Brief Overview of Originalism and Contemporary Ratification

Judicial authorities are asked to resolve cases of controversy. Often, these cases involve a Constitutional question that has not been discussed before. Consequently, judges are asked to interpret the Constitution so they can resolve the controversy. But what is the best way to understand the Constitution?

Justices will revert to some form of originalism or contemporary ratification.

Broadly speaking, originalists will refer to the founders’ intent, or the meaning of the text, when they adjudicate a case.

Contemporary ratification believes the Constitution protects moral values. Because of the change of time, the traits valued by society are constantly updating. Thus, contemporary interpretation seeks to protect current societal values and rule accordingly.

The several methods of interpretation lead us to wonder which is correct. Are they both right? Are they both wrong?

The Debate

We present you with a debate. Like an oral debate, each side is given a fair opportunity to put forth an argument, defend the position, and cross-examine the opponent’s argument. Both sides will be speaking directly to you, the audience, to persuade you that their argument is correct.

So, which method is correct? You decide.

Originalism Opening Arguments

Imagine for a moment that you jumped back in time to the time, to 1787. The founders were creating a law. This law, called the Constitution, established a form of government, gave that government power, and also restricted that power. The founders thought carefully about every piece of text as they discussed how power should be divided.

By interpreting the Constitution as closely as it was written at the time of ratification, we can ensure the law functions as it was intended to do.

The Constitution is a law, the Supreme Law. The law is unchanging unless altered by Amendment through the legislative branch. The courts have a responsibility to protect the law. The courts were not supposed to be a legislature by interpreting the Constitution as a changing document to protect changing values.

Yes, we live in a changing country. But no, it is not the court’s responsibility to amend the Constitution.

Therefore, as cases are adjudicated, we should reference the framers’ intent and the text to distribute accurate conclusions.

Contemporary Ratification Cross-Examination

The arguments presented by the originalists do not account for the passage of time. Their reasoning focuses on the text instead of the values the founders sought to protect. Importantly, these values are not written down in the Constitution. However, the values are implied throughout the text. Because the founders sought to protect values, these values can change throughout time and need to be continually protected. Thus, we cannot always interpret the Constitution as it was originally written.

Interestingly, the originalists assume the founders agreed on every issue. However, the framers of the Constitution did not agree on everything. Instead, they often disagreed with one another. History makes this much clear. Additionally, historical records of the Constitutional Convention are incomplete. Consequently, we do not fully know what the founders were thinking. How then can you be sure of their intentions?

Contemporary Ratification Opening Arguments

Much of our argument was laid out in the cross-examination. Imagine for a moment that you jump back to 1787. You join the founders at the Constitutional Convention, walking because technology has not developed cars. You are wearing lacey clothes and a wig. As discussions go into the night, a kerosene lamp must be lit instead of a lightbulb. Not to mention, only men were allowed to attend the proceedings.

The founders had recently endured war and sought to protect the people from an oppressive government. The Constitution that resulted helped shape how the government was organized. More importantly, the Constitution protected fundamental values. Values such as “life, liberty, and the pursuit of happiness” and the right to privacy from government invasion are among those protected values.

However, the framers had their faults. At the time of the founding, slavery was permitted, and married women were considered property. The writing of the Constitution protected these flaws.

Since then, our country has progressed in resolving these faults. The values of today are different from the values of the founders. Sure, we still protect the values of life, liberty, happiness, and privacy. But now, we also protect against discrimination based on race or gender. 

Thus, the Constitution protects some values from 1787 and also the morals that society currently values.

In short, our argument can be presented as the following:

  • The Constitution was designed to protect fundamental moral values.
  • We should continue to secure moral values.
  • Values have changed throughout time.
  • Therefore, we should interpret the Constitution to protect the values that are important today.

Originalism Cross-Examination

The argument from contemporary ratification puts more weight on the framers’ values instead of the law developed. The Constitution is a contract, not a list of values. However, contemporary interpretation treats the Constitution more like a guideline to be influenced by prevailing values. This thinking presents two flaws.

  1. Who decides what fundamental values are?
  2. If values can expand on individual rights, values can also restrict individual rights.

