One of the more popular contemporary interpretations of the Constitution is the notion that it is a living document, or that its meaning changes over time. Indeed, it is easy to think that a document that is more than 200 years old might by now become at least a little outdated, or even irrelevant. However, my contention is that the values and principles embodied in the Constitution are just as relevant today as they were when the founders first created it. With this in mind, the Constitution should be interpreted not as a living document, but as close to the original intent that the Founders had in mind.
The most important reason why the Constitution should not be interpreted as a living document is that it opens the door for all other kinds of ideas to be read into its meaning. This is a major flaw with those who adhere to a nonoriginal approach to interpreting the Constitution; of all of the approaches it is the, “most vulnerable to the charge of illegitimacy,” (May, Ides, 2013, p. 39). Who is to say what parts of the Constitution are outdated and which parts are not? Without a baseline of original meaning, the consistency of rulings is put in danger—one judge may read new meaning into a phrase in the Constitution for one reason, another may read something completely different into that same phrase for other reasons. An original intent approach seeks to preserve the ideals that the Constitution was designed to uphold, rather than risk its perversion with a living document approach.
One of the problems that our textbook claims is associated with an originalist approach to the Constitution is that it causes the document to be unable to address the new and contemporary issues that did not exist at the time of its creation. This argument cites the different types of speech—radio, T.V., Internet—that did not exist in the 1700s that under a strict and specific version of originalism could be rendered unprotected under the 1st Amendment (May, Ides, 2013, p. 38). This approach, however, is actually a form of textualism rather than originalism, taking only the strict meaning of the words of the Constitution—which actually could rule out even some forms of speech available in the 1700s—and disregarding the principle of free speech that the Founders originally intended to uphold.
May, C. N. Idea, A. (2013) Constitutional Law: National Power and Federalism. New York: Wolters Kluwer Law & Business.