20.6.2 Living Constitution ideology as against originalism.

Living Constitution Ideology

Definition

Key Features

• Adaptability: Supports the notion that the Constitution must adapt to address current societal issues and norms that were beyond the framers' imagination. The goal is to ensure that constitutional protections and principles remain applicable to modern contexts.
• Judicial Activism: Encourages an active role for the judiciary in shaping and advancing public policy to reflect current values and rights. This often involves interpreting the Constitution in a way that addresses contemporary concerns.

Examples

• 14th Amendment - Obergefell v. Hodges (2015): The Supreme Court legalized same-sex marriage by interpreting the 14th Amendment's Equal Protection Clause in light of evolving societal views on marriage and equality.
• Roe v. Wade (1973): Used a broad interpretation of the right to privacy under the 14th Amendment to establish a woman's right to choose an abortion, reflecting changing attitudes towards women's rights.
• First Amendment - Riley v. California (2014): Ruled that warrantless searches of digital information on cell phones during an arrest violate the Fourth Amendment, demonstrating the adaptation of constitutional protections to modern technology.

Criticisms

• Judicial Overreach: Critics argue that this approach can lead to judges imposing their personal or political views, effectively creating new rights or policies rather than interpreting the law as written.
• Lack of Stability: Frequent reinterpretations can create legal instability, making it challenging for citizens and lawmakers to understand and predict the law.
• Undermining Democratic Processes: Some believe it undermines democratic processes by allowing unelected judges to make significant policy decisions that should be made by elected representatives.

Originalism

Definition

Key Features

• Fixed Meaning: Emphasizes interpreting the Constitution based on its text and the historical context in which it was drafted, aiming to preserve the original intent and meaning of the document.
• Judicial Restraint: Advocates for a limited role for the judiciary, suggesting that judges should defer to the legislative and executive branches unless there is a clear constitutional violation.

Examples

• First Amendment - Citizens United v. FEC (2010): Ruled that restrictions on corporate funding of independent political broadcasts violate free speech rights under the First Amendment, based on an originalist interpretation.
• 14th Amendment - Dobbs v. Jackson Women's Health Organization (2022): Overturned Roe v. Wade by interpreting the Constitution as not conferring a right to abortion, returning the issue to state regulation.
• Clarence Thomas as an Example: Justice Clarence Thomas is known for his originalist approach, consistently interpreting the Constitution according to its historical context and the framers' intent.

Criticisms

• Inflexibility: Critics argue that Originalism is too rigid and may fail to address modern issues that were not anticipated by the framers.
• Historical Limitations: This approach may rely too heavily on historical interpretations that do not necessarily reflect contemporary societal needs and challenges.
• Potential for Discrimination: Originalism may uphold outdated practices and interpretations that do not consider the expanded understanding of rights and equality in the modern era.

Comparative Analysis

Flexibility vs. Stability

The Living Constitution approach offers flexibility, allowing the law to adapt to societal changes, but it can lead to instability and unpredictability in legal interpretations. In contrast, Originalism provides stability by maintaining a consistent interpretation, but it may be too rigid to effectively address contemporary issues.

Role of the Judiciary

The Living Constitution ideology promotes an active judicial role in shaping policy and adapting the law to current values, while Originalism emphasizes judicial restraint and deferring to legislative and executive branches, focusing on the original text of the Constitution.

Impact on Society

Living Constitution rulings can lead to significant advancements in rights and protections for marginalized groups, such as the legalization of same-sex marriage. Originalist decisions often reflect a return to more constrained interpretations, as seen in the reversal of previous decisions like Roe v. Wade, potentially reversing earlier expansions of rights.