The Constitution: Originalism vs A Living Document
Does the Constitution mean exactly what it says?
Or is it meant to be a 'living document'?
The following are exerpts from an srticle by Jason Swindle at
https://www.swindlelaw.com/2017/10/originalism-living-constitution-heritage/
The excerpts are between the 2 black lines
-Some of it is paraphrases. Most ot it is copied word for word.
My own conclusion is at the end after the last black line.
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ORIGINALISM
those who make, interpret, and enforce the law ought to be guided by the meaning of the Constitution as it was originally written. The vast majority of Originalists begin with the text of the Constitution, the words of a particular sentence or paragraph. Textualism considers the words of the document to be authoritive while keeping in mind the traditional American principles behind the text. (Think of the text of the 1st Amendment and the reasons why our freedom loving Founders wrote it.)
Admittedly, understanding the Founders’ original intent is not always a simple task. It can take tedious work and sometimes produces vigorous disagreement. However, Originalism is logically, as opposed to emotionally, the best way to interpret the Constitution for five fundamental reasons.
1. It binds and limits any particular generation from ruling according to the passion of the times.
2. It complies with the constitutional purpose of limiting government. It understands the several parts of the massive federal government have no legitimate existence outside of the Constitution.
3. It supports the separation of power between the three branches of government by limiting the power of the judiciary. It prevents the Supreme Court, and other courts, from “creating law” which is a reserved power for the legislative branch
4. It reflects the Founders’ understanding of the self-motivated impulses of human nature. The Constitution inherently works to frustrate those impulses while leaving open channels for changing (amending) the document as needed.
5. Most importantly, Originalism is not result-oriented. If a law is unconstitutional, then so be it. The Originalist is like Chief Justice Roberts’ description of the role of a judge; judges should be like umpires calling “balls and strikes.” “Umpires don’t make the rules, they apply them.” The Originalist believes that it does not matter which party wins or loses.
LIVING DOCUMENT
It has no fixed meaning, subject to changing interpretations according to the spirit of the times. an unwritten charter to be developed by contemporary values. That basically means that the document can be made to say whatever you want it to say. This means it is not a law unto itself but it becomes subject to the whims of men.
The problem here is that for some people, it can be tempting to “create rights”, “take away rights”, focus on the desired end result, and inject personal views into a case.
The primary argument supporting a “living document” theory is that we live in changing times.
BUT The Constitution already provides for a system to live, breath, and change. The document has been amended 26 times based on mistakes and the needs and desires of our ever-changing American society. The power to amend the Constitution, though necessarily difficult, is the primary reason the document has been able to survive the turbulent changes throughout the past 200 years.
The support and/or application of the “living document” theory creates inconsistent law, regionally based law, is arbitrary, and further politicizes the judiciary.
Originalism- The Constitution establishes a Rule of Law
Living Document-The Constitution eventually becomes an ever
changing Rule of Men
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Which of these shall govern our country?
Which of these was our country meant to be governed by.
Why was the Constitution written?
It was written to be the Supreme Law of this land by which this country was to be governed.
A Living document theoory of interpretation takes away any guarentee of rights or self government and opens the door for tyrants and tyranny.
The Constitution was meant to be interpreted AS WRITTEN. Without that given assumption it has no meaning, guarentees no protections and had no purpose in ever being written. Ultimately, the Living Document interpretation is a ploy to undermine the Constitution and even allow for it to be done away with completely.
