Court cases, indictments and lawsuits flood the news. The litigation’s’ question: The President’s powers and authority; the rights and liabilities of illegal immigrants; congressional control of public revenue, taxation and spending. Cases of enormous consequence either have reached, or soon will reach, the Supreme Court.
The Court’s nine Justices must rule on cases based upon their interpretation of the words and phrases of the U.S. Constitution. But should the Justices broadly or strictly construe them? It is an aged debate.
The Court’s interpretations have swung back and forth since the days of Alexander Hamilton and John Marshall. Presidents, Senators and U.S. Representatives come and go, but the final authorities embedded in the Constitution have held true.
Those favoring the Constitution’s broad construction point to the extreme difficulty—even in pressing circumstances— of changing it by amendment. The document has been amended just 27 times. 10,000 people have submitted petitions for amendments. Between 1980 and 2020, Congress itself proposed more than 2100 constitutional amendments. Each one failed. The final Amendment of May 7, 1992 addressed—of all things—congressional compensation.
The Nineteenth Amendment, granting women the right to vote, first proposed in 1848, was not ratified until 1920, following 72 years of agitation, demonstration and moral outrage.
Those favoring the Constitution’s broader interpretation insist it is a living document, subject to the eternal truth of change. They point to the country’s primitive structures—social, political, economic—surrounding its adoption, together with its transformations since 1789. This may be their strongest argument.
Delegates to the Constitutional Convention did represent a nation very different from our own. Of the population of around three million, a quarter were enslaved Africans. New York City held but 33,131 inhabitants. The remainder, excluding those in Philadelphia and Boston, were widely scattered along the eastern seaboard, connected by makeshift roads, inadequate bridges, backward wayside inns and taverns. Most of the population labored on small farms or in allied industries. Government regulation was rarely needed or wanted. Communications, a necessity of modern life, were as slow as in Roman times.
A broader interpretation accounted for an America stricken by the Great Depression and the war-time demands of World War II. The Supreme Court’s broad interpretation of the Constitution’s defense, commerce and general welfare clause lead to an expansion of federal powers.
Strict constructionists, including some Supreme Court justices, are labeled “originalists.” They aim to follow the words and phrases of the Constitution as they would have been understood, or were intended to be understood, by the men who wrote them 250 years ago.
Beginning with the Reagan administration, the originalists have gained momentum. Reagan’s attorney general, Edwin Meese III, adopted the idea that “original intent” is an essential part of the “constitutional framework of checks and balances.” He said: “Jurisprudence of original intention is the only legitimate and properly democratic method of constitutional interpretation.”
A leading light among originalists was Supreme Court Justice, Anthony Scalia, who served from 1986-2016. In writings and speeches he declared, “The Constitution is dead” and “the whole purpose of the Constitution is to prevent a future society from doing what it wants to do.”
The Supreme Court’s opinions, under Chief Justice John Roberts, indicate it has adopted an “originalist” construction. Directly in point: Dobbs v. Jackson Women’s Health (2022) holding that abortion rights are nowhere found in the words and meaning of the U.S. Constitution and Loper Bright Enterprises v. Raimondo (2020) limiting the leeway courts could allow federal agencies.
Sources: Wikipedia; “How Originalism Killed the Constitution,” J. Lepore, The Atlantic, Oct. ’25,p 22; The U.S. Constitution, R. Raphael, Vantage Books, pp 4-5; Oxford Companion to US History, p 158.
