Question

Explain the two theories of constitutional interpretation, Originalism and Living Constitution. Which theory do you agree with most? Explain your reasoning.

Answer 1

Constitutional Interpretation

It expounds the meaning or the application of the constitution and provides the people who want to use the constitution with the strategies and principles to interpret it in different ways according to the circumstances and time.

Theories

• Originalism Constitution: In this theory, the constitution is interpreted in the present context with exactly the same meaning as when it was originally framed. The original meaning and understanding of the constitution are not lost in this way. It also ensures that the contemporary scenario can have the element of predictability thus making the understanding of the case simple and not leaving any important point hidden.
• Living Constitution: In this theory, the constitution is interpreted according to the changing times and events. This may change the original meaning of the constitution when it was first enacted. It evolves, forms a dynamic view as our society or the world changes. Usually, this takes place without any formal amendment. The time before and time now is completely different and the statement of the constitution should also relate according to the present lifestyle and cases of people.

In my opinion, the Originalism theory seems to be the best approach to the constitution. Why because even if the time is changing and the constitutional meaning is evolving, its original meaning will always remain important.

Take First Amendment Protected speech for example. The original context was for speeches in newspapers and open streets. But the meaning also applies to internet speech now. Just like this, evolution will always be there but the original meaning will not be lost which governs the protected speech.