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Confirmation of Supreme Court Justices:

The Constitutional Interpretation Litmus Test


The recent confirmation hearing of Tenth Circuit judge and now Justice Neil Gorsuch underscored the partisanship -- and polarization -- that exists in the United States Senate and the infirmities that plague the judicial nomination process. Indeed, although the United States Constitution provides that the President of the United States' can only appoint judges to the federal bench with the Senate’s "advice and consent",[i] this process has rapidly devolved into a political soap opera in which a judicial nominee's personal life and professional career -- particularly the nominee’s ideology -- engender intense and often unreasonable scrutiny. The nomination process of Justice Gorsuch was no different, as the Senate's judiciary committee’s members peppered Gorsuch with questions focusing almost exclusively on the outcomes that he reached in specific cases.

For example, in moments reminiscent of the failed confirmation in 1988 of late judge and Yale law professor Robert Bork, some senators accused Justice Gorsuch of rendering decisions that were insensitive to women’s and employees’ rights, and biased in favor of corporate interests. Such allegations, however, rather than representing a principled inquiry into Justice Gorsuch's judicial temperament and fitness to serve on the nation's highest court, reflected nothing more than an attempt by to disqualify a judge who did not share their personal policy predilections. That, in a nutshell, is the problem that continues to eviscerate the integrity of the nomination process and undermine the public's faith in the fairness of political institutions. Indeed, contrary to the political theater that was on full display in the latest confirmation process, judges are not political actors, and their duty to interpret the Constitution, statutes, and common law should be made irrespective of the desirability of a particular outcome or a subjective policy preference. At its core, judging is an endeavor involving interpretation and construction -- not legislation -- and the focus, therefore, should not be focused primarily on the outcome that a judge reaches, but on the process by which that outcome is reached.

In fact, during Justice Gorsuch's confirmation process, lurking beneath the judiciary committee's predominant focus on outcomes was a philosophical -- and jurisprudential -- debate that continues to divide politicians, jurists, and the public regarding constitutional interpretation. Specifically, how should the language in the United States Constitution -- particularly the Bill of Rights -- be interpreted? Additionally, how should judges interpret the Constitution when the provision at issue, such as the First Amendment, is ambiguous and susceptible to alternative constructions? And should a judge's interpretive paradigm be influenced by the purposes underlying a particular provision, if they are ascertainable, the expectation of the Founders when drafting such provision, and the historical record at the time of its adoption? Finally, should a judge's approach to constitutional interpretation consider the fairness and desirability of the outcome, and if so, to what extent?

These questions, and the answers thereto, lie at the core of the debate -- and cultural divide -- between the two predominant theories of interpretation in American constitutional law: originalism and living constitutionalism. This article provides an overview of both theories, explains how the application of such theories has impacted constitutional construction and meaning (i.e., the legal rules that are produced when interpreting the Constitution), and examines whether, based on history, tradition, and democratic principles, such as federalism, separation of powers, and de-centralization, originalism or living constitutionalism should be the preferred method of constitutional interpretation. In so doing, this article concludes that both theories should remain prevalent in constitutional interpretation, and that originalism and living constitutionalism are not necessarily incompatible. Rather, reliance upon either theory should be predicated on, among other things, whether the provision at issue is ambiguous and thus subject to reasonable alternative interpretations, whether the Constitution is silent on an issue, and upon whether the application of either theory would safeguard the bedrock principles of democratic governance.

II. Originalism and Living Constitutionalism

As stated above, originalism and living constitutionalism constitute the primary theories of constitutional interpretation. Originalism has many variations, but at its core, originalists believe that the Constitution's language should be interpreted -- and accorded meaning -- based on what the Founders understood the words to mean at the time the Constitution was adopted. Conversely, living constitutionalists believe that the Constitution's language -- and meaning -- changes over time to reflect contemporary societal values and to resolve legal issues that the Founders could not foresee, including those affecting civil rights and liberties. The appropriateness of applying either theory, however, depends on the language of the constitutional provision at issue, namely, whether the text is unambiguous, and on whether the Constitution is silent on a particular issue.

A. Where The Provision at Issue Is Unambiguous

If the language of a particular constitutional provision is unambiguous, originalism provides the best framework within which to resolve a legal question. For example, the Fourteenth Amendment of the Constitution provides in relevant part as follows:

No person shall be deprived of life, liberty, or property without due process of law.[ii]

When construing the Fourteenth Amendment, there can be little doubt regarding its meaning. The Framers intended that no citizen be subjected to criminal penalties, including death, life imprisonment, or property forfeiture, unless the state provides adequate procedural safeguards to prevent the arbitrary imposition of criminal sanctions. Simply stated, the purpose underlying the Fourteenth Amendment is to protect against the unjust and unfair deprivation of individual liberty. Thus, an originalist approach to interpreting this provision is preferable because it comports with the Fourteenth Amendment’s text and underlying purpose. In Matthews v. Eldridge[iii], for example, the United States Supreme Court confirmed this interpretation and established a three-pronged framework for determining the adequacy of procedural safeguards in criminal and administrative proceedings.

