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AN ANALYSIS OF ORIGINALIST AND LIVING DOCUMENT APPROACHES TO
CONSTITUTIONAL INTERPRETATION
Diana Sherrard-Nichols
Political Science Honors
May 13, 2015

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1. INTRODUCTION
"The Constitution is a written instrument and as such its meaning does not alter. That
which it meant when it was adopted, it means now." U.S. v. South Carolina (1905)
“The argument that original meaning should guide constitutional
interpretation is nearly as old as the Constitution itself. Before there were
strict constructionists, before there were judicial activists, there were
originalists. In those early days, few seriously objected to the notion that
the Constitution should be read in accord with its original meaning, though
there were plenty of debates over how best to ascertain that original
meaning and what exactly was required to be faithful to the Constitution of
the founding.”1
Constitutional interpretation is under the purview of the United States Supreme Court, the
judicial branch of the federal government. It involves an in-depth, scholarly analysis of selected
appellate case files in order to solemnly determine the appropriate application of Constitutional
Law to the case at hand. In order to evaluate the opposing theories of Constitutional
interpretation, it is necessary to place it in the context of the process of adjudication.
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1. Whittington, Keith E., and D.C. Washington. How to Read the Constitution: Self-government
and the Jurisprudence of Originalism. Washington, DC: Heritage Foundation, 2006.

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There is a singular directive in adjudication; to apply the process of legal reasoning in
order to arrive at the correct determination in each case. Legal reasoning is not amorphous; it
follows a defined process explicitly understood among legal professionals at all levels, from
paralegal to Justice. This process is known by the acronym IRAC, which stands for issue, rule,
analysis, and conclusion. The role of the bench at every level does not involve the drafting or
creation of legislation, but the reasoned application of legislation drafted by Congress or enacted
by Executive Order, to the case at hand.
First, the issue in question must be identified. Next, the rule of law which governs that
issue must be determined, located and minutely examined with significance placed on each word
of the drafted legislation as it was written. The facts of the immediate case are considered
meticulously, an analysis of how that very specific law applies to that very specific case is
undertaken. If a law is written in a vague manner, or in such a way that its meaning could be
construed two ways, than the court often turns to records of congressional discussion and debate
that took place as the legislation was being drafted in order to determine more definitively the
“legislative intent.” In other words, the effect the law makers intended for the law to have when
it was drafted. Finally, a conclusion is reached. In the lower courts the Bench is required to
follow mandatory authority which sets “precedent.”
Precedent is the conclusion reached by higher courts in the same jurisdiction, in cases
with similar fact patterns. If no precedent exists, than it is considered a case of “first impression.”
In the venue of a higher court, each Justice performs this process independently, and then they
discuss their conclusions. The decision of the court follows a vote, in which the majority
conclusion prevails. It is beyond the scope of judicial authority to conclude in contradiction to
legislation, unless other legislation supersedes it, as is the case with the Supremacy Clause of the

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U.S. Constitution. This is what gives the Supreme Court the power to strike down
unconstitutional laws.
Chief Justice John Marshall established the application of judicial review by the U.S.
Supreme Court, in the 1803 case of Marbury v. Madison.2 The case was centered on a political
action on the part of Federalist President John Adams when he was defeated by Democratic
Republican Thomas Jefferson, and the subsequent response to that action.
Prior to Jefferson’s inauguration Adams appointed 16 Judges and 42 Justices of the Peace
with the intention of disabling Jefferson’s policies using a judiciary system flooded with
Federalists. Adams ran out of time before Jefferson took office and not all of the commissions
were delivered. New Secretary of State James Madison refused to follow through with the
appointments and the documents of investiture were never delivered, and the newly named
adjudicators were not seated.
Marbury petitioned the Supreme Court for a writ of mandamus ordering Madison to
deliver the documents.
Justice Marshall declared a provision of the Judicial Act of 1801 unconstitutional because
it extended power to the Supreme Court beyond that granted by the Constitution. The Act
granted the Supreme Court the power to issue writs of mandamus to members of the other
branches of the government upon petition by warring factions within the government. He held
that any law which was repugnant to the dictates of the Constitution was “…no law at all.”2
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2. Marbury v. Madison (1803) 5U.S.137

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Though the Constitution does not expressly give the Judiciary Branch the power of
Constitutional Interpretation, the practice of judicial review was introduced in British Common
Law hundreds of years ago, well prior to the formulation of American court and any dispute
arising under law by its very definition falls under the adjudication of the court. 3
II. ANALYSIS
In contemporary America, Constitutional Interpretation has been under debate for several
decades, polarizing to two generalized perspectives with various versions within each faction.
Those perspectives can be broadly defined as Originalists and Living Document Theorists.
Having established the power of judicial review for the U.S. Supreme Court, the manner
of review practiced by early courts always followed the Constitution’s literal textual dictates as
closely as possible. The extraordinary number of cases which arise challenging Constitutionality
demonstrates that the literal meaning of the text is not always a certainty. Contemporary
adjudicators have introduced a concept to address those and other concerns, known as the
“Living Constitution” Theory. Supporters believe that it is necessary for the document to
“evolve” to better serve modern society. Originalists disagree.
Within the category of Originalists there are Textualists and Intentionalists. Within the
category of Living Document Theorists there are Pragmatists and Natural Law Theorists.
Textualists adhere to the position that the Constitution should be viewed under the literal
meaning of the original text. Intentionalists believe that it should be interpreted by analyzing the
intent of the original composers of the document.
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3. Posner, Richard A. Overcoming Law. Cambridge, Mass.: Harvard University Press, 1995.

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Pragmatists put more weight on precedent and on the consequential effect of the
determination reached. Natural Law Theorists rest on the conviction that a higher moral law
should prevail over inconsistent positive law. In practice it would be difficult to identify a Justice
who has reached all of his opinions adhering to only a singular ideology. Most Justices put more
weight on one of these categories of Constitutional Interpretation than the others, but still
incorporate elements of the rest.
III. ARGUMENTS
Originalists, assert that the very existence of a Constitution means that it was intended for
its directives to be fixed in place and immutable. In the event that extraordinary conditions exist
in which lawmakers wish to make a specific change, addition or elimination; than a procedure in
order to change it is dictated by the Constitution itself, through the amendment process.
Originalists further assert that since there is a provision laying out in great detail the specific
process which must be followed in order to amend the Constitution; that it is therefore expressly
prohibited to change it any other way.4
There are issues within the ideologies of both polarities which seem to be intentionally
obtuse and as such, reveal that there is likely more involved in supporting either one than is
immediately apparent. This is demonstrable in the first application of the doctrine of a “Living
Constitution.” It arose initially around the case of Missouri v. Holland (1920) 252U.S.416. This
case involved federal legislation which regulated migratory waterfowl.
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4. Frost, Bryan. History of American Political Thought. Lanham, Md.: Lexington Books, 2003.

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The birds in question commonly crossed over State and International borders which
raised the feeling that allowing regulation of hunting them on a state to state basis was
inappropriate and short sighted. Missouri successfully challenged the Constitutionality of the
legislation because the Constitution doesn’t expressly grant power over the interstate migration
of birds; asserting then that power was reserved to the state or the people, under the Tenth
Amendment. Frustration with this curtailment of federal intentions, translated into an end run to
circumvent the restriction.
This was accomplished by enlisting England to present a treaty to the U.S. protecting the
migrating waterfowl. This activated the Supremacy Clause which elevated the Treaty interest
over the interests of the individual states, allowing finally for federal legislation which regulated
Missouri’s interactions with the birds. Justice Oliver Wendell Holmes, in spite of the triumph of
Congress through application of the Supremacy Clause, had this to say:
“The case before us must be considered in the light of our whole experience
and not merely in that of what was said a hundred years ago. The treaty in
question does not contravene any prohibitory words to be found in the
Constitution. The only question is whether [252 U.S. 416, 434] it is forbidden by
some invisible radiation from the general terms of the Tenth Amendment. We
must consider what this country has become in deciding what that amendment
has reserved.”5
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5. Missouri v. Holland (1920) 252 U.S. 416

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His remarks give voice to the current philosophical basis for the “Living Constitution”
theory. However, in this case the literal interpretation of the Constitution enabled Congress
through the Supremacy Clause to supersede the Constitutional protection of the exercise of
unspecified State powers and those of the people as expressed in the Tenth Amendment.
The most visible and significant contemporary supporters of these two polar methods of
interpretation are Supreme Court Justice Antonin Scalia who proclaims himself an Originalist,
and Supreme Court Justice Stephen Breyer an avid ideologist of the “Living Document” theory.
In a recent debate between the two, Justice Breyer laughingly mocked himself because he had
actually consulted the history of previous cases for a certain case, as it seems he rarely concerns
himself with case law history. Justice Scalia on the other hand sees no circumstance when they
should act beyond the scope of the original text except in the instance of strong stare decisis
[precedent] which has traditionally governed a specific clause [outside of the boundaries of the
original text.]
What these arbitrary exceptions demonstrate clearly, is that the philosophy they espouse
is not the most persuasive element in their decisions. Scalia, in particular, infers that Roe v.
Wade is a decision under the “Living Constitution” theory. He presents a perspective that holds:
if the right or protection isn’t enumerated in the Constitution, than it does not exist and can’t be
the basis of Court decisions, apparently simply closing his eyes when he comes to the Ninth
Amendment, wherein, the right of a woman over her own body [Roe v. Wade], and the right to
privacy may rightfully rest, as it provides that the listing of rights in the constitution doesn’t
eliminate rights which aren’t listed.

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It is unclear which of these two ideologies was responsible for the decision in the case of
Citizens United v. FEC when granting personhood to corporations, but there is no justification
within the Constitution. That instance is an excellent example why patently unconstitutional
decisions from the Supreme Court should serve as an instance of breaching the “hold office
while on good behavior” clause.
IV. CONCLUSION
The Constitution was drafted at a very well documented time in history, and the drafting
of the text was discussed and debated extensively. The motives, intentions, arguments and
concerns of those involved in crafting the Constitution are readily available to us. While some
portions can be described as broad or vague, much of it is very clear and specific. The concept of
the Constitution as a “Living Document” that evolves over time is cause for concern as the
fundamental principles that our nation is founded on are corroded from all sides. The intent of
our founding fathers has never been vague. The lofty ideal of Liberty was the driving force that
caused extraordinary people to risk everything to create this nation. It is informative to have
Liberty defined as Thomas Jefferson perceived it:
“Under the law of nature, all men are born free; everyone comes into the
world with a right to his own person, which includes the liberty of moving
and using it at his own will. This is what is called personal liberty, and is
give him by the author of nature.”6
6. Hayes, Kevin J. The Road to Monticello: The Life and Mind of Thomas Jefferson. Oxford:
Oxford University Press, 2008.

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This sentiment is behind the founding of our country and it should be the underlying
principle coloring all Constitutional interpretation. It is the fundamental premise embodied in the
preamble and it is what would best serve the people. When viewed in light of this clearly
communicated definition of liberty, much additional legislation comes to mind which would
have to be found unconstitutional, and the Eighteenth Amendment, for example, could not have
taken place due to the definite wording which prohibits laws in contradiction of the Constitution..
The Ninth Amendment also protects additional rights not enumerated in the Constitution.
The very natures of this Amendment and the Tenth Amendment allow the Constitution to
function as a “Living Document,” confirming the People’s authority to assert rights and liberties
which the Constitution does not define. Applying those Amendments would not require the
passage of additional Amendments in order to expand the scope of the Constitution’s reach. Yet
these amendments are almost never cited or applied in “interpreting” the document. This may be
because they don’t favor the government’s interests, but the people’s. The clause that is most
often applied in order to circumvent expressly granted liberties is known as the “Necessary and
Proper” clause. It is in Article 1 section 8 (18). The clause reads in full:
“To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
Officer thereof.”7
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6. Menez, Joseph F., and John R. Vile. Summaries of Leading Cases on the Constitution. 14th
ed. Lanham: Rowman & Littlefield Publishers, 2004.

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The text indicates that it is only allowing for laws to be made which enable Congress to
administer its expressed powers as defined by the Constitution. The literal text cannot possibly
be construed otherwise, and yet it has been so construed again and again in case law in which the
common “Constitutional” test for allowable violations of express protections granted or liberties
defined is this vague phrase: “A compelling government [state] interest.” A vague wording used
by a test intended to supersede very specific meaning in the text of the Constitution.
We need only look to the preamble to see the unconstitutionality of this “Constitutional”
test, where it indicates the authority vesting the Constitution as the Supreme Law of the Land.
It is “We the People” and the purpose expressly stated is to “secure the Blessings of Liberty to
ourselves and our Posterity, do Ordain and Establish…”8 The Constitution was not written to
serve the “State’s interest.” In fact it was written precisely so the interests of the government and
the elite could not gain precedence over the interests of the people.
In the Preamble, the words “establish” and “ordain” are not “suggest” or “provide
philosophical guidelines.” Establish means: “to set up an organization, system, or set of rules on
a firm, permanent basis.” Ordain means: “to order or decree something officially.”
Article 1 Section 1. States: “All legislative powers shall be vested in Congress.” Our
Supreme Court is constitutionally precluded from engaging in Judicial Activism. They were not
elected or appointed to do so.
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8. “The Constitution of The United States” Preamble

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The President’s oath of office requires him to swear to preserve, protect and defend the
Constitution of the United States.9 If the President is required, within the document, to swear an
oath to preserve that document, there is no further valid argument that the document can lawfully
evolve. The most compelling source to determine whether the people who convened in concert to
act as the authority to establish this document, actually intended for the document to mean what
it says are the words they left for us, in the Constitution, the Declaration of Independence, the
Bill of Rights, The Articles of the Confederation, the records of the debates from the
Constitutional Congress, the Federalist Papers, the Anti-Federalist Papers, vast volumes of
personal correspondence and Poor Richard’s Almanac. Their intent couldn’t be any more clear.
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9. “The Constitution of The United States” Article II, Section 1 Clause 8

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RESOURCES
Whittington, Keith E., and D.C. Washington. How to Read the Constitution: Self-government
and the Jurisprudence of Originalism. Washington, DC: Heritage Foundation, 2006.
Marbury v. Madison (1803) 5U.S.137
Posner, Richard A. Overcoming Law. Cambridge, Mass.: Harvard University Press, 1995.
Frost, Bryan. History of American Political Thought. Lanham, Md.: Lexington Books, 2003.
Missouri v. Holland (1920) 252 U.S. 416
Menez, Joseph F., and John R. Vile. Summaries of Leading Cases on the Constitution. 14th ed.
Lanham: Rowman & Littlefield Publishers, 2004.
Hayes, Kevin J. The Road to Monticello: The Life and Mind of Thomas Jefferson. Oxford:
Oxford University Press, 2008.
“The Constitution of The United States” Preamble
“The Constitution of The United States” Article II, Section 1 Clause 8