Written by William Bramwell (10)

The recent confirmations of Amy Coney Barrett and Neil Gorsuch to the Supreme Court have rekindled the debate over Originalism. In broad terms, the essence of Originalism is that judges should interpret the words of the Constitution by their exact meaning at the time of the United States’ founding, and how the Founding Fathers intended. This is the interpretation technique to which both Barrett and Gorsuch are strict adherents. But, how did the Founding Fathers interpret the Constitution, a document which many of them wrote? The answer is not clear. There were some, namely Alexander Hamilton and other Federalists, who believed in a loose interpretation of the Constitution, which they believed to be a flexible text. Others, such as James Madison and Thomas Jefferson, wanted a rigid Constitution that would limit government power and agency. However, during their presidencies, Madison and Jefferson adopted the flexible interpretation which had been popular with their opposition, the Federalists, for the purpose of greater reach of their power, such as Jefferson’s completion of the Louisiana Purchase.

The biggest advantage of the strict interpretation is the commitment to the balance of powers, which are critical to American democracy. This ensures that not too much power is consolidated in the hands of one judge. With a strict interpretation, the outcome of each case would be consistent, and not up to the whims of the judge presiding over it. The purpose of the judicial branch is to interpret the laws set forth by the legislature, not become the legislature itself by setting new precedents and laws. It is the job of the legislators, who have been elected by the people, to make amendments to the Constitution, because they represent the current beliefs and will of the populous, not one singular judge who was appointed decades ago. This leads into the most commonly used argument against the loose interpretation, which is that it undermines the Founding Fathers intentions by creating a system of checks and balances between each branch of the federal government.

However, the loose interpretation also has merit. By viewing the Constitution as a living, breathing document, we allow the words to adapt to different eras. Hamilton himself held this belief, as he thought it was imperative for the developing nation of America to establish a national bank to unleash economic growth. He cited the general welfare clause of the Constitution, which handed over powers to the federal government to improve the general welfare of the people. During times of extreme strife, most would argue that the government should be able to infringe on some rights in order to establish peace. The general clause was used by Abraham Lincoln when he suspended the writ of habeas corpus, shutting down over 300 newspapers which he saw as sabotaging the war effort. The Patriot Act, enacted after 9/11, handed over unprecedented power to the federal government to counter terrorist threats by dramatically increasing surveillance. A flexible interpretation allows for issues of civil rights and justice to be settled more efficiently, because it takes only one case for a landmark decision granting rights to minorities to be made, an example being Brown v. Board of Education. The response to this on the other side of the argument would be that too loose of an interpretation can also lead to racial discrimination, as vesting too much authority in the hands of one judge will inevitably go the other way. An example of this was when the Supreme Court ruled during World War II in Korematsu v. United States that the US government’s internment of 120,000 Japanese Americans was in the general interest of the public.

In the short term, a flexible interpretation of the Constitution may be appealing, as it allows for seemingly straightforward solutions to significant problems to be enacted, like the national bank. Over time, however, the loose interpretation of clauses such as general welfare can have adverse consequences, as the government begins to see no limit to its power, and infringes on basic constitutional liberties. Ultimately, it is best for government authority to be divided among the three branches, so each can balance the powers of the other. Thus, a rigid and strict interpretation of the constitution is best in the long term.