In the latter part of the 20th Century, the Court began to ascribe broader meaning to the Fourteenth Amendment that signaled a shift towards living constitutionalism. For example, in Griswold v. Connecticut,[iv] the Court relied on the Fourteenth Amendment to invalidate a law that banned contraceptive use. In so doing, the Court held that, although the Fourteenth Amendment’s text did not expressly support the Court’s decision, the Bill of Rights contains invisible penumbras “formed by emanations from those guarantees that help give them life and substance.”[v] Similarly, in Roe v. Wade,[vi] the Court held that the word ‘liberty’ in the Fourteenth Amendment conferred a substantive and implicit right to privacy that encompassed the freedom to access pre-viability abortions. In Planned Parenthood v. Casey,[vii], the Court reaffirmed Roe and held that the Fourteenth Amendment protects an individual’s substantive right to define “one’s own concept of existence, and of the mysteries of human life.”[viii] Likewise, in Lawrence v. Texas,[ix] the Court held that the Fourteenth Amendment protects a substantive right to liberty “in its spatial and more transcendent dimensions,”[x] and thus justified the invalidation of laws that banned same-sex sodomy. Finally, in Obergefell v. Hodges [xi], the Court held that the Fourteenth Amendment contained a substantive right to “equal dignity” under the law and, as such, supported the recognition of same-sex couples’ right to marry.

B. Where The Text Is Ambiguous

In circumstances, where the Constitution is ambiguous, originalism fails to provide adequate answers to vexing legal questions and living constitution can have a more prominent role in constitutional interpretation. For example, consider the text of the First Amendment, which governs, among other things, freedom of speech:

Congress shall make no law … abridging the freedom of speech, or of the press.[xii]

Undoubtedly, unlike the Fourteenth Amendment, the First Amendment is phrased in broad terms and therefore requires judges to interpret the text -- and create constitutional meaning -- based on the facts and legal issues presented in a particular case. For example, does the word “speech” refer only to verbal utterances or does it encompass non-verbal yet expressive conduct? Similarly, what does it mean to “abridge” the freedom of speech? Does it mean that Congress can place no limits whatsoever on an individual’s right to speak freely, or does it permit Congress to place reasonable limits on speech if countervailing interests, such as public safety or the integrity of the political process, justify such a restriction? And are there some categories of speech that warrant no protection at all? Likewise, does the freedom of speech apply only to individuals, or to corporations as well?

Indeed, because the answers to these questions cannot be found merely by examining the text, originalism itself is an insufficient method by which to interpret the First Amendment and construct legal rules to clarify its meaning. In this situation, living constitutionalism can -- and should -- play a more decisive role by considering the purposes underlying the First Amendment -- creating a robust marketplace of ideas that welcomes unpopular and even offensive ideas -- and the effects of a particular decision on principles such a democratic self-governance, including the right of individuals to participate actively in the legislative and political process, federalism (i.e., the rights of states and citizens to enact laws based on personal policy preferences) and judicial restraint. Put differently, in situations where the Constitution’s text is ambiguous, living constitutionalism can -- and should -- guide the Court’s interpretive approach for the purpose of reaching a result that enhances democracy, liberty, and autonomy.

Similarly, the Eighth Amendment provides in relevant part as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[xiii]

Like the First Amendment, the Eighth Amendment is written in broad terms and susceptible to alternative and equally legitimate interpretations. For example, judges may disagree concerning whether a punishment is “cruel” or “unusual,” and an examination of the Eighth Amendment’s underlying purpose -- to prevent the unnecessary infliction of punishment -- is invariably necessary to assist judges in arriving at a reasonable interpretation. Importantly, however, like the First Amendment, the Eighth Amendment’s purpose is itself broad and thus susceptible, albeit reasonable, interpretations. In such situations, living constitutionalism can provide the courts with a framework in which to reach outcomes that further bedrock constitutional principles, such as liberty, equality, and fundamental fairness, that are consistent with the Amendment’s purposes, and ensure the legitimacy of the process by which that outcome is reached.

C. Where The Constitution Is Silent On a Particular Issue

In many cases, Constitution is silent on a particular issue, and thus neither its language nor underlying purposes can provide dispositive answers to contemporary legal issues. In such situations, courts must consider whether they should afford deference to laws enacted by the coordinate branches of government, or by state governments, for the purpose of ensuring that the judiciary does not transgress the limits on its Article III reviewing authority, and reach decisions that encroach on the lawmaking powers of the legislative branch. In other words, when the Constitution is silent, principles of judicial restraint and respect for the democratic process counsel in favor, at least in some cases, of deferring to the judgments made by citizens’ elected representatives.


The confirmation process of Neil Gorsuch underscored the sharp divide that exists between originalism and living constitutionalism. However, as this article demonstrates, these approaches to constitutional interpretation should not be viewed in all cases as competing or irreconcilable. Instead, the utility of either theory should depend on the specific provision at issue (e.g., whether it is ambiguous) and on whether the application of either theory would further democracy’s foundational principles of citizen participation, political equality, decentralization, separation of powers, and individual and collective autonomy.

[i] See, U.S. Const., Art. II, Sec. II, Cl. II.

[ii] U.S. Const., amend. XIV (emphasis added).

[iii] 424 U.S. 319 (1976).

[iv] 381 U.S. 479 (1965).

[v] Id. at 484.

[vi] 410 US. 113 (1973).

[vii] 505 U.S. 833 (1992).

[viii] Id. at 851.

[ix] 539 U.S. 558 (2003).

[x] Id. at 572.

[xi] 135 S. Ct. 2584 (2015).

[xii] See U.S. Const., amend. 1.

[xiii] U.S. Const., amend. VIII.