When we interpret the Constitution, what is the difference between "original intent" and the "living document" approaches?
There are two ways through which to interpret the Constitution: the living approach and the original intent. The debate about how to interpret the Constitution is not whether the living or original intent should be used, rather, it is how much weight we should assign to the original intent in judicial decision making. In the living constitution approach, history and precedent are generally irrelevant. The living approach is referred to as “moderate interpretivism” as judicial authorities create policy to reflect modern needs through the constitution. Original intent, or “originalism” describes an interpretation technique which holds that the Constitution is a static document, that is not open to modern adaptation, interpretation, or change, and that it has a fixed and knowable meaning which is established at the original time it was created or ratified.
The subject of constitutional interpretation may seem like a topic best fitted for an ivory-tower debate, but it actually has a very real and dramatic impact on daily life (as will be demonstrated shortly). In recent years, two competing viewpoints have emerged.
Probably the first exposure most citizens had to the two views came during the 2000 presidential debates. When asked what type of judges should be placed on the bench, candidate Bush responded: “I believe that the judges ought not to take the place of the legislative branch of government . . . and that they ought to look at the Constitution as sacred. . . . I don't believe in liberal, activist judges; I believe in strict constructionists.” 1 Candidate Gore countered, “The Constitution ought to be interpreted as a document that grows.” 2 Gore later stated, “I believe the Constitution is a living and breathing document. . . . We have interpreted our founding charter over the years, and found deeper meanings in it in light of the subsequent experience in American life.” 3 So, the two choices are . . . follow original intent, or construct a living constitution.
Proponents of a living constitution believe that we should not be bound by what dead white guys wrote two centuries ago when slavery was legal, women could not vote, and horses were the fastest means of transportation. Instead, we should live under a constitution that is alive and vibrant, reflecting today's values and beliefs.
I rate this a 5 - I did not select poor