In 1803, Chief Justice John Marshall declared that “it is emphatically the province and duty of the judicial department to say what the law is.” Immediately after this lofty assertion, Marshall posed a question that still plagues the legal academy and the field of American constitutional law. He asked, “Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it rises?” At the time, what is known today as “originalism” was orthodoxy, and Marshall answered “no”. However, a vibrant debate has since persisted in the discussion of the Constitution’s impact and meaning. In one camp, the originalists, like former Attorney General Edwin Meese and the late Justice Antonin Scalia, believe that the primary guidepost in legal interpretation should be the original text of the United States Constitution. In the other, scholars such as Professor Eric J. Segall and Justice William Brennan, Jr. believe that the text of the Constitution must be flexible enough to accommodate changing views and contemporary circumstances. This is commonly referred to as the “activist” school of interpretation. With the death of Justice Scalia in February of 2016, the Supreme Court lost a staunch originalist and became evenly divided on the subject, making this perennial question even more timely. After reviewing both sides of the debate, it will become clear that a common law approach is the only viable method for interpreting the great issues that consume American courts.
The originalist view is rooted in the text of the Constitution. As Edwin Meese explains, “Our approach to constitutional interpretation begins with the document itself.” Meese and other originalists go to great lengths to tie the Constitution to the lore of American inception, arguing that America is truly a young country, one where the thoughts and ideas of the Founders, expressed in writing, are tangible. Meese discusses how the founders chose their words carefully, argued each clause very specifically, and submitted the final product to state conventions for even further study and approval. As he argues, the Constitution’s text must inform how the document is interpreted and applied. Otherwise, the Framers would not have included words and clauses in the particular places that they did. Justice Scalia echoes this sentiment strongly: “I do believe…that you give the text the meaning it had when it was adopted.” Scalia, in his 2005 lecture at the Woodrow Wilson Center, outlined various instances in which the Supreme Court has made decisions of great consequence that have deviated entirely from the text of the Constitution itself. Scalia said those decisions are exemplary of the “living constitution” approach, using another term to describe the activist view. He outlines the development of the living constitution, beginning with false attribution of meaning to terms in the Constitution which led to the development of substantive due process and elimination of limitations imposed thereon by the Court. Both Meese and Scalia support their arguments with a reference to Chief Justice Marshall in McCulloch v. Maryland, where Marshall argues that “the Constitution [was] intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs.” Marshall meant, in the originalist view, that the Constitution was constructed in order to serve as a perpetual guidepost for future judicial doctrine.
Scalia and Meese both make thorough arguments that add nuance to the originalist theory. Deeper than simply adhering to the text, the originalist idea points out that there are ways to update and adapt the Constitution that are included in the document’s framework. In particular, Article V of the Constitution outlines amendment procedures. Justice Scalia recounts how women campaigned for decades to earn the right to vote and eventually drove Congress to write and pass a constitutional amendment. However, he posits that if the women’s suffrage movement occurred in today’s constitutional climate, pro-women’s rights groups would sponsor a law suit, ultimately putting the burden in the hands of the Justices rather than the popularly elected Congress. Scalia’s frustration comes in this presumption that the Justices have the moral authority to interpret the direction of society. He questions why “if you think [the Constitution] is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society…then why in the world would you have it interpreted by nine lawyers?” This frustration is not unfounded. Indeed, the idea of nine lawyers with similar educational backgrounds interpreting the moral direction of the entire nation is disarming. Meese offers an originalist answer to this problem by arguing that originalist interpretation is “neither conservative nor liberal…it is a jurisprudence faithful to our Constitution.” In other words, Meese and Scalia’s originalism would take partisanship out of the constitutional equation. The argument for originalism is attractive because it plays to America’s reverence for the Founding Fathers, but in many ways, Justice Scalia’s frustration is equally applicable to the Founders. If a panel of nine jurists cannot know contemporary American values, a room full of wealthy eighteenth-century leaders cannot do so any more effectively.
