In what proved to be a stroke of sanity in this election, the first segment of the final presidential debate contained actual policy positions. It broke down as the two hours wore on, as the previous two had done, in the totally expected manner of this election cycle. But, Donald Trump did present some opinions about the Supreme Court, and it’s worth it to examine them fully.
Trump promised during the debate that he’d nominate justices who will, “interpret the Constitution the way the founders wanted it interpreted”. This isn’t out of the ordinary in itself — the theory of constitutional interpretation he referenced here is known as originalism, and is widely accepted in legal circles. Its most famous adherent was the late Justice Scalia, and this theory of interpretation is evident in all of his opinions. The basis of the theory is simple; originalists set out to interpret the Constitution exactly as the writers of it would have interpreted in their own time. Justice Scalia famously had his law clerks use dictionaries from the 1790s in order to derive words’ meanings.
The theory hinges around the central idea that the Constitution is invalid if it is seen differently than it would have been in it’s time. Most originalists believe the Constitution is a “dead” document — Congress may add amendments or repeal them, but that which is currently in the Constitution should not be read as anything other than exactly what the words on the page say. This theory falls short in many respects, and fails to respect — or even recognize — the penumbra rights of citizens.
The fact stands that the accepted standard of the twenty-first century is far removed from that of the eighteenth, and, as such, flexibility within the Constitution itself is imperative. Dred Scott v. Sanford was considered acceptable – and even moral – under the Constitution in 1857, but today that decision would never have been considered valid for even a moment by even the firmest of originalists. A hypothetical example that best describes the nature of originalism is that of flogging. In 1789, a man being flogged for theft would have been acceptable and not considered “cruel or unusual” under the Eighth Amendment. However, today, most people would agree that being flogged for a crime is both cruel and unusual. To the originalist, it is neither — it was acceptable under the Constitution in 1789, and the staunch originalist justice would say it is then acceptable now.
Assuming for a moment that Donald Trump actually understands the theory he put forth at the debate, it’s a safe guess he doesn’t realize just how disastrous originalism is for the country, especially at a time when the Court will be deciding critical cases. The theory is wrong to believe the Constitution is a “dead” document — it must be interpreted as we read it in 2016 as opposed to 1789. It was impossible for the writers of the Constitution to foresee every problem or every issue of law that would arise under their government. The idea of originalism limits justices to the eighteenth century, and forbids them adapt the document that is inherently required to adapt.
However, as with most things, there’s a better, more solid option: the moral reading. Predominantly outlined by Ronald Dworkin in his book, Freedom’s Law: The Moral Reading of the Constitution. This theory, unlike originalism, views the Constitution as “living”. A valuable tenet of the moral reading is the allowance for projection from the stated idea within the Constitution. This is at the heart of why the moral reading is the most democratic, as this allows the Court to ensure penumbra rights are preserved and protected. One such example should be in Griswold v. Connecticut, where the Supreme Court was able to defend an unenumerated right to contraceptives using the Fourteenth, Ninth, and First amendment. This ability to protect the substantive rights of citizens not expressly guaranteed by the original Constitution by expanding upon implied moral principles is what grants the moral reading its validity in contemporary Court. The true pride of the Constitution we have is, then, that the document itself is adaptable; how it is interpreted may very well, and rightly should, change throughout time, but there is still the years upon years of material and standard to rely upon, while at the same time allowing for extrapolation as to how a piece of text older than anyone alive can relate to issues unheard of in the Framers’ time.
While neither candidate has explicitly named these theories or endorsed them, their words during the debate about the Supreme Court can be linked to the judicial philosophies herein. One might criticize this as purely political — it’s true most moral readers are liberal and most originalists are conservative, but both theories stand on their own without politics becoming too entrenched in the legal system. It is crucial to recognize that, at the heart of this issue, lies the question of what the Constitution should do. The answer to that question is deceptively simple: it should protect liberty and equality. Certainly there is a sizeable portion of the document devoted to defining how the government of the United States should function, but even in these parts it is apparent that the goal of it all is to protect and preserve the citizenry the Framers had just fought (and won) a war over. Though the word “equality” is not found anywhere within the Constitution, it must be understood to be a tenet of functional democracy such a society cannot survive without. No constitution can be called democratic without supporting equality and liberty – if any small portion of citizens is left behind by governmental action or Constitution and law, there can be no way to call the government a democracy. Even if what becomes law represents the will of those who can (and do) participate, if not all are able to participate, it cannot possibly represent the will of the people as a whole, or even as a majority, due to the fatal flaw that is a lack of equality. As such, equality and liberty must be at the center of any Constitutional theory of interpretation. Both theories and both candidates claim that their theory is the best to defend democracy and liberty, but in the end it will be the voters on November 8th and the next President who will decide which of the two will guide the Supreme Court in the years ahead.