The Ongoing Debate: Living Constitution vs. Originalism

The debate between 'living constitutionalism' and 'originalism' continues to shape American jurisprudence, with profound implications for how courts interpret the Constitution in addressing modern challenges.

Originalism, championed by the late Justice Antonin Scalia and current Justices Clarence Thomas and Neil Gorsuch, holds that the Constitution should be interpreted according to its original public meaning at the time of ratification. Adherents argue this approach constrains judicial discretion and preserves democratic governance by requiring constitutional changes to occur through the amendment process rather than judicial interpretation.

In contrast, proponents of living constitutionalism, including the late Justice Ruth Bader Ginsburg and current Justice Sonia Sotomayor, contend that the Constitution must be interpreted in light of evolving societal norms and conditions. They argue that the Framers intentionally used broad language to create a document that could adapt to changing circumstances without requiring formal amendment.

Recent Supreme Court decisions reflect this ongoing tension. In Bostock v. Clayton County (2020), Justice Gorsuch, despite his originalist philosophy, authored a majority opinion extending Title VII protections to LGBTQ+ employees based on a textualist reading of 'discrimination because of sex.' This decision prompted debate about the relationship between originalism and textualism.

Meanwhile, in cases involving the Second Amendment, such as New York State Rifle & Pistol Association v. Bruen (2022), the Court has embraced a more explicitly originalist approach, examining historical traditions of firearms regulation to determine the constitutionality of modern gun control measures.

Legal scholars continue to refine these interpretive theories. Some have proposed intermediate approaches, such as 'original methods originalism,' which looks to the interpretive methods used at the founding, or 'common-good constitutionalism,' which emphasizes the Constitution's role in promoting the common welfare.

As the Court confronts novel constitutional questions arising from technological change, economic globalization, and evolving social norms, the debate between these interpretive philosophies will remain central to American constitutional law.