The so-called activist view is predicated upon the belief that the framers of the Constitution could not anticipate developments in American values. Justice William J. Brennan, Jr. defined activism in terms of a response to originalism, claiming that “those who would restrict the claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaption of overarching principles to change of social circumstances.” Brennan outlines his relationship with the Constitution as “public, obligatory, and consequentialist.” He elaborates that the Constitution is a public document, he is obliged in his role as an Associate Justice of the Supreme Court to adhere to it in the decisions he makes, and the decisions he makes have consequences for the general public. Brennan argues that because of these characteristics, the Justices must make “substantive value choices” in reaching their decisions.
Eric Segall further defines activism in terms of the judicial philosophy of Judge Richard Posner, who favors a common-sense interpretation of the Constitution. Judge Posner seeks out logical solutions and then determines if any Supreme Court doctrines prevent him from implementing whatever solution he finds. Posner, as Segall recounts, articulates the most extreme incarnation of activist interpretation, that judges should veer away from the text entirely if the text does not have any relevance to the contemporary problem. He cites the same examples that Justice Scalia uses to support the originalist argument in order to argue that without activism, certain “nontextual rights,” liberties and freedoms protected by jurisprudence and not explicitly by the Constitution, would not exist. Ultimately, Segall concludes that it is the Supreme Court’s interpretation that matters.
While Judge Posner’s complete disregard for the text of the Constitution seems radical prima facie, it is grounded in the realities of modern jurisprudence. Justice Brennan, Segall, and Judge Posner all make thorough arguments for this point. The activists are accurate in asserting that the Constitution is a plan for government and not an embodiment of fundamental substantive values. According to the activists, a legitimate interpretation of the Constitution is one that accounts for contemporary values. Justice Brennan makes a convincing argument in explaining his approach to the work of a Justice, that interpretation of the text “must account for the existence of…substantive value choices, and must accept the ambiguity inherent in the effort to apply them to modern circumstances.” Justice Brennan and Segall argue that activism does a better job than originalism of applying contemporary values to constitutional law. Judge Posner also discusses how “justices care much less about constructing constitutional rules according to the written Constitution and its history than overtly balancing contemporary costs and benefits examining prior cases." Ultimately, jurists have an obligation to decide cases, and they should realize that the practical decisions they come to will dictate constitutional principles. Originalists believe that this arrangement must be reversed, instead advocating for the text of the Constitution to dictate the practical decisions delivered to the public. The activists would say that this is counterintuitive to the realities of the judiciary. While Segall, Justice Brennan, and Judge Posner may take some radical positions, their assertion that “neither text nor history plays an important role” in interpretation is not grounded in practicality. The Framers knew that they could not conceive of how the twenty-first century judiciary would operate, evidenced by their omission of instructions for interpretation. Clearly, they anticipated some measure of deviation in the future.
Neither originalism nor activism presents an ideal framework for practicing constitutional law. Originalism is too rigid to allow for adaptation to modern principles, while activism calls for a jarring departure from the original text. Ultimately, however, originalism is unworkable because it lacks the flexibility necessary to allow the law to reflect modern values. Qualified activism is the best approach, and David Strauss outlines this approach in vivid detail. Strauss argues that qualified activism is already in place within our constitutional system in the form of the common law approach. He writes that “in most litigated cases, constitutional law resembles the common law much more closely than it resembles a text-based system.” In other words, constitutional litigation generally does not pay much attention to the text, instead relying upon precedent in decision-making. Strauss cites an impressive body of American jurisprudence to make his point that the judicial system already applies a common law approach and that this approach is a reasonable, activist-leaning method of interpreting the Constitution. Moreover, a common law approach can produce both liberal and conservative decisions.
The common law approach is applied throughout Supreme Court precedent in decisions across the ideological spectrum, affirming the approach’s versatility. In Obergefell v. Hodges, the Court’s decision which affirmed a constitutional right to same-sex marriage, the majority and dissenting opinions depend on “precedent, tradition, and general principles derived from those sources.” In his dissent, Chief Justice Roberts notes how the opinion of the majority is based on “nothing more than the majority’s own conviction that same-sex couples should be allowed to marry,” but his own dissent does not mention any specific provisions of the Constitution. Ironically, in his opinion, Justice Kennedy notes how the First Amendment recognizes that religious groups and individuals still can oppose same-sex marriage for personal reasons:
"The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons."
