Since its inception, America has gone through a myriad of changes. In its short life of just two-hundred-forty-three years, America has become an independent nation, expanded West, ended slavery, introduced and later abolished prohibition, established equal voting rights, ended segregation, and legalized gay marriage. When one sits down and thinks about it, that’s a lot of changes for one country to go through in such a short time. However, none of these changes happened overnight. In many cases, in fact, it took decades (sometimes even centuries) of desperate protesting and lobbying before any change could occur. Ultimately, it wasn’t just the pickets in the streets that allowed these changes to happen. It was pen, paper, the common-law judicial system, and the theory of living constitutionalism.
In the American government, law is constructed through a variety of mediums. In most cases, laws are drafted through legislation. First, a bill is proposed to Congress through one of its members (either a senator or representative). Then, Congress debates and votes on whether or not the law should be passed. After Congress has come to a decision, the President approves or vetoes the decision. If the President approves the bill, it becomes a law. In certain instances, however, laws can be changed or overturned. This can be done through the same process or a Supreme Court decision. Both processes are equally important in discussing how law impacts society and is changed by it. Written law creates a guideline, and as the needs of the public evolve, the Supreme Court makes adjustments.
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When constructing written law, there is a variety of criteria a legislator should consider. According to legal philosopher Lon L. Fuller, eight criteria must be met for there to be a true rule of law: generalization, publicity, prospectivity, intelligibility, consistency, practicality, stability, and congruence. If a legal system fails just one of these criteria, it is a bad system or no system at all. When it comes to the language of the written law and its application, intelligibility, consistency, stability, and congruence are the most important of these criteria. This means that the law must be written in a way that people can understand it, it cannot contain any contradictions, it cannot be frequently updated or changed, and it must be consistently upheld in judicial administration. All in all, a good rule of law should furnish those subject to the norms with a calculable basis for running their lives or their businesses. Once written law has been properly constructed, there should be no confusion among the general public about how to follow it. There also should be no confusion among the judicial branch about how the law is applied. However, because of the way written law is applied in criminal and civil cases, the law may not always be applied in a way that is consistent or fair. The reason for this? No, it’s not corruption (usually). It is simply the fact that different justices have different ways of interpreting the law.
The first and most fundamental method of interpreting written law is by examining the literal definitions contained in the statute. In contract law, this interpretation is referred to as the plain meaning rule. The degree to which literal definitions are applied varies, but there are generally two schools of thought formalist justices prescribe to, the first of which is strict constructionism. Strict constructionism is the rigid adherence to the grammatical structure of how a law was written. The problem with this school of thought lies not only in the fact that it lacks flexibility for the wide scope of thought necessary for judicial rulings but also in the danger it poses to the accused. The late Supreme Court Justice Antonin Scalia gave an example of how this method fails in his journal, ‘Common-Law Courts in a Civil-Law System’. In Scalia’s example (which was based on a statutory case his court had previously handled), a man engaged in a drug deal and traded an unloaded gun for cocaine. The problem at hand was in the statute relevant to the case. According to the statute, a defendant would face increased jail time if “during and about a drug trafficking crime (the defendant) used a firearm”. Unfortunately for the defendant, six out of nine justices with Scalia voted to uphold this statute in sentencing, despite the defendant having used the gun as currency, rather than a weapon. This is the danger that lies in strict constructionist thinking. Because of the narrow-minded reasoning it espouses, there is too high a risk that a statute will be applied in a way that it is clearly not meant to be.
A more lenient approach to formalistic justice is textualism. Like strict constructionism, textualism focuses on the literal meaning of a written law, without context. It does not consider non-textual sources, original intent, original application, or judges’ personal rectitudes on a matter. The difference between textualism and strict constructionism is that textualism focuses on a word’s ordinary meaning rather than its literal definition. This allows the law to be construed reasonably, not strictly (or liberally, for that matter). This is the school of thought Justice Scalia prescribes in his rulings.
