Contra Scalia, Thomas, and Gorsuch: Originalists Should Adopt A Living Constitution

Authors

R. Randall Kelso

Abstract

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living Constitution. Under such a model, later legislative, executive, or social practice, or judicial precedents, can change the meaning of a constitutional provision. Thus, while standard originalist supporters share the premise that the original meaning of constitutional text is fixed at the time each provision is framed and ratified, interpretation according to originalism actually does not commit the interpreter to a static or fixed interpretation of the Constitution. Instead, a true originalist form of interpretation can incorporate the principle that the provision was capable of evolution over time.

Recommended Citation

R. Randall Kelso, Contra Scalia, Thomas, and Gorsuch: Originalists Should Adopt A Living Constitution, 72 U. Mia. L. Rev. 112 (2017)
Available at: https://repository.law.miami.edu/umlr/vol72/iss1/5