Is the Constitution a living document that should be interpreted according to current-day customs and values, or should it be interpreted on the basis of the “original intent” of the nation’s founders?
Those who believe in “original intent” think that the Constitution should be interpreted according to the way the Founding Fathers intended it to be applied, based on the reading of various documents, including the contemporary writings of the Framers, newspaper articles, the Federalist Papers and the notes from the Constitutional Convention itself. Their primary thesis is that those who wrote our founding document are the best source to clarify or explain the issues that may be disputed in the nation’s courts.
Those who do not believe in “original intent” argue that, although the Constitution may have been written by the Framers, it was ratified by hundreds of delegates in 13 state conventions and that the opinions of these people hold even more weight. In addition, the Framers were a diverse group, and many had issues with specific parts of the Constitution.
So, whose opinion should be used? Furthermore, do the opinions of a small, homogeneous group who lived more than 200 years ago have the respect of America’s large, diverse population of today?
One member of the U.S. Supreme Court, Justice Sonia Sotomayor, has disagreed with some of the justices who sit on the court with her. Speaking to a student forum at the University of Chicago Law School, she criticized Chief Justice John Roberts’ position in a 2007 case about whether public school admissions could be race-conscious to achieve diversity (Parents Involved in Community Schools v. Seattle School District No. 1).
Noting that Roberts said, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” Sotomayor told the law students that that formula is “too simple” for her, commenting, “I don’t borrow Chief Justice Roberts’ description of what colorblindness is. … Our society is too complex to use that kind of analysis.” She also told the students that, contrary to fellow Justice Antonin Scalia, she was “not sure” whether determining the original intent of the Constitution was the most important consideration in deciding a case.
However, speaking previously at the University of Kansas, Sotomayor stated that she is concerned that if the Constitution is viewed as a “living document,” it will be modified and perhaps even rewritten as every succeeding generation encounters new conditions in the society around them, and therefore would simply be a document that outlines the principles and values of the time.
As Groucho Marx famously said, “These are my principles. And if you don’t like them, I have others.”
In Sotomayor’s view, “When a new situation arises, or even a new variation on an old situation, the Constitution is often looked to for guidance. It is at this point that the various interpretations of the Constitution come into play.”
She further argues that there is no single correct way to interpret the Constitution, that people don’t always stick to one interpretation.
If the Constitution is a “living document,” it follows that each new generation will be in the position of rewriting it. Applying this logic, the Constitution is often looked to for guidance, and it is at this point that the various interpretations of the Constitution come into play.
It appears that, in Sotomayor’s view, the Supreme Court is the institution that should decide what the current interpretation of the Constitution should be as it reviews cases. This also means, of course, that as each succeeding appointment to the court is made, the interpretation of the Constitution will change according to the views of the new justices.
The justices have precedent as their guide, but apparently, in Sotomayor’s view, the court is not bound by it. Her statement that we “have structural problems in the society that have to be addressed before we reach full equality; we can’t live in a society where the poorest children are the poorest educated,” also appears to lay down a marker that gives the Supreme Court leave to correct the inequities in society, as they perceive them to be.
Sotomayor’s view subjects the Supreme Court to varying political pressures when it is considering cases, and I don’t believe that was the intent of the founders when they divided the government into three co-equal branches: legislative, executive and judicial.
Sotomayor’s perception of the function of the Supreme Court makes it superior to the other two branches by virtue of their role in correcting “the inequities in society.”
However, my sense is that the legislative branch has the responsibility of limiting the impact of the Supreme Court, and it is simply not doing its job.
— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who as lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog, Opinionfest.com.