Essay On Living Constitutionalism

There are two main types of judicial interpretation used by judges: originalist and evolutionist (also known as living Constitutionalists. The interpretation method used by each judge is critical as it shapes his or her understanding and determination of law.
Judges that used originalist interpretation judge cases by what they think that the Founding Fathers intended at the time the Constitution was drafted. This means that not only do they look to the Constitution for answers, but also sources like the Federalist papers, letters written by the Founding Fathers, and even Senate history notes when it comes to cases dealing with the Amendments. This form allows an interpretation to be as true to the Constitution as possible. Justice Scalia is an example of an originalist. There are some dangers to originalism. One being that the Founding Fathers were unable to forsee the advancements of modern technology. If one examines the second amendment, Madison expected it to protect the citizenry from an overbearing government. But does that mean that individual citizens should be able to own and maintain nuclear weapons? Most people would argue no, however an originalist could easily argue yes. Secondly, it is difficult to be an orignialist because it
is uncertain which Foudning Father one bases their decisions off of. The Founding Fathers did not think collectively. They each had different views on the matters they wrote about. Jefferson, for example, was quite radical. An originalist basing their decisions on Jefferson’s writings can reach a starkly different conclusion than an originalist basing their decisions on Madison’s writing. Textualists are a prominent subcategory of the originalism category. This is the most rigid system of interpretation. They look strictly at the text of the Constitution and nothing else. For example, in the Katz v United States (389 U.S. 347), was a case determining the whether wiretapping a public phone booth without a warrant consisted of an unreasonable search. The case was decided 7-1, that yes, this was an unreasonable search because, as Chief Justice Potter Stewart wrote, “the Fourth Amendment protects people, not places”.
However, in his dissenting opinion, Justice Black believed that phone tapping could not be defined as a search under the Fourth Amendment because the Founding Fathers could not have forseen technology such as phone booths. This is because Black is shaped by his philosophical belief in textualism. The specific text of the Constitution says nothing about phone booths or wiretapping, therefore Black believes that Fourth Amendment rights do not extend to this area. Thus, textualism does not adapt to modern circumstances and can cheat individuals out of their rights. On the other hand, evolutionists or living constitutionalists believe that the Constitution is a living document and it evolves or adapts to fit modern society.
Justice Brennan and Stevens are examples of Living Constitutionalists. Living Constitutionalists are responsible for the evolution of rights. For example, this mentality can be seen in the matter of right to privacy regarding sex and abortion. Throughout the course of several cases (such as Griswold v Connecticut and Roe v Wade), those using the evolutionist philosophy expanding the meaning of the 9th Amendment to cover the privacy of those who wish to use birth control or abortion by severely limiting states’ ability to regulate these two
areas. While this has been great in expanding the rights of citizens, the biggest criticism of this mentality is in the debate over who gets to decide this expansion of rights. Most often, it has been the Supreme Court that decided these extra rights. Originalists often ask if the Founding Fathers intended a non-elected branch to determine the “extra rights” of citizens.