Another variant of formalist interpretation is originalism, which also dismisses what words in a statute are intended to mean. What separates originalism from textualism and strict constitutionalism is that originalism examines what the words in the law meant at the time of its drafting. One problem with the originalist school of thought is that the meaning of words may change over time, allowing a statute to be misinterpreted by the modern public. Another, more concerning problem originalism (and other formalist sentiments) faces is the disregard for context or extenuating circumstances in a case. Lon L. Fuller examines these dangers in his article ‘The Case of the Speluncean Explorers’. In the fictional (although inspired) case, a group of five men went exploring in some remote caverns. During their expedition, heavy boulders collapsed on the entrance to the cavern, and the explorers became trapped in the cave for several weeks after ten rescuers had failed to liberate them. Over time, the explorers ran out of food supply and became delirious with hunger. Realizing they had no other option than to resort to cannibalism, the group entered into a contract (a solution offered by group member Roger Whetmore) wherein each one of them would roll a die, and whoever landed on a certain unlucky number would be sacrificed. Before his turn, Whetmore backed out of the contract and requested someone else roll the die for him. Lo and behold, he was the one to roll the unlucky number and be sacrificed. When the remaining explorers were eventually rescued, they were tried for the murder of Whetmore. In reviewing their case, one of the deciding factors lay in the murder statute of their society. The statute in reference stated: “Whoever shall willfully take the life of another shall be punished by death”. If this statute were to be taken literally, the explorers did willfully take the life of Whetmore and were thus murderers who were legally required to be hanged. However, the defendants were also delirious, they were in a state of nature, and Whetmore had consented to his death when he signed the contract. All of these factors were ultimately disregarded in this case, and the court sentenced the surviving explorers to death because, as one justice put it, “the written law requires the conviction of these defendants”. This is the danger of formalist methods in judicial interpretation. While this is certainly an extreme (and grotesque) example, the message behind it is sound: literal interpretation of the law is simply too close-minded to be an ethical method for determining cases, especially in criminal cases where a person’s life lies in the balance.
One theory of judicial interpretation that stands in contrast to formalist schools of thought is expectational originalism. Unlike its similarly-named antithesis originalism, expectational originalism argues that the law should be applied as it was originally intended to be applied. The reasoning behind this theory is that it allows room for flexibility in cases like the aforementioned. After all, according to Scalia, “The primary object of all rules for interpreting statutes is to ascertain the legislative intent”. While this theory may seem foolproof at first glance (it solves a lot of the problems in formalist theories, after all), its vague catch-all nature poses potential for other sorts of problems, namely corruption. Behind the smokescreen of pursuing supposed legislative intent (that may or may not have been purported in the first place), common-law judges can manipulate statutes to their own personal liking. Besides, a society that governs by implied intent is tyrannical. As Scalia best put it, “Men may intend what they will; but it is only the laws that they enact which bind us”.
The universal flaw with each of the preceding theories is that they all offer the potential for inconsistent interpretation and application. Two important requirements of American procedural law are the right for a defendant to hear the grounds for a given decision in court and the right to an argument. The good thing about these requirements is that they provide order to both the legal system and the government as a whole. Because of this, courts can settle disputes about different ways the law can be interpreted to give the general public a guideline for just living. The bad thing about these procedural requirements is that they lead to low predictability and inconsistency, a direct violation of Fuller’s eight criteria for the rule of law. The problem therein is that depending on the theory of interpretation being applied in a case, a defendant could argue both “I didn’t do it” and “I did do it, but the thing I did is not necessarily against the law being applied to me”. Additionally, this right to argument granted in procedural law means that depending on the quality of a defendant’s lawyer, a good argument could set a guilty person free (e.g., O.J. Simpson) and a weak argument could send an innocent person to jail (e.g., Kirk Bloodsworth). This is especially true in criminal courts, where the verdict is determined by a jury. In the end, defendants can only make the best arguments they can afford. In a society where lawyers work for profit, it is difficult to regulate fairness in courts between the rich and the poor, because better lawyers can charge more, dealing the poor and innocent a very bad hand. The one shining light in all of this corrupt darkness is that predictability can change as the values of the people change. This is where living constitutionalism comes in.
Living constitutionalism is the judicial interpretation theory that the body of law grows and changes over the years to adapt to the needs of the evolving modern society. This stands in contrast to most originalist thought, where law is ideally based on the written law in the original Constitution, rather than modern needs. The foundation of living constitutionalism lies in the way the judicial branch is structured in America. As previously mentioned, once a bill is written into a law, its application in day-to-life is exhibited through its use in court. That is, exceptions to a given law can be established, or it can be written out entirely, depending on the ruling of a high-enough justice (typically, this means Supreme Court level). Once these decisions are made, they can establish precedent, where a future court case can reference the ruling as law, and use it as a baseline for future decisions and legislation. Through precedent, “a whole system of law is built up without the authority or interference of the legislator”. This process, known as common-law, makes up a large portion of written law in America. The mere existence of common law is support for living constitutionalist theory. Common law corrects errors in existing laws and adapts the written law for its application in modern society.
