On the question of how courts should use their power to interpret the Constitution, there are two major schools of thought. One side believes that the courts should give the same meaning to the text that the Constitution's authors would have in 1789. They argue that if we don't like what the Constitution says, we can amend it to say something else. However, others argue that the courts should interpret the text of the document in the light of modern life. For example, hanging horse thieves might have seemed just fine in 1789, but now we might think that is "cruel and unusual punishment."
(1) Do you think courts should stick to the letter of the Constitution when interpreting what it means, or should judges consider the Constitution a "living document" that changes with the times?
(2) Why? Support your answer with a well-reasoned argument.
(3) What do you think is the best argument against your position?
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My own view on this issue is more in line with the “living Constitution” side. I do not believe that it is possible or appropriate to try to follow the “original intent” of the Constitution.
There are two aspects to this argument. First, I do not think it is possible to know what the Framers of the Constitution meant. How do we determine what the consensus of the 55 men at the Constitutional Convention (or even of the 39 men who signed the document) was on any given issue? They did not all leave written records of what they believed. So do we just go with the writings of those who did leave records? Do we go with the notes taken of the debate? How well does that really tell us what “the Framers” as a body believed? Second, even if it were possible to know, that does not mean that we should simply go with the beliefs of the Framers. These men were smart enough to set up a good system of government, but they were not morally perfect. These were men who believed in male supremacy. Most of them believed that slavery was acceptable or even good. There were definitely ways in which they were not admirable and it seems silly to think that we should simply accept all of their attitudes and allow those attitudes to rule us today.
The strongest argument against this is that it undermines the idea of rule of law. If we allow judges to simply change the Constitution based on their own understandings of what is right, the Constitution loses some of its meaning. Why have written laws if we do not follow those laws? This is definitely a weakness with my attitude towards interpreting the Constitution.
The Constitution is a document of limited Government. That often gets lost in the liberal effort to twist the document into a political tool. That is what is meant by the living Constitution. Rather than acting against the federal government's inclination to expand beyond its originating purpose, it becomes the justification. Frankly, using it as a political tool actually removes any issue of legal interpretation it takes on issues of political expedience. The Supreme Court then simply bestows the imprimatur of legitimacy. Contrary to the strawmen arguments about original intent, it at least is standards based. The living Constitution is free of standards. It will be what the politics of five justices say it is. The morality or conduct of each individual framer of the Constitution is irrelevant and ad hominem. Slavery was removed from the Constitution by amendment not by living Constitutionalism. The real problem with living constituionalism is that it only works in one direction. Living constitutionalist never accept a "conservative" interpretation even while they argue that such a decision is against their convenient "strict construction." Being free and loose with the Constitution only applies to liberal interpretation. Strict interpretation of the Constitution actually relies on a wealth of material written around the time of our country's founding and the adoption of the Constitution not to mention a century's worth of interpretation. But all that is inconvenient to progressives.
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