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Should the Constitution Respond to Change?

Two legal scholars debate opposing answers in a new book

August 31, 2011

CHICAGO — Since at least the 1970s, judges and legal scholars have been divided over the proper approach to constitutional interpretation, some embracing an “originalism” that closely follows the language and original understanding of the Constitution, while others insist on a “living Constitution” that responds to the changing values of a modern world.

In “Constitutional Originalism: A Debate” (Cornell University Press, 2011) law professors Robert W. Bennett of Northwestern University and Lawrence B. Solum of the University of Illinois College of Law take turns discussing and debating the distinctions between these two approaches to constitutional interpretation. 

In a series of back-and-forth essays, Bennett and Solum point out the stark differences between the two camps. Bennett sees a living Constitution as inevitable while Solum draws on the philosophy of language in a defense of originalism.

Originalism has seen a resurgence in recent decades as a means of restraining a perceived “judicial activism” of the Supreme Court, with decisions based on personal and political preferences of the Justices. Justices Antonin Scalia and Clarence Thomas are particularly vocal proponents of originalism.

Living Constitutionalists, in contrast, argue that the Constitution simply does not address many of the issues faced in modern legal battles. As Bennett puts it, “there is much less to originalism than meets the eye.”  

In the book, Bennett and Solum explore some fine distinctions between the two sides of the debate. For example, even originalists must decide on which “original” meaning to turn to — the intent of the framers of the Constitution or the common understanding of contemporary readers.

Ultimately, the two scholars agree on a few important points. Each is convinced, for instance, that there is no necessary tie between constitutional originalism and political conservatism. 

Each also embraces the Supreme Court’s Brown decision of the 1950s finding racial segregation of the public schools a violation of the Fourteenth Amendment. Solum believes that Brown could be justified in originalist terms, but on account of overwhelming moral considerations he would embrace it even if the originalist case was weak. 

Similarly, Bennett does not eschew judicial constraint but urges that following earlier judicial decisions is a more effective vehicle for constraint than originalism. 

“Constitutional Originalism: A Debate” serves as an introduction to those seeking to understand one of the most important debates in modern legal scholarship.

“In a highly readable discussion, these two eminent legal scholars bring sophistication and nuanced insights to a perennially controversial topic,” writes Paul Brest, dean emeritus of Stanford Law School and the person who coined the term “originalism.”