One primary reason for living constitutionalist theory is that the meaning behind written law (or the language within it) can evolve over time depending on the climate of a given culture. This could mean that a law written hundreds of years ago could be wrongfully interpreted to have a meaning it doesn’t carry, simply because certain words in it may have either changed meaning over time or disappeared entirely. In this case, how are these laws to be interpreted? When conducting their day-to-day lives, ordinary people think of how the legal system functions in the world, not necessarily how it is written. So much of law is hundreds of pages long and drenched in legalese that it would be incredibly unreasonable to expect the average Joe to be able to read and understand all of it. The judicial branch, however, knows the written law word for word and, because of varying interpretations, may apply it in a variety of ways. This creates not only a conflict of interpretation between the general public and the judicial branch but an immense risk of accidental violation of the law. With living constitutionalism, this confusion does not exist. Since living constitutionalism demands an interpretation of the law through a modern lens, the meaning behind these laws is unambiguous and crystal clear. This clarity also makes it much more difficult for corrupt judges and lawyers to abuse the written law. With this mindset in place, the law can be applied as it was meant to be applied: fairly and justly.
In addition to accounting for language changes, living constitutionalism accounts for changes in public opinion over time. After all, what may have been considered ethical or fair fifty years ago may not be ethical in the present time (for example, segregation). Living constitutionalism factors in the inevitable fact that societies and opinions change over time (often for the better). At present, an act of Parliament cannot alter because of time; but the common law may, since cessante ratione cessat lex (when the reason for the law ceases, the law itself ceases). With living constitutionalist thought, judges are less constricted to dated ideologies of years past and have the freedom to create great change in the judicial system. Some of the most radical civil liberties were achieved through common law. Brown v. Board of Education eliminated segregation. Roe v. Wade legalized abortion up to viability. Obergefell vs. Hodges legalized gay marriage in all fifty states. The list goes on and on. Without common-law and living constitutionalist thought, these changes may never have been made.
Originalists argue that the Constitution should be treated essentially as the Word of God and remain untouched, but even the Constitution has amendments. Some of these amendments were repealed over time, as sentiments changed. A version of the Eighth Amendment (revised in 1958), which addresses cruel and unusual punishment, even uses living constitutionalist reasoning in its construction, stating that the meaning behind what is “cruel and unusual” may change to reflect “the evolving standards of decency that mark the progress of a maturing society.” This sentiment – this acceptance of and even support for an evolving society – underscores the purpose of living constitutionalism perfectly. Society is bound to mature and adapt over time, so the best thing we can do is steer into the skid, rather than fight it and risk tumbling over.
Of course, living constitutionalism would not be a popular theory without at least some opposition. One of the most common arguments against living constitutionalism is that overall there is often very little agreement on what the guiding principle for evolution should be, meaning that there will often be too many varying opinions on which changes should occur to please everyone with this philosophy. To use this viewpoint as an argument against living constitutionalism, however, is bluntly, pointless and simple-minded. There will always be people who disagree on certain issues. This is why we have a two-party system in America. People choose sides on issues and vote for the person who most advocates for the changes they want to see. America has always ruled by majority opinion and will most likely continue to do so for a while. There is no use pleasing the few when the many are screaming for changes to be made.
Another argument against living constitutionalism is that the voice of the majority (the general public) is one that cannot be trusted. The reason why the Electoral College was established was to protect America from an uninformed majority, after all. Justice Antonin Scalia, a proud originalist vehemently against living constitutionalism, argued that “this [living constitutionalism]… is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority”. The very existence of the Electoral College, and its trump ruling over the popular vote, is inherently a violation of the ‘majority rules’ sentiment of the American government. There have been five instances in history where the Electoral College elected presidents who did not win the majority support from the public: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000), and Donald Trump (2016). This pattern does not show an error of a misinformed general public, but an abuse of power by those in the Electoral College, voting against the wishes of the majority for their own personal reasons.
If it weren’t for living constitutionalist theory, some of the greatest strides in progressive American history may never have been made. Seeing society through an originalist lens only stuns the growth of a nation and denies the inevitable evolution that occurs within it as mindsets change. Having different ways of interpreting the law should, in theory, be a good thing, allowing justices to voice different opinions and evidence when making decisions. However, too often this leads to corruption, confusion, inconsistent application of the law, and abuse of power. With a living constitution, America could foster the forward-thinking mindset so many citizens are begging for. Living constitutionalism is the one judicial interpretation theory that not only anticipates change, but embraces it, and with that mindset, it may be the one theory that allows America to truly become as great as it could be.
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