Elements of Constitutional Law: Conclusion

Conclusion

Here comes the end of a lengthy analysis of American constitutional law viewed by an educated foreigner. It was stated in the introduction that the Constitution of the United States is a legal document. The debate between jurists and legal scholars of contemporary America is bounded by the interpretation of the Constitution. How can an educated and reasonable individual interpret the words of the Constitution? This fundamental interrogation created what we now know as Constitutional Law. This simple question also generated two factions in the philosophical approach to the Constitution. These two factions are the originalist, textualists and the evolutionary theorists known as the Living Constitution theorists.

Their [Originalist v. Evolutionary] philosophical antagonism valued the importance of constitutional law in the United States and determined the preponderancy of the Supreme Court. In the strict literary meaning of the word, originalism stands for the principle or belief that the original intent of an author should be adhered to in later interpretations of a work. Per contra, the literary meaning of evolutionary describes the gradual development of an element or a substance. These two words [originalism and evolutionary] play a central role in American jurisprudence. In legal terms, originalism is a way to interpret the Constitution’s meaning as stable from the time of its enactment, which can be changed only by the steps elaborated in Article 5[1]. Supreme Court Justices Antonin Scalia, Clarence Thomas, William H. Rehnquist, Neil Gorsuch, Court of Appeals Judge Robert Bork and Law Professor from Yale Law School, Akhil Reed Amar, are the most prominent disciples the originalism theory. The legal theory of originalism is structured on two alternative theories: original intent and original meaning. In common law traditions, the purpose of interpreting any document is to establish the determination of the document’s intent[2]. Political and legal scholars in Great Britain and the American colonies viewed strict judicial adherence to the legislature’s language as a constitutional necessity, because the “known, fixed laws” could be properly established or altered only by “the whole legislature”, in which spoke only through enactments[3]. The original intent in one hand, was ingrained in language in which laws were drafted by the legislation. The original meaning on the other hand, emphasized on substance of the literary meaning. Justice Scalia would use originalism and textualism as his life’s mindset when he drafted judicial opinions (mostly dissenting opinions).

The evolutionary theory known as the Living Constitution doctrine has been combating originalism through the twentieth century and still today. In cases such as Roe v. Wade or Obergefell v. Hodges, the living constitution theory has prevailed in the judicial battleground. The living constitution doctrine is observed as judicial pragmatism because its interpretation of the Constitution accommodates itself with the reality and the circumstances of the case. Proponents of the living constitution assert that the constitutional Framers were certainly aware of those debates, they also would have known the confusion that not providing a clear interpretative methods would cause[4]. One judge who perfectly summarized judicial pragmatism was Justice William J. Brennan, Jr. He declared: “We current Justices read the Constitution in the only way we can. As Twentieth Century Americans. We look to the history to the time of framing and the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time. for the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be measure to the vision of their time.”[5]

Our observation of these two antagonistic legal theories [originalism and evolutionary theory] allows us to apprehend future judicial interpretations of the Constitution. Even though the Supreme Court is currently [2018] dominated by the conservative wing, it would be more and more difficult to strictly uphold the originalist interpretation to twenty first century law cases. The law has been created to commensurate human’s needs. Thus, with the pace and mentality at which the American society is presently evolving, it will be increasingly hard to apply the originalist jurisprudence in the upcoming twenty first century cases that the Supreme Court will have to decide on. Since the dawn of his presidency in 2017, President Donald J. Trump has appointed many right-wing conservative federal judges on the U.S. Court of Appeals. These life-tenured judges will once again shape American jurisprudence and subsequently impact the elements of American constitutional law.  

[1] Wikipedia Contributors. Originalism. Wikipedia, the Free Encyclopedia, Mar 13, 2018. https://en.wikipedia.org/wiki/orginialism

[2] Powell, Jefferson H. The Original Understanding of the Original Intent. Vol.98, Number 5.Harvard Law Review. March 1985. https://scholarship.law.duke.edu/cgi/viewcontent. Article. Web

[3] Powell, Jefferson H. The Original Understanding of the Original Intent. Vol.98, Number 5.Harvard Law Review. March 1985. https://scholarship.law.duke.edu/cgi/viewcontent. Article. Web

[4] Wikipedia Contributors.  Living Constitution. Wikipedia, the Free Encyclopedia, Mar. 13, 2018. https://en.wikipedia.org/wiki/living_constitution. Article. Web.

[5] Murphy, Bruce Allen. Scalia: A Court of One. P.147. Simon & Schuster, 2014. Book. Print.