Introduction

Anytime Americans debate aspects of the Constitution, the underlying, most basic difference of opinion ALWAYS boils down to the question of whether the Constitution is being interpreted from an “Originalist” position or a “Living Document” position.

Always.

Even if people don’t realize that they are disagreeing for these two reasons, it always comes down to this difference of perspective. Well, that’s a blanket generalization you might say, by way of rebuttal. Allow me to prove it to you. But first, let me elucidate the differences between the two methods of interpretation.

The Originalist Position

Let’s start with the Originalist method. The idea here is that what is meant is the original interpretation or intent of the document from the perspective of the people who wrote it. This is an entirely valid method of interpretation of the Constitution, the Bill of Rights, and the Declaration of Independence. “Why?” you might ask (if you are a fan of the Living Document method).

Because, for the very simple reason that the people who wrote it understood it and intended for it to mean exactly what THEY intended it to mean. No person who has a lick of sense ever INTENDS for others to interpret or understand something from a different perspective than they themselves understand it, EVEN IF they logically and intellectually KNOW that others WILL understand and interpret that something in an entirely different way.

Even if a person KNOWS that someone will immediately, and every time, interpret something differently than the intent, they still communicate their intent in the way that seems to best represent their understanding. Knowing that another person might interpret it differently might make them modify it a bit to account for that viewpoint, BUT the statement MUST still coincide with their own internal understanding.

This is human nature. It is psychology. It is biology. It is sociology. It is part of the operating system that comes pre-installed in our brain, and the same programming that is reinforced by all of our societal structures from the very moment of birth.

A person could easily argue that the intent of the original speaker/author/inventor is the ONLY proper way to think about, or understand, or use something. And they would be able to make a VERY strong case for this argument.

So if the case is so strong for the Originalist method of interpretation, then why are there people out there who remain unconvinced of the method’s validity? These people (in reference to the question of US Constitutional interpretation) are called the Living Document proponents. So what is the Living Document position and how do they justify their stance on this topic?

The Living Document Position

Well, it’s easy. Their argument stems from several aspects of the US Founding Documents themselves. Let’s take them in chronological order. First, the Declaration of Independence (DoI).

The DoI is written in future perfect tense and uses numerous real situations that are phrased as hypotheticals. What does this mean in non-English professor speak? It means the document is written to be understood as “for use in the future” by our descendants while simultaneously being used to justify our actions in the present moment (from the perspective of the original authors). If a document is meant to be used in the future by persons unknown to the authors, then it MUST be understood as a “living” document. Here is an example of the future tense and hypothetical future use all in one sentence:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Notice the phrasing: …it becomes…to dissolve…to assume…[several things] entitle them…they should declare. All of these are future tense and suggestions to DO something in the future. And, like I mentioned before, they are simultaneously being used as justification in their present time (of the writers and signatories in 1776 USA) to support the reasoning for their actions. Obviously the writers and signers of the DoI intended the Document for FUTURE use as well as use in their present time. It is meant to be an example of the “proper” method for socio-politically separating one group of people from another group of people.

Let’s look at the next of the three major documents…the Constitution. This is the single most important document of the three. It is the basis for the ENTIRETY of our government, legal system, and society all rolled into one document in just a handful of pages.  Our legal code is now literally millions of pages long in our attempt to interpret this document that is less than 10 pages in total. (This is yet another argumentative aspect that shows that the Constitution is actually a living document).

As you can see below, like the Declaration of Independence, we see that the writers of this document are using the future infinitive form of the “be” verb.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This method of phrasing is continued throughout the entire document. When discussing how they intend on setting up the infant government, the phrasing is all “shall be” and “will be” and “should be.” In fact, if you parse the US Constitution, you might come to think that the most common word the writers used was “shall.” It seems that this word is in nearly every sentence in the entire document. They use it FREQUENTLY. They use infinitive future tense like I (and my fellow soldiers and veterans) use the F-bomb. This word (shall) in and of itself is a future directive command word. It means that some specific action MUST be done in a specific way at some (unspecified) point in the future.

There is an argument about the differences between the language used in the late 1700’s and our present modern-day language. People might be of the opinion that “shall” does not mean the same thing to the Founders that it means to us in the present day. The argument may be something like, “We use shall to mean something that someone should do in the near future, but in the past they used it in a different way.” For many words this is absolutely the case. For example, the word “bully” is now used in reference to someone that pushes around (physically, mentally, or emotionally) another person. As recently as 100 years ago it meant something that was superb or wonderful. Teddy Roosevelt was a well known user of this version of the word “bully.” However, the word “shall” is NOT one of these words. Neither its meaning, nor its usage, has changed significantly over the intervening time. And while perusing these three founding documents, a reader might find several words that are not in common usage at the present time, overall, there is not THAT much difference in the language between then and now.

Now for one final point about the language used by the Founders. These guys were (at their time) among the smartest, most educated people in our budding nation AND the world. They were well read on all of the most cutting-edge technology, science, and philosophy at their time. Many of the founders held the equivalent of a post-graduate (Masters or even Ph.D.) degree in more than one field of study.

Now let’s move on to the last of the three founding documents…the Bill of Rights (BoR). The BoR was originally intended (there’s that Originalist position again) to be part of the main body of the Constitution, but numerous debates took place, and the collective decision was made to make it a separate but attached document to the Constitution so as to not make the Constitution too long. Along with ongoing debates about the length, debates also took place about the fact that the Constitution described HOW the government was to be set up, WHAT the government had power over, HOW that power was split, HOW representatives and the president and judges would be placed in those positions, and etc.

What the Constitution did NOT do was explicitly enumerate the rights of the people, the electoral body, the body with which this new nation had imbued all of the political power. This electoral body is where the authority the government was empowered to use comes from…this collective body of voters and citizens. That’s where the Bill of Rights comes into the picture. This is the list of the Rights of the Individual Citizen. Rights the government cannot take away (except in SOME, FEW, LIMITED circumstances). But not only does this document list the rights of the people, it also specifically limits the abilities and power of the government over that people.

Let’s first examine the wording of the Bill of Rights:

Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

OH! here’s that “shall” word again. The whole list of the first 10 amendments is a list of “shall” and “shall not” on what things Congress can and cannot do vis a vis citizens’ individual Constitutional rights. Every single one of the first 10 Amendments is a “shall” or “shall not” statement. And as we have already thoroughly established this wording is future tense (but is also applicable to the present time of its conceptualization, writing, and ratification…1776-1789). The Founders’ ORIGINAL INTENT is also for all three documents to be “LIVING DOCUMENTS.”

Conclusion

So when people make an exclusively Originalist or exclusively Living document argument it is demonstrably provable to anyone with even a lick of understanding of English that any person making an argument EXCLUSIVELY from one of those perspectives is only making HALF an argument.

The Founders INTENDED their original intent to be the definitional basis and operational understanding of the concepts, ideas, methods, and practices they discussed, BUT they ALSO INTENDED that future citizens and representatives should be able to modify these very same ideas and methods and the very wording of the documents themselves. If they had NOT intended this to be the case they would NEVER have implemented a method to change the very wording of the documents themselves. This is what the Amendment Process is. It proves that the Constitution AND the Bill of Rights were both intended to remain Living Documents for as long as the USA was a going concern.

The Founders are often called geniuses and men of vision. Their true genius and their true visionary status is not clear UNLESS you understand that what makes them worthy of such descriptors is that they INTENDED from the very start that their documents would ALWAYS be both Originalist AND Living at the same time in perpetuity.