Series I: The Supreme Court and the Shaping of America

Because of their ages, the present Supreme Court will shape the life of the nation for the next twenty plus years unless something happens to reform its make-up and member selection.  This is the first in a series of two on the background to this shaping.

THE UNITED STATES CONSTITUTION: DEAD OR ALIVE?

(Legal Archaeologists versus Legal Evolutionists)

All present-day Supreme Court Justices will fall somewhere on a continuum between two polarities of constitutional interpretation.  It is these two polarities that vie for dominance of court decisions and the shaping the nation’s present and future.

These postures also tend to be reflected in the views of the two major political parties that control the nation’s government.  They are Originalism and Living Constitutionalism. Metaphorically, these two schools are housed by legal archaeologists, anchored in the past, versus legal evolutionists, anchored in the present.

Definitions:

Originalists – believe the constitution should be interpreted from the perspective of the originating authors.  Some call this textualism which means their words should be interpreted from the perspective of the original historical context. In literature, this is called historical and literary criticism. This is the means used by all legitimate scholars who interpret historical texts whether it be of Shakespeare, Greek mythology, the Bible, or any other such document.

Irrespective of the issues involved, the originalists believe this view should prevail until a constitutional amendment is adopted that calls for a different interpretation. This is where Originalists forsake the fundamental purpose of historical and literary criticism which is to determine how past meaning would translate into today’s language and make a social application.  The Originalist justice refuses this responsibility by relying on the states to create any constitutional amendment that makes the translation and application.  For them, the constitution is a dead document until resurrected by an amendment.

Living Constitutionalists – believe the constitution should be interpreted from the standpoint of its originators and applied to match the needs and views of the current citizenry.  As social perspectives evolve so should the constitution be translated.  This fully embraces not only the method of historical and literary criticism but also its purpose of currency of social application. The constitutional amendment process anticipated this change might sometimes need to become permanent – thus, further endorsing the value of interpretive currency. So, just as our forefathers created a constitution of anticipation, justices should approach it in the same manner – as a living document to be translated into social necessity.

Similarity

Both approaches believe the beginning point of interpretation should be an understanding of the constitution from the perspective of historical and literary criticism – discovering the original meaning of the text to whatever extent possible.

Differences

Here are three critical differences:

• Originalists are conservatives committed to conserving, reproducing, and sustaining the past into the future.  Living Constitutionalists are liberals committed to evolving, producing, and sustaining a new future out of the past.
• Originalists believe the present should be bent to accord with the past while the Living Constitutionalists believe the past should be bent to accord with the present.
• Originalists are not open to the new until forced to engage such with reluctance while Living Constitutionalists are embracing of the new if it opens to more ennobling democratic possibilities.

Both originalists and Living Constitutionalists can be what they are to any degree – from mild conformity to extreme fundamentalism.

A summary of the difference is that the originalist thrives on the same past and seeks its present conservation while the Living Constitutionalists thrives on a new future and seeks its present application. They pull in opposite directions.

Democracy and Fortune

The function of the court is to keep the nation on track with its democratic goals.  But how well this is done depends on how committed the justices are to the tenets of democracy over personal or political devotions.  And where they stand in this respect usually depends on those who are their selectors.

Here is the problem with how the Supreme Court is constituted: Their member selection and confirmation is purely political and maybe in radical conflict with the social posture of the majority of the citizenry.  And this is the result of the historical happenchance of when a justice resigns or dies.  Thus, the nation’s destiny generally rides on a historical fluke.  The history of the Supreme Court’s interpretations is the history of a pendulum swing of fortune between the retardation and progress of democratic tenet.

A Partial Solution

The solution to this problem is not an increase in the court’s seats to accommodate a balance between these two perspectives.  There would be no end to this process and the court would soon become too numerically unwieldy to function.  There may be no ultimate solution since human attitudes and actions will always reflect the bias of their specific view of reality.  However, one partial solution is an amendment that would place a limit on the number of years a justice can serve, thus, diminishing the length of court dominance of either interpretational perspective.

The only ultimate solution would be for these justices to be committed to the three tenets of democracy over their personal political postures.  But this has not shown itself to be viable in American politics.

Conclusions

Here are a few conclusions:

• The founding fathers were primarily Living Constitutionalists and intended those who followed to be the same. They knew they were not designing the last word.  So, they built into the constitution the implied necessity and means for its constant needed changes to accord with the evolution of human thinking and relating. However, there were only thirteen original states when this methodology was devised. The negative possibility which requires two-thirds of both houses to recommend and three-quarters of 50 states to amend is considerable compared to that same possibility of 13 states.
• Originalists are all conservatives who wish to make the present into the past by honoring the necessity of textualism in interpreting the constitution while, oxymoronically, rejecting the reason for the interpretation.  This erases the logic of their position.  They reject both human evolution and democratic social progress.
• Originalists are, howsoever unwitting, the advocates of democracy’s   regressive diminishment into despotic suicide.
• The destiny of America as a democracy may well depend on critical interpretations made by the court over the next two years.

In a letter to Samuel Kercheval in 1816 in response to a query about whether or not the Virginia state constitution should be revised, Thomas Jefferson suggests that constitutions are not sacrosanct and laws and institutions should keep up with human progress and adapt accordingly.  The metaphor he uses is that a man should not be required to wear the coat he wore as a boy (create your own visual). His conclusion was that without such revisions civilization remains barbaric.  He viewed constitutions as living documents that should be interpreted to accommodate current social perspective.

Robert

Robert T. Latham

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