Why Supreme Court 'Originalists' Are Wrong About Constitution

Zach Miners

David Strauss discusses his book 'The Living Constitution'

While the U.S. Constitution was signed in 1787 as the final word on all legal matters, there's a lot of room for debate when interpreting it for contemporary times.

In his book, The Living Constitution, University of Chicago law professor David Strauss examines how the understanding of the Constitution needs to evolve, as it has, while still providing the anchor for American jurisprudence.

In doing so, he disputes the view of "originalists" -- among them current Supreme Court Justices Antonin Scalia and Clarence Thomas -- who argue for adhering closely to the words and intentions of the document's framers.

The constitutional law scholar recently discussed his views. Excerpts:

What is a "living" Constitution?

A living Constitution is one that evolves or changes over time. The big risk is that if you just think about it that way, you'd want to ask the questions: Who's in charge of making the changes? How do we keep the Constitution from becoming just a plaything in that person's hands?

Who would be making the changes?

The evolution of the Constitution is in the hands of a lot of people. It's in the hands of judges, justices, elected politicians and, in some ways, it's in the hands of the American people. The key is that, in the system we have, the Constitution doesn't just change because someone wants it to change. It changes because our traditions and our precedents are evolving.

Why is it a bad idea to think of the Constitution as not open to an evolving interpretation?

First, it's very hard to figure out, on a lot of issues, what they were thinking back in the 18th and 19th centuries when our most important constitutional provisions were passed. The second reason is: Even if we knew what they thought back then, all we would know is what they thought about their society. We'd be reduced to speculating about what the framers would think in a world of telecommunications and air travel and the Internet.

How has the digital information age changed Constitutional law?

The digital age has changed things. Before then, the age of mass transit and mass communication changed things. And before then, the existence of a transcontinental nation with a nationwide economy changed things. I think the single biggest change you see is in the role of the federal government.

What do you mean?

The original thinking about the federal government was that it should be a small institution that did a few tasks: national defense, set up a post office, and a few other things. Over time, without the Constitution ever being formally amended, we have come not just to accept but really to insist upon a much more powerful federal government to address the needs of a society that is so different from the society that existed 200-plus years ago.

To what extent is "judicial activism" a problem?

Judicial activism usually is just a term people use for a decision they don't like. But I do think that when people see the choice about the Constitution as being between either "It's what the framers wanted" or "It's just up for grabs," then there is a temptation for judges to do more than what they should do. We realize that the system works best when it's anchored in and evolves from traditions and precedents. That limits what judges can do but without locking us in straitjackets.

You argue that Roe v. Wade would be indefensible under an originalist view of the Constitution, but it would be defensible within the framework of a living Constitution. What do you mean by that?

I think Roe v. Wade would be indefensible under an originalist view, but I also think Brown v. Board of Education would be wrong under that view.

Why?

It is actually pretty clear that when the 14th Amendment was adopted -- which is the amendment the court relies on in that case -- they didn't mean to make school segregation unconstitutional. In fact, the spectator galleries of the Senate that debated the amendment were segregated by race. So it's very hard to say that they had a problem with racial segregation.

What do you make of Kentucky GOP Senate candidate Rand Paul's issues with aspects of the Civil Rights Act?

To the extent that he is couching that in constitutional terms, I think that actually reflects the difficulties of originalism: The understanding of the part of the Constitution that the Supreme Court relies on for the Civil Rights Act is not the understanding that they had in 1787. When they drafted the Constitution, they probably didn't envision a federal government that could outlaw private racial discrimination.

What surprised you in writing this book?

What surprised me is how much of our constitutional law has been the result of trial and error -- what works and what doesn't. What are the lessons of the past? Slavery was a mistake, segregation was a mistake. And a lot of our constitutional law is a result of saying, "We've made some mistakes; let's learn from them."

How do you think this book will surprise readers?

Readers might be surprised by how many of the things that we take to be the heart and soul of our Constitution are either not clearly in the text or were not thought to be very important when the Constitution was drafted. When we think of the Constitution today, we think of things like robust freedom of speech or that you can't discriminate on the basis of race or sex. But it's very hard to find those in the text of the Constitution, and there's evidence that the people who adopted it did not think they were enshrining those principles.

What lessons can conservative justices like Scalia or Thomas take from this book?

I don't think this approach -- that the Constitution is a matter of evolving precedents and traditions -- is conservative or liberal. I think it actually describes what judges on both sides of the political spectrum actually do.

What ramifications does a living Constitution have for combating terrorism?

At this point, it is very hard to know. Some of them might be lessons that we need more government power, and some of them might be lessons that we need more checks on the government. I think that's going to be a real task not just for the courts, but for the government and really every citizen to figure out over the next decade or so. But the way to figure it out is the way we figured out other problems, which is to say what works and what mistakes have we made, rather than try to ask the question: What would the people who sat in Philadelphia in 1787 have wanted to do about al Qaeda? That is not a very useful question to ask.

Available at Amazon.com:

The Living Constitution

What Is Happening to News: The Information Explosion and the Crisis in Journalism

The Virtues of Mendacity: On Lying in Politics

Bush on the Home Front: Domestic Policy Triumphs and Setbacks

The Political Fix: Changing the Game of American Democracy, from the Grassroots to the White House

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Why Supreme Court 'Originalists' Are Wrong About Constitution