Conversely, liberal decisions can and do apply originalism. However, even conservative cases can merely use the text as a baseline. District of Columbia v. Heller, the Court’s “gun control” decision, begins with a cursory examination of the Second Amendment and its history before transitioning to precedent-based arguments. Strauss explains that “the Court gave no explanation for how [exceptions to Second Amendment fundamentalism] fit within the ‘meaning of the Second Amendment’ that it had so painstakingly analyzed.” The doctrine of administrative law known as “Chevron deference” provides a good analogy for framing the question of when the Constitution should be applied, regardless of whether or not the overall effect of the opinion is liberal or conservative. In Chevron deference, “if the statute is clear, the agency must comply; if the statute is vague, a reasonable agency interpretation will be accepted by the courts.” Under a common law approach, if the Constitution is specific, it can be applied directly, but if not, a precedential interpretation is equally valid.
The common law approach has already permitted progressive developments throughout recent history, evidencing how jurisprudence is fundamentally rooted in precedent. For instance, the First Amendment literally says that “Congress shall make no law…” If read literally, this would mean that the Executive and Judicial branches can infringe upon freedom of speech at will. However, in New York Times v. United States, the Pentagon Papers case, the President sought an injunction under Article II. A fundamentalist would have awarded the injunction because Article II does not stop the President from prohibiting the freedom of speech. Applying common law to New York Times produced a victory for freedom of speech advocates by ignoring the first word of the First Amendment and discerning the “fundamental law embodied in the First Amendment.” Federal criminal law provides another example of where strict originalism would produce a result inconsistent with modern reality. Under the doctrine of expressio unius est exclusivo alterius, the entire Federal Criminal Code would be unconstitutional because the Constitution only lists specific crimes. This is, naturally, ridiculous, but without the common law approach, such a ruling could have been reality.
The Court’s Equal Protection jurisprudence is another area which has eschewed the original text of the Constitution, or as Strauss writes, “it’s hard to see how the words of the [Fifth Amendment] could be stretched to mean what they mean today.” The Fifth Amendment does not refer to “Equal Protection” of the laws, merely that the federal government shall not deny liberty, etc., without “due process of law.” Therefore, finding the concept of “Equal Protection” in the Fifth Amendment requires interpretation. That is, a judicially created doctrine emerges. Since Bolling v. Sharpe, the doctrine has been regularly invoked to prevent the Federal Government from infringing upon individual rights. Undoing all of the cases decided with the Bolling doctrine as precedent would undermine decades of American progress. According to Strauss, “the principles that have evolved over time, and are attributable to precedent and policy, are so deeply a part of constitutional law that we unreflectively think of the text as saying things that actually were established by precedent, not the text.” There must be room to grow within the constitutional system, and a common law approach permits this growth.
Neither originalism nor rigid activism provide ideal criterion for Constitutional interpretation. The latter neglects the progress that was inherent to the vision of the Framers, but the former includes room to grow. Segall points out that “by using so many vague and open-ended words and phrases and not providing any rules of interpretation in the document itself, it is likely that the Framers knew and wanted judges to look forward and not backward.” Clearly, the Framers wanted to allow for the Constitution to be applied in a manner that became appropriate over time. Strauss proposes three factors to consider when deciding how to best uphold this interest: sovereignty acknowledges the “interest in having some institution that can intervene and change things,” adaptation recognizes that “there will have to be a mechanism to adjust to changes in the world,” and settlement accounts for the fact that there are “norms that favor leaving existing arrangements intact.” By prioritizing these factors, the Constitutional system can allow strict rules to remain strict rules while leaving room for new interpretations to be developed. This is the essence of the common law approach. Justice Scalia and Meese would be pleased to know that democratic society calls for a measure of originalism. However, Justice Brennan, Segall, and Judge Posner also will note that activism allows for reconciliation between the text and modern values. After all, “it is emphatically the duty of the judicial department to say what the law is”; the duty does not exclusively fall to the Constitution. Marshall’s question can be answered in the affirmative. In order to apply the law effectively in the twenty-first century, the Constitution must be flexibly, but sensibly interpreted, in a way that pays homage to original intent but acknowledges the realities of changing, growing society. If the Framers wanted otherwise, they would have said so.