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 | As living documents: The document's meaning is continually evolving to meet changing cultural beliefs, practices, and knowledge. This has been the position of most of the justices of the U.S. Supreme Court in recent decades. It is also the viewpoint used by the Supreme Court of Canada and similar high courts of many other western countries. Justice Scalia attacked what he called this "conventional fallacy" in which the meaning of the constitution is interpreted: "...from age to age [as] whatever the society (or perhaps the Court) thinks it ought to mean." 1 A Focus on the Family news report in 2006-FEB said that Justice Scalia: |
"...sharply criticized those who say the U.S. Constitution should be interpreted as a 'living document' — one that should change with the times. According to the Associated Press, Scalia told a gathering of the Federalist Society ... 'you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document,' he said. 'It says something and doesn‘t say other things'."
One example of the living document philosophy is found In Trop v. Dulles (1958). The U.S. Supreme Court court discussed the evolution over time of the meaning of the "cruel and unusual punishment" clause in the U.S. Constitution's Eighth Amendment. The Court had earlier recognized that: "the words of the Amendment are not precise...and that their...scope is not static.. They stated in Trop v. Dulles that "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
In recent years, some Justices of the U.S. Supreme Court have gone outside American society and have incorporated references to cultural developments in other Western countries in their rulings. 2 In 2002,, the U.S. Supreme Court ruled in Atkins v. Virginia that the execution of mentally retarded murderers is cruel and unusual punishment and is thus unconstitutional under the Eight Amendment to the U.S. Constitution. Amnesty International commented:
"The Atkins ruling overturned a 1989 decision, Penry v. Lynaugh, by finding that 'standards of decency' in the USA had evolved in the intervening years to the point at which a 'national consensus' had emerged against such executions – primarily reflected in state-level legislation banning the execution of the mentally retarded. From an international human rights perspective, an encouraging footnote attached to the Atkins opinion acknowledged that 'within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved'." 10
| As an enduring document: Justice Scalia, and other conservative
Justices on the Supreme Court, agree with this position. They are often referred to as strict
constructionists or originalists. They interpret a legal document as meaning
"today not what current society (much less the Court) thinks it ought to
mean, but what it meant when it was adopted."
3 Viewing the Bill of Rights and the rest of the U.S.
Constitution as an enduring document means that the justices consider the
society's values and the authors' intent during the era in which the text was
actually written. When the original U.S. Constitution was written:
On matters such as abortion access, the death penalty, equal rights for gays and lesbians, and other "hot" topics, there has been considerable change during the intervening centuries. But today's understanding and is immaterial when it comes to interpretation of the Constitution as an enduring document. Bruce Hausknecht, spokesperson for the Fundamentalist Christian group for
Focus on the Family |
"We are looking for a nominee who will uphold the Constitution as it is written, an originalist who looks at the text of the Constitution and interprets it in accordance with the original meaning given to it. What that means in today's terms is a judge who doesn't add to or subtract from the Constitution based on what he or she thinks is necessary for society today. The Constitution doesn't 'evolve.' " 4
Implications of strict constructionism:
The Free Lance-Star newspaper in Fredericksburg, VA, comments that one of the problems of interpreting the Constitution as an enduring document is
"...discerning the original intention of historical documents, especially one agreed to by a large body of politicians long dead...After all, not everyone who first read the Constitution or had a hand in its writing had exactly the same thing in mind. Diversity of opinion is not a 21st-century invention. Disagreement and compromise were alive and well in the 18th century." 5
The U.S. Constitution does not specifically discuss the concepts of
| Personal privacy, |
| Sexual orientation, |
| Separation of church and state, |
| Abortion access, |
| etc. |
Thus strict constructionists consider the constitution to be neutral on these and similar topics. If a majority of Supreme Court justices followed this philosophy, the court might declare numerous state and federal laws to be constitutional which:
| Seriously intrude in its citizens' private lives, |
| Re-criminalize same-sex behavior, |
| Require students to recite Christian prayers in the public schools, |
| Criminalize all abortions, |
| Allow governments to criminalize what the majority -- or a well organized and vocal minority -- feels is immoral. |
| etc. |
American culture would take a major shift to the right.
The concept of strict constructionism is not necessarily applied consistently. For example, the second amendment to the U.S. Constitution says that: "... the right of the people to keep and bear arms, shall not be infringed." If the word "arms" were interpreted according to the standards of 1791 when the Bill of Rights was adopted, it would refer to "the flint lock musket ... the basic military weapon of the 18th century," and similar manually loaded weapons. 11 The Bill of Rights would not guarantee the right of adults to own or carry semi-automatic or automatic Uzis, AK-47s, 9 mm handguns or similar cartridge loaded weapons. I have a hunch that if a law restricting such weapons was reviewed by the Supreme Court, most or all of the strict constructionist judges would interpret the constitution as a living document that protects the right of citizens to own modern weapons.
Balance in the U.S. Supreme Court:
As of 2005-JUL, three justices of the Supreme Court, all of whom were appointed by Republican presidents, appeared to interpret the Constitution in this way. They have tended to vote as a conservative block on ethical and moral matters. They were Chief Justice William Rhenquist (appointed by President Nixon) and Justices Antonin Scalia (appointed by President Reagan) and Clarence Thomas (appointed by President George Bush).
As noted above, Justice O'Connor announced her resignation. Chief Justice Rhenquist, 80, died in 2005-SEP. This required President Bush to nominate two new justices. He selected two justices, both of whom are believed to be strict constructionists. Their confirmation by Congress has created a major shift in the delicate liberal/conservative balance of the court.
Recent impacts of the strict constructionist view:
Strict constructionists' method of interpreting the Constitution has influenced their majority or minority rulings in many key cases. For example, among cases involving abortion access:
| The 1992 case of Planned Parenthood v. Casey involved a Pennsylvania law that required a woman seeking an abortion to have given informed consent, to have waited for a 24 hour cooling-off period, to have the consent of one parent (if she was a minor), and to have informed her husband (if she were a married adult). Chief Justice Rehnquist joined Justices White, Thomas, and Scalia in a minority dissent in support of the PA law. They wrote, in part: "Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy. And the historical traditions of the American people - as evidenced by the English common...law and by the American abortion statutes in existence both at the time of the Fourteenth Amendment's adoption and Roe's issuance - do not support the view that the right to terminate one's pregnancy is 'fundamental'....The correct analysis is that set forth by the plurality opinion in Webster, supra: a woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but States may regulate abortion procedures in ways rationally related to a legitimate state interest. The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." 6 |
| The year 2000 case Stenberg v. Carhart struck down the
Nebraska partial-birth abortion ban. "Chief Justice Rehnquist and
Justices Scalia and Thomas once more urged that the issue of abortion be
returned to the states." 7
|
| Letting the "people of this country" decide should not to be interpreted literally as implying a pro-choice stance giving a woman the right to decide to have an abortion. The justices see no "fundamental right" in the constitution for women to choose to have an abortion. They appear to be stating that the state legislatures should decide when, and under what circumstances, the state should allow a woman and her physician decide whether to have an abortion. |
References used:
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- "Religion, Politics and the Death Penalty," Pew Forum on Religion & Public Life, 2002-JAN, at: http://www.pewtrusts.com/
- "Trop v. Dulles," U.S. Supreme Court, 1958-MAR-31, at: http://caselaw.lp.findlaw.com/
- Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
- Aaron Atwood, "President May Announce Supreme Court Nominee Shortly," Citizen Link, Focus on the Family, 2005-JUL-18.
- "Framers' 'intent' can be tricky stuff," The Free Lance-Star, Fredericksburg, VA, 2005-AUG-14, at: http://www.fredericksburg.com/
- Jerry Goldman et al., "Planned Parenthood v. Casey, 505 U.S. 833 (1992)." Text, abstract, etc. are online at: http://www.oyez.org/
- Paul Benjamin Linton, "How Not To Overturn Roe v. Wade," First Things 127, 2002-NOV, Pages 15 to 16.
- Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000) ." Text, abstract, etc. are online at: http://www.oyez.org/
- "Scalia Slams Idea of a 'Living Constitution'," Citizen Link, 2006-FEB-15, at: http://www.family.org/cforum/news/a0039543.cfm
- "The execution of mentally ill offenders," Amnesty International, at: http://web.amnesty.org/
- "18th Century Weapons in the Illinois country," George Rogers Clark National Historical Park, at: http://www.nps.gov/
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Copyright © 2003 to 2007 by Ontario Consultants on
Religious Tolerance
Latest update: 2007-MAY-18
Author: B.A. Robinson
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