The Great Debate

The “Great Debate” in constitutional law, one that has raged for over 200 years[1] and most recently boiled in Obergefell v. Hodges[2] (the same-sex marriage case) is this: Should courts interpret the Written Constitution’s text as it would have been understood by ordinary citizens alive at the time the text was adopted? Or should they interpret the Constitution as a “living” organism, one meant to evolve to suit the changing needs and values of contemporary American society? Originalists believe that if the Constitution must evolve to keep pace with our constantly changing world, we should seek this change through the legitimate amendment process of Article V.[3] Simply put: amendments should come from the people, not the Supreme Court.

      However, proponents of a Living Constitution believe that the formal amendment process is too “cumbersome”[4] to keep the Constitution current—that it is too difficult to amend the Constitution under the process set forth in Article V – and that necessity therefore requires the Supreme Court to amend the Constitution from the Bench.[5] For example, if the duly ratified Constitution does not give Congress sufficient power to deal with a global economy and contemporary social issues such as same-sex marriage, then it is the duty of the Court to recognize that the Constitution has somehow evolved to meet our ever-changing political needs. After all, why should contemporary Americans be encumbered with the views and philosophies of long-dead white males who had no understanding of the needs and values of America in 2016?[6] And, as Justice Brennan liked to say, there are so many “majestic generalities and ennobling pronouncements”[7] in the Constitution –due process, equal protection, privileges and immunities—and these “luminous and obscure” terms make it so easy to interpret the Constitution to mean whatever the Court wants it to mean while still claiming faithfulness to the written text.[8]

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[1] I am referring to the great debate between Justice Chase and Justice Iredell that took place in 1798 in Calder v. Bull. See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).

[2] 576 U.S. (2015).

[3] U.S. Const. art. v.

[4] See Erwin Chemerinsky, Constitutional Law: Principles and Policies 24 (5^th ed. 2015)(stating that the “cumbersome amendment process” makes it too difficult for we the people to amend the Constitution and thus judicial amendments are “necessary if the Constitution is to meet the needs of a changing society”).

[5] Id. David Strauss also argues that we need a Living Constitution created by the Court because “the world has changed in incalculable ways” and “it is just not realistic to expect the cumbersome amendment process to keep up with these changes.” David A. Strauss, The Living Constitution 1-2 (2010).

[6] See Thomas E. Baker, Constitutional Theory in a Nutshell, 13 William & Mary Bill of Rights J. 57, 73 (2004) (explaining how nonoriginalists reject “being ruled by dead white men”). Of course, Supreme Court Justices do not live forever and yet their opinions under the Living Constitution “rule” us from the grave. For example, all of the Justices who decided Roe v. Wade are now dead. See Originalism: A Quarter-Century of Debate 310 (Steven G. Calabresi, ed. 2007) (noting that the holding of Roe v. Wade represents “the dead hand of the past for us now”).

[7] Justice William J. Brennan, Jr., Speech to the Text and Teaching Symposium, Georgetown University, Oct. 12, 1985, in Originalism: A Quarter-Century of Debate 56 (Steven G. Calabresi, ed. 2007).

[8] Id. In Justice Brennan’s mind, the ambiguity of these majestic generalities “calls forth interpretation, the interpretation of reader and text.” Id. And for himself, as a modern Justice reading the text of the Constitution, Brennan explained that “the ultimate question must be: What do the words of the text mean in our time?” Id. at 61.