Living Constitutionalism v. Originalism.

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  • 08/21/2022

Several years ago, a group of leading progressive jurists produced a document titled, “The Constitution in 2020.”

The document laid out their vision of how a progressive constitutional interpretation would transform the way the Constitution is applied to American law. This interpretation would accommodate new “constitutional rights” to guaranteed income, government-funded childcare, increased access to abortion and physician-assisted suicide, liberalization of drug abuse laws, and open borders.

These activists represent the extreme end of one school of thought within constitutional interpretation—the school known as “living constitutionalism.”

Originalism is an attempt to understand and apply the words of the Constitution as they were intended.

Living constitutionalists believe the meaning of the Constitution is fluid, and the task of the interpreter is to apply that meaning to specific situations to accommodate cultural changes. In other words, living constitutionalists believe the language—and therefore, the principles that language represents—of the Constitution must be interpreted in light of culture.

On the other end of the spectrum is the school of thought known as “originalism.”

Though originalism has existed as long as justices have sought to interpret the Constitution, over the past few decades it has garnered far more attention than in the past.

[caption id="attachment_179202" align="alignright" width="289"] American Restoration[/caption]

This is partly because of the outspokenness of contemporary living constitutionalism, which necessarily throws originalism into sharp relief. In addition, originalism has had some very high-profile advocates in the recent past, most notably the former Attorney General Edwin Meese III and the late Associate Justice Antonin Scalia.

Originalism is an attempt to understand and apply the words of the Constitution as they were intended, working only within the limits of what the Founding Fathers could have meant when they drafted the text in 1787. This interpretative method requires judges to consider the ideas and intellects that influenced the Founders, most notably British enlightenment thinkers like John Locke and Edmund Burke, as well as the Christian Scriptures.

The escalating conflict between originalism and living constitutionalism is symptomatic of America’s increasing polarization.

Though it may seem a bit esoteric, it is vital that ordinary Americans— even those who have never attended a constitutional law class or who have no desire to go to law school—seek to understand this conflict and develop an informed perspective.

For those of us who incline toward an originalist perspective, a good place to begin understanding the nuances of this debate is the life and writing of Justice Scalia.

Justice Scalia modeled a unique and compelling way to engage in this often hostile debate. He defended originalism forcefully and eloquently, never backing down from his belief that laws ought to be made by elected legislators, not judges. But even more noteworthy than his staunch philosophical convictions is the way he engaged with his ideological opponents.

The escalating conflict between originalism and living constitutionalism is symptomatic of America’s increasing polarization.

Scalia maintained decades-long friendships with stalwart living constitutionalists who vehemently disagreed with his interpretive methods. After his death, two of the most committed living constitutionalists on the Supreme Court—Justices Ruth Bader Ginsburg and Elena Kagan—delivered tributes to Scalia praising his grace and personal warmth.

In a speech given just weeks before his death, Justice Scalia expressed his belief that America is a religious republic and faith is a central part of our national life and constitutional understanding. He went on to say the Lord has been generous to the United States because Americans honored God, even though, as human beings, we have been far from perfect.

In his view, if renewal was to occur, the original intent of the Constitution must be restored to outline a form of government built on respect for human dignity, which brings with it respect for true freedom.

It is that understanding that will help restore our government to the intentions of the Founding Fathers—a government by the people, of the people, and for the people.

This article in an adapted excerpt from American Restoration, the new book from authors Timothy S. Goeglein, vice president for External and Government Relations at Focus on the Family, and Craig Osten, a former political reporter and ardent student of history.



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