Test Prep Courses/MTEL Political Science/Political Philosophy (48) PrepCourse
- AuthorReed Hepler
Reed Hepler received an M.L.I.S. from IUPUI, with emphases in Digital Curation and Archives Management. He received a Bachelor’s in History from USU, with minors in Religious Studies and Anthropology. He also earned a Certificate in Museum Studies. He has worked in museums, libraries, archives, and historical sites for the past four years.
View bio - InstructorDOUGLAS HAWKS
Douglas has two master's degrees (MPA & MBA) and a PhD in Higher Education Administration.
View bio
Learn about the main theories of constitutional interpretation: originalism, textualism and living constitution. Compare these types of constitutional interpretation.Updated: 11/21/2023
Frequently Asked Questions
What are the different types of constitutional interpretation?
There are three main types of constitutional interpretation. They are textualism, originalism, and perceiving the Constitution as a living document.
What is constitutional originalism?
The originalist theory of constitutional interpretation is one of the earliest theories. The basic tenet is that the most effective interpretation of the Constitution considers the original intent of its writers.
What is the difference between originalism and pragmatism?
Originalism focuses on the original intent of the writers of the Constitution. Pragmatism considers the possible consequences of changes to the Constitution.
What is an example of interpreting the Constitution?
An example of interpreting the Constitution is the perspective that since the Second Amendment states that the right of citizens to bear arms should not be infringed upon, gun sales should not be restricted. This is an example of originalism.
What is the living constitution approach?
The living constitution approach considers the Constitution as a malleable document. It states that as the will of the people changes, the Constitution should change with it.
Table of Contents
- What is Constitutional Interpretation?
- Types of Constitutional Interpretation
- Constitutional Interpretation Examples
- Lesson Summary
Constitutional interpretation refers to the theories and methods politicians, political scientists, public servants, and others use to assign meaning to the constitution. There are many different political theories used in constitutional interpretation. Therefore, the same phrase in a constitutional document can mean a myriad of things depending on how it is interpreted. Constitutional interpretation allows individuals to justify their actions based on the constitution of a state and therefore legitimize their policy decisions. The three main types of constitutional interpretation are textualism, originalism, and perceiving the constitution as a living document.
Who Interprets the Constitution?
Constitutional interpretation can be performed by everyone. However, certain people's interpretations of the constitution are seen as authoritative. Usually, these individuals have significant political authority. In the United States, the people whose interpretations of the American Constitution are deemed to be authoritative are:
- Judges
- Lawyers
- Legislators
- Scholars and political scientists
Each of these individuals, and their interpretations of the Constitution, have major effects on the policies in the nation and individual states. As politics can affect other facets of life in the United States, constitutional interpretation can also affect the economic, religious, social, and other spheres in America.
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The three main theories of constitutional interpretation in the United States are textualism, originalism, and living constitutionalism. Textualism looks specifically at the text of the document and is very literal in its interpretation. This perspective is used to ensure strict adherence to the language of the Constitution. The other two theories will be explained in greater detail below. Users of these theories will use varying methods of constitutional interpretation, depending on what their political goals are.
The Theory of Originalism
The theory of originalism states that the most efficient and reliable method of constitutional interpretation is analyzing the original intent of the people who wrote the Constitution. These people are often referred to as the ''Constitutional Framers,'' or the ''Founders'' of the United States. This means that originalists only support laws and policies which they believe the writers of the Constitution would have supported. Originalism is fundamentally opposed to the creation of amendments because any change to the Constitution supposedly goes against the document's original intention.
Example of Originalism
An example of an originalist approach to interpreting the constitution can be seen in the conservative response to gun control laws. Originalists would state that the Second Amendment supports the right of the people to bear arms and that the government cannot restrict that right. Therefore, gun sales should not be restricted by the government.
The Theory of Textualism
Textualism is another main method of constitutional interpretation. According to textualism, the most reliable and consistent way to interpret the constitution is not to interpret it. Rather, the word-for-word text of the Constitution should be one's guide. This is the most literal of possible ways to interpret the Constitution.
Originalism vs Textualism
At first glance, originalism may seem to be the same as textualism. However, originalism goes beyond simply looking at the written word in the Constitution. It involves reading into the text with the aid of historical context to determine the priorities and goals of its writers.
Example of Textualism
An example of a textualist interpretation of the Constitution is the literal reading of the Second Amendment, which many conservatives use. The text of this part of the Bill of Rights states that the right of the citizens of the United States to keep and bear arms ''shall not be infringed.'' Supporters of a textualist interpretation of this phrase would say that the government could not do anything to take individuals' firearms away from them.
