Non-Originalist Interpretation of the U.S. Constitution

Introduction: The Originalism vs. Non-Originalism Debate

A substantial amount of debate has occurred in recent times regarding questions of legislation and the interpretation of the Constitution. The two primary factions in this debate are the originalists, who are largely in favor of a literal interpretation of the Constitution and the intentions of its founding authors, and the non-originalists, who are more likely to consider the practical outcomes of such a literal interpretation while recognizing other factors, such as precedent-setting via the judicial branch of government and conceptions of universal law. Although there are logical reasons to favor arguments put forward by both factions, a thorough analysis of the pertinent issues at stake allows one to see that the non-originalist perspective is the one best adapted to suit contemporary American society.

The Limