For
the past thirty years, conservatives and progressives have debated a
fundamental question about interpreting the U.S. Constitution.
Conservatives hew to the doctrine of originalism -- that judges
must seek the original meanings of the document as of the time of its
adoption, and enforce them. Progressives like the theory of a living
Constitution, one that changes shape and meaning with the times, as
determined by the judges.
Neither side is pure. Conservatives cannot ignore the impact of history -- Justice Scalia describes himself as a faint-hearted originalist -- and few progressives want to discard original meaning totally, though they come closer to this position each year. It is a complicated debate, with many shades of opinion.
The basic problem is not with the conflict, but with something on which the contestants seem to agree, which is the consequences of each approach for government power. Both seem to believe that the originalists' approach would cabin government power, while the living Constitution automatically means that government power can expand steadily, at least in the economic sphere.
But why should this be? To concede that the Constitution is living, with meanings evolving in the light of our national experience, should in no way imply that we must grant the government continuing dollops of power.
Neither side is pure. Conservatives cannot ignore the impact of history -- Justice Scalia describes himself as a faint-hearted originalist -- and few progressives want to discard original meaning totally, though they come closer to this position each year. It is a complicated debate, with many shades of opinion.
The basic problem is not with the conflict, but with something on which the contestants seem to agree, which is the consequences of each approach for government power. Both seem to believe that the originalists' approach would cabin government power, while the living Constitution automatically means that government power can expand steadily, at least in the economic sphere.
But why should this be? To concede that the Constitution is living, with meanings evolving in the light of our national experience, should in no way imply that we must grant the government continuing dollops of power.
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