The Theory of Living Constitution
Of all the theories of constitutional interpretation, perceiving a living constitution is the most flexible and malleable. It is also one of the more modern ways to interpret the constitution. The definition of ''living constitution'' is a constitution that changes as times change. Adherents to this theory of interpretation state that new political necessities and changes in the culture and society of America necessitate a change in the American government.
Originalism vs. Living Constitution
Constitutional interpretation in the context of originalism may be broader than textualism, but it is considerably narrower in scope than perceiving the constitution as a living document. For example, originalists strongly oppose the passage of amendments. They state that changes to the constitution will detract from the original intent of those who wrote the Constitution. In contrast, living constitutionalism supports and encourages the passage of amendments.
Living Constitution vs. Textualism
Living constitutionalism and textualism are the two theories of constitutional interpretation that are farthest apart ideologically. Whereas textualism states that the literal text of the Constitution is the most important aspect of the document, living constitutionalism states that the most important aspect of the Constitution is how it can direct the current government. They view the Constitution as being a malleable expression of the will of the people of the United States. Living Constitutionalists view the Constitution as a populist tool.
Example of Living Constitutionalism
An example of living constitutionalism is supporters of the Equal Rights Amendment. This proposed amendment would enshrine equal rights for women in the United States Constitution. Supporters state that the amendment is fitting for a time in which women are beginning to be recognized as equals in American society.
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Examples of all types of constitutional interpretation can be found in all sorts of contexts. The sections below will examine one issue in the context of each of the three major theories of constitutional interpretation discussed in this lesson.
In 2015, the Supreme Court ruled that laws limiting marriage to heterosexual relationships were unconstitutional. This important ruling caused many people to react both positively and negatively. The perspectives of all three theories will be discussed below.
Originalist Interpretation Example
The originalist constitutional interpretation of this issue would be that same-sex marriage would undermine the original societal systems and institutions. They would state that because the societal norm at the time of the Constitution was heterosexual marriage, there should be no change in the law but a change in the norms.
The originalist interpretation would be seriously limited in the context of this issue because it did not exist at the time of the writing of the original Constitution. This gives originalism a significant limitation that living constitutionalism does not have. At the same time, however, it can be more flexible than textualism, which insists on a word-for-word reading of the Constitution.
In 2012, Supreme Court Justice Antonin Scalia stated that the meaning of the Constitution does not change according to the will of the people. Rather, ''it means what the people understood it to mean when it was adopted.''
Textualist Interpretation Example
The textualist constitutional interpretation would state that there is no text in the Constitution regarding marriage, so the question of the state of marriage does not belong to the federal government but the states.
Textualism is perhaps the most rigid of the three theories, and this gives it significant limitations. Originalists can offer some non-textual interpretation, but textual interpreters must rely exclusively on the written word of the Constitution.
Supreme Court Justice Gorsuch has repeatedly stated that ''only the written word [of the Constitution] is the law.'' Although he is a conservative, he has used textualism to support the rights of members of the LGBTQ+ community in several instances. His ideology and practices demonstrate that interpretation of the Constitution can cross ideological and party lines.
Living Constitution Interpretation Example
As the definition of ''living constitution'' is ''a constitution that changes with the changes in its people,'' this theory would be the most adaptable for this issue. Living constitutionalism would state that the allowance of same-sex marriage is constitutional because the public supports it and the Constitution is a tool of the people.
Those who believe in a living constitution will have the least restriction on their perspectives regarding this issue. They are bound by neither the written text of the Constitution nor the supposed original intentions of its writers. They can propose whatever amendments they feel suit the needs and dominant views of the citizens.
In 1976, William H. Rehnquist stated that ''the people are the ultimate source of authority… in this Nation.'' He was a prominent advocate for the amendment of the Constitution to fit the needs and movements of the citizens of the United States.
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There is a multitude of theories regarding constitutional interpretation. The three most major theories are textualism, originalism, and regarding the Constitution as a living document (a theory known as living constitutionalism). Originalism states that the most accurate perspective of the Constitution is the original intent of its writers. Textualism states that the only correct way to interpret the Constitution is to read it word-for-word. ''Living Constitution'' or ''living document'' interpretation states that as the people of the United States change, the Constitution should be altered, or the way the Constitution is interpreted should change.
Support for the living constitutionalist theory of constitutional interpretation stems from the fact that there have been several major changes to the United States Constitution since it was first written. The provisions that only males could vote, only property owners could vote, and that each enslaved person got three-fifths of the vote have all been changed. Originalism interprets the Constitution so that the perspective of the writers can be enforced in the present day. For example, they would state that the Second Amendment supports the uninfringed right of citizens to bear arms. Therefore, gun sales can not be restricted by law. In essence, the main method used by textualists is the reasonable person text, which interprets the text as it is written, without any regard for intent, context, or extrapolation.
