What are your thoughts on the originalism versus living constitutionalism debate?

Futurist

Ad Honoris
May 2014
22,239
SoCal
Here in the US, we have had a lively debate about originalism versus living constitutionalism over the last 40+ years. (This debate began before 1991 and thus this should hopefully make it an acceptable topic of discussion for this forum.) Basically, originalism means that judges should interpret laws and constitutions based on the original intent of the people who wrote these laws and constitutions--or, according to later originalism, based on the original understanding or the original meaning of these laws and constitutions. (There has developed a debate among originalists about whether the original intent, original understanding, or original meaning should be decisive--especially in cases where different approaches result in different outcomes.) In contrast, living constitutionalists argue that we don't have to follow the original intent and/or original understanding and/or original meaning of a law or constitution. Rather, we could interpret this law or constitution in such a way that it takes into account present-day needs and realities--as well as what present-day observers consider to be desirable outcomes.

Here is an article (originally written in 1980, I believe) about the debate in regards to originalism versus living constitutionalism that has occurred up to that point in time:

RAOUL BERGER AND THE DEBATE OVER

Also, here is a Wikipedia article that I wrote about the 1977 book Government by Judiciary--specifically a book by constitutional scholar Raoul Berger where he advocated in favor of using original intent to interpret US constitutional provisions and especially the 14th Amendment:

Government by Judiciary - Wikipedia

Anyway, what are your own thoughts on this debate (whether in regards to the US or in regards to your own country and its laws and constitution) and which side would you have taken in this debate?
 
Mar 2019
1,961
Kansas
Anyway, what are your own thoughts on this debate (whether in regards to the US or in regards to your own country and its laws and constitution) and which side would you have taken in this debate?
Originalism only exists when people don't want to accept that circumstances have changed. The gun debate and the second amendment is an excellent example of this. The founding fathers could never imagine in their wildest dreams the inventive ability of humans to destroy each other.

A constitution has to be adaptable and have the mechanism for changes as society changes. Conversely that ability to change has to be convoluted enough so that decisions don't become reactionary, and have a sense of level headedness about it
 
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Futurist

Ad Honoris
May 2014
22,239
SoCal
Originalism only exists when people don't want to accept that circumstances have changed. The gun debate and the second amendment is an excellent example of this. The founding fathers could never imagine in their wildest dreams the inventive ability of humans to destroy each other.

A constitution has to be adaptable and have the mechanism for changes as society changes. Conversely that ability to change has to be convoluted enough so that decisions don't become reactionary, and have a sense of level headedness about it
Would you be willing to apply that logic to overruling explicit constitutional text, though? For instance, would you be willing to embrace this Fifth Amendment argument in favor of getting rid of the natural-born citizen requirement for the US Presidency? :

https://repository.jmls.edu/cgi/viewcontent.cgi?article=1287&context=lawreview
 
May 2018
133
Houston, TX
The way I think of it is: that the Constitution itself has a built-in mechanism for responding to changes in society, circumstances, etc. It is the ability to be amended. And it has been so amended quite a few times in response to those changes. The 19th Amendment granting the voting franchise to women for example. I would prefer that the Judicial branch of the government defer major changes to the amendment process, rather than 'legislate from the bench'. Yes, I realize that question of what constitutes a 'major' change can be debated, but that is how I feel.

As far as the native born vs. foreign born requirement for the Presidency, I think that should be left to the Amendment process.
 

Futurist

Ad Honoris
May 2014
22,239
SoCal
The way I think of it is: that the Constitution itself has a built-in mechanism for responding to changes in society, circumstances, etc. It is the ability to be amended. And it has been so amended quite a few times in response to those changes. The 19th Amendment granting the voting franchise to women for example. I would prefer that the Judicial branch of the government defer major changes to the amendment process, rather than 'legislate from the bench'. Yes, I realize that question of what constitutes a 'major' change can be debated, but that is how I feel.

As far as the native born vs. foreign born requirement for the Presidency, I think that should be left to the Amendment process.
See, you're consistent in regards to this--which is what I like even if I were to disagree with you. :)
 
Mar 2019
1,961
Kansas
t in favor of getting rid of the natural-born citizen requirement for the US Presidency? :
Given I have never had a strong opinion about that requirement, I really dont have a dog in the fight. I would however have a very strong opinion about a president, or any leader, holding duel citizenship
 

Futurist

Ad Honoris
May 2014
22,239
SoCal
Given I have never had a strong opinion about that requirement, I really dont have a dog in the fight. I would however have a very strong opinion about a president, or any leader, holding duel citizenship
We could still have dual citizens serving as US President right now just as long as they're also natural-born US citizens, though.
 
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Mar 2019
1,961
Kansas
We could still have dual citizens serving as US President right now just as long as they're also natural-born US citizens, though.
Sure, and I certainly would not vote for them, and would be very vocal in my opposition. But thats the true joy of democracy. If enough think like me. The person fails in their bid. If not enough people agree with me. All I have is to go off and suck my thumb for four years :)
 
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Futurist

Ad Honoris
May 2014
22,239
SoCal
Sure, and I certainly would not vote for them, and would be very vocal in my opposition. But thats the true joy of democracy. If enough think like me. The person fails in their bid. If not enough people agree with me. All I have is to go off and suck my thumb for four years :)
Yes; thus, why not allowed naturalized US citizens to run for US President as well? After all, you could always reject them at the ballot box.
 
May 2019
202
Salt Lake City, Utah
Originalism has never made sense to me in that change is the only constant in human life and society.
r
We should not expect to be explicitly governed by the rules of 1789. Life has changed too much. I think that is why common sense approves of the action of CJOTSC John Marshall and the doctrine of judicial review. It should not be a surprise to any one that nine of the states had the doctrine in law before 1803.