as understood when passed by the body that voted for them. Whether the Constitution passed by the Convention or a federal statute passed by Congress, it is the duty of federal judges to consider what the text meant to those that are accountable to the people.
If federal judges were allowed to bend and twist the Constitution and other federal statutes they would be able to bring personal politics into their decisions, a dangerous threat to the integrity of the judicial system. While the legislative and executive branches of government have personal politics at its core, the judicial branch should stay away from personal beliefs. Once personal politics become involved in judicial decision making, the President would nominate judges and justices based on their political beliefs, rather than their knowledge of the Founding Era and experience working with the Constitution. Essentially, the revisionist philosophy of constitutional interpretation would politicize the legal branch of the government.
If judges can interpret constitutional issues on their own, they will have the ability to run the country. The Constitution is the supreme law of the land, and because justices and federal judges have judicial review, the decisions that come out of the Supreme Court are final and cannot be overturned or overruled by other branches. When these unelected judges can interpret the law without accountability to the people and without consulting the Constitution, they can make national decisions without any consequences. The people of the United States voted for the President’s electors and for the members of the Houses, but they did not vote for the justices of the Court, invalidating their ability to make decisions of national importance without consulting the Constitution.
The constitutional interpretation debate is an everlasting argument with no perfect answer. Some, correctly, see the Constitution as a document of values that the Framers determined are necessary for a successful democratic republic. This view overlooks an important aspect of the Constitution, though; the Constitution is a legally enacted document meant to be read with the understanding of those that approved of its text. The Framers could not have predicted how the definition of their text would change, so we must consider the definitions of the words that they passed. If the Constitution seems outdated or is missing a provision that is necessary to keep pace with the zeitgeist, the Framers included an amendment process to add clauses with the same legal standing as the original document, even if it does require extensive debate and argumentation. Finally, the court system has a legal foundation rather than a political one, and allowing unelected judges to whimsically interpret the Constitution and other federal statutes is irresponsible for maintaining the integrity of our democracy. While inconvenient for easily promoting political goals and social progress, the philosophy of originalism is the only doctrine that protects our judicial foundation.