One of the features of the Constitution designed to protect individuals from the abuse of power by government is the creation of federalism. Federalism is the sharing of sovereignty between the states and the national government, sovereignty being, “the ultimate authority to govern […],” (Patterson, 2008, p. 69). This structure of government was innovated for the purpose of creating a strong national government for the United States, while still providing restraints to enable the states to maintain some of their sovereignty. By dividing authority between these two entities, federalism creates a check and balance system between federal and state governments to prevent an abuse of power. According to Alexander Hamilton, “If [the people’s] rights are invaded by either, they can make use of the other as the instrument of redress,” (Patterson, 2008, p. 71).
This feature of the Constitution has been the cause of much debate in several prominent Supreme Court cases over the past 5 years. For example, in 2012 the Supreme Court struck down an Arizona immigration law attempting to take federal law enforcement into the state’s hands, (Washington Post, 2012). Another example is found in the 2013 Supreme Court decision regarding California’s Proposition 8 banning gay marriage inside the state’s borders. The court refused to take up the case, thereby, “[leaving] in place a lower court’s decision that the ban is unconstitutional,” (Washington Post, 2013). Both of these controversies have opened up a national dialogue as to where states’ authority ends and federal authority begins.
Barnes, R. (2012, June 25). Supreme Court upholds key part of Arizona law for now, strikes down other provisions. Washington Post. Retrieved January 15, 2014, from http://www.washingtonpost.com/politics/supreme-court-rules-on-arizona-immigration-law/2012/06/25/gJQA0Nrm1V_story.html.
Barnes, R. (2013, June 26). At Supreme Court, victories for gay marriage. Washington Post. Retrieved January 15, 2014, from http://www.washingtonpost.com/politics/supreme-court/2013/06/26/f0039814-d9ab-11e2-a016-92547bf094cc_story.html.
Patterson, T. E. (2008). The American Democracy. New York City, New York: McGraw-Hill.
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 Indeed, it is easy to think that a document that is more than 200 years old might by now become at least a little outdated, or even irrelevant.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.