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Video Transcript
Setting up the Debate
The political system of the United States and the foundation of all U.S. laws come from the Constitution—a document that was written over 200 years ago. But things have changed since then. The challenges faced by a newborn country and the world were vastly different than they are today.
This begs an important question: How do we apply the principles in the Constitution to our current-day legal issues? Do we interpret every word literally? If so, what about the original Article 1, Section 2, that counted each slave as 3/5 of a vote? That was changed. So, if we can identify the intent of the authors to today's issues, what would the founders say about abortion, gun rights, or internet surveillance?
Interpreting the Constitution is a very sensitive and controversial topic. As is normally the case in political issues, there are extremists on each side and many more moderate solutions somewhere in the middle. Let's talk about the three primary views people take today: textualism, originalism, and the living Constitution. After we define these three views, we'll analyze the Second Amendment using each approach.
Textualism
Textualism suggests that the meaning of a written law shouldn't consider the intent behind the law or the circ*mstances being applied; instead, the text should be read as it is written and interpreted in the most reasonable way possible. It's not so strict as to assign the dictionary definition to each word, but it relies on the reasonable person's interpretation of the text to determine its meaning.
Originalism
Originalism is an approach that looks at the Constitution and believes that it was written exactly as intended and should be applied as written. As discussed earlier, this creates a problem with parts of the Constitution that clearly were based on practices that were acceptable in the late 1700s (such as the right to vote only given to white males who owned land).
But amendments addressed many of those issues, and the Tenth Amendment specifically says that any issue not addressed in the Constitution should be left to the states. So, an originalist would say we don't need to worry about applying the Constitution to changes in society because the Tenth Amendment comes into play.
A Living Constitution
Those who believe in a living Constitution believe that the authors of the Constitution intended for us to identify what the Constitution says, consider other writings, and put those writings into the context of the time. When those intentions are identified, we can apply those same intentions to current-day situations. Essentially this is the same as applying the ''spirit of the law,'' even if it means we change or contradict the 'meaning of the law.'
An Example
To really see how each of these views can result in very different interpretations, let's look at the Second Amendment. It reads:
''A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.''
Probably the easiest interpretation to apply would be that of the originalist. The Second Amendment says that the people have the right to bear arms and that it's a right that can't be infringed. It also says a well-regulated militia needs to be part of a free country. So, the originalist can simply say guns are legal. They would claim that laws against guns infringe on the right to own a gun, so such laws would be unconstitutional.
While the originalist would have one perspective, someone applying textualism might have another opinion. It's pretty clear that the Second Amendment sets forth the need and allowance for, a ''well-regulated militia.'' To most people, this refers to the armed forces. They are certainly well-regulated, have strict entrance requirements, and Congress and the President are both involved in determining when, and how, the ''militia'' acts.
The second part might be a little more difficult. Obviously, the amendment states that people have a right to bear arms, but what does ''…not be infringed…'' mean? Do required background checks infringe on those rights? Do registration requirements infringe on those rights? These are the questions that would come from a textualism approach to the Second Amendment.
The living document approach would agree with the other approaches on the first part of the Second Amendment, but when it comes to the right to bear arms, the living document might change that significantly. When the Constitution was written, guns were single-shot, with manually loaded buckshot. A single shot rifle is very different from a semi-automatic assault rifle.
These assault weapons have become problems in recent years, as mass shootings continue to occur at schools and public places. Should the Second Amendment include the right for anyone to own an assault rifle? Someone applying the ''living document'' standard might say no, because when the Constitution was written, guns were much less dangerous—and as guns have become more complex, we need to make the regulations around guns appropriately complex.
Lesson Summary
All right, let's take a moment to review what we've learned. As the central document that defines our country's governmental structure, responsibilities, and the rights of the individuals, it's important that we live by the Constitution. However, it was written over 200 years ago, so one person might say it's a living Constitution, and we can't interpret every word exactly as written. On the other hand, a follower of originalism could make the argument that the Constitution was written how the authors wanted it, and we need to stick to exactly what they wrote. Finally, applying textualism would mean that the situation or context in which it was written would not be considered, and instead, our current definitions and meanings would be applied to the text.
Supreme Court justices take different approaches on this, and it often determines the outcome of important cases. Understanding these approaches is an important step in understanding the role of the Court, and ensuring we honor the Constitution while acknowledging the challenges we face today.
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