The Illusory Moral Appeal of Living Constitutionalism

Two prominent theories of constitutional interpretation are originalism and living constitutionalism.1 One common argument for living constitutionalism over originalism is that living constitutionalism better avoids morally unjustifiable results. This Note will demonstrate that this argument is flawed because living constitutionalism lacks a definitive enough prescriptive claim as to how to interpret the United States Constitution.

Proponents of originalism assert that courts should interpret constitutional provisions in accordance with the public meaning of those provisions at the time of their enactment.2 One criticism of originalism is that if the Supreme Court were to faithfully apply the theory, such application leads morally unjustifiable outcomes.3 This criticism has two components: (1) had the Supreme Court subscribed to originalism as its interpretive method in the past, then certain outcomes, such as the banning of racial segregation in public schools in Brown v. Board of Education,4 would not have occurred;5 and (2) if the Supreme Court employs originalism in the future, the Court might issue rulings contrary to contemporary moral sensibilities.6 Moreover, some critics of originalism maintain that when confronted with this problem, proponents of originalism deny that its application would lead to those outcomes and stretch the theory’s meaning beyond its capacity for any meaningful constraint on interpretation,7 or, alternatively, they admit that they would find the morally objectionable practice unconstitutional, even if such holding would be inconsistent with the originalist method.8 Thus, the claim is that originalists are “faint-hearted;”9 that is, they either tailor the definition of originalism to conform to morally required decisions or abandon originalism when it is too much to bear.10 This, critics of originalism assert, indicates that originalism is not viable as a constitutional method and should be abandoned, some argue, in favor of living constitutionalism.11

This Note will demonstrate the flaws in the above argument. The argument is flawed, not because it can necessarily be proven that originalism leads to more morally justifiable results than living constitutionalism, but because living constitutionalism lacks a definitive prescriptive claim to make such a comparison between the two theories possible. That is, it is impossible to identify past or hypothetical future outcomes of cases as being consistent or inconsistent with living constitutionalism. Moreover, because it is possible to do so with originalism, and thus, posit how implementing originalism could lead to morally undesirable results, living constitutionalism has an illusory moral superiority over originalism.


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