First, who decides what the fundamental values are? Are these values derived from political philosophers like Plato or Locke? Perhaps these values are best understood by the latest polling data? Contemporary ratification has no set process on how to determine what principles should be protected. They reference the founders, and they reference the societal majority. Who decides what the values are is not a concern if it agrees with political preferences.

Second, with the contemporary ratification approach, rights can be expanded and restricted based on societal values.

In Coy v. Iowa, a man was charged with a crime. Witnesses were permitted to testify with a screen that removed the defendant from the view of the witnesses. The court held this practice as unconstitutional because it violated the 6th Amendment right that the accused can be “confronted with the witnesses against him.” However, contemporary interpretation may say that modern society is much more opposed to the emotional trauma a witness may feel. Thus, they could have held the act as Constitutional and restricted the rights of the criminally accused (even if it is in direct violation of a Constitutional Amendment).

This example shows how fluid contemporary ratification is. A judge, based on the fundamental values (derived from who knows where), may restrict or expand rights, regardless of the Constitutional text. This practice will lead to a fragile society.

Finally, it is the responsibility of the legislature, not the courts, to propose amendments to the Constitution. For the courts to do so would be an abuse of judicial power.

Contemporary Ratification Rebuttal

The originalist argument is mistaken to believe that there is no process for determining what fundamental values should be protected. Although the text is unclear, the values of the founders are not. Jefferson deliberately wrote what values should be included in the new nation when he drafted the Declaration of Independence. The Civil War shaped how we respond to race in the United States. Further, the civil rights movement and the woman’s suffrage movement provide evidence to a continually developing society. We draw on these sources when adjudicating cases.

Originalism Rebuttal

Contemporary ratification argues that originalists do not account for the passage of time. That statement is false. In their rebuttal, the contemporary approach mentions several events that led to the amendment of the Constitution, not the interpretation. The right for all individuals to vote, the abolishment of slavery, and other Amendments can also be interpreted with an originalist approach. As society makes major shifts, the legislature should make the necessary adjustments, not the court. The emphasis on values over law would remove many checks and balances established by the Constitution.

Contemporary Ratification Closing Arguments

As you can see, there are severe flaws with an originalist approach to Constitutional interpretation. For instance, the founders frequently disagreed. History is not enough of a motivating factor to always take the Constitution at face value.

Instead, we should rely on the values protected by the Constitution. Some of these values were held by the founders. However, other values have developed and also require Constitutional protection.

An originalist approach fails to address the need to recognize fundamental values.

Thus, contemporary ratification is aware of changing societal values and interprets the Constitution accordingly.

Originalism Closing Arguments

Contemporary ratification has two main flaws. First, there is no method to determine what fundamental values are protected by the Constitution. Second, their approach could lead to the expansion and restriction of individual rights. This would fracture society because the Constitution is treated more like a guideline rather than a law.

Originalism has weaknesses, but those weaknesses are significantly less severe than contemporary ratification. Originalism has a set approach to interpreting the Constitution. Consequently, their findings tend to be more consistent than contemporary ratification. Additionally, originalists treat the text as law, because it is the law. Law does not change because society changes. If there is a change to the Constitution, through Amendment, the elected legislature should make the needed changes to protect current values.

Thus, an originalist approach is a more protective method of Constitutional interpretation.

Another Perspective

As with most things, this controversy is not only two-sided. One process of possibly finding a middle ground is through Stare Decisis. Stare Decisis is the use of precedent (established legal rule) to adjudicate. Once a controversy has been resolved, subsequent courts could use the new rule to settle later disputes. Stare Decisis is used regardless of if the court used an originalist or contemporary method of interpretation.

However, Stare Decisis does not prevent the court from disregarding precedent.

Each method of interpretation has strengths and weaknesses. So, which method should be used? Comment below to let us know what you think.

A Quick Note

We don’t claim to know everything. Click here to read our disclaimer.

For more information about other methods of Constitutional interpretation, click here.

These arguments were derived from Justice Scalia (an originalist) and Justice Brennen (who relies on contemporary ratification).

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Categories: Two Man Congress

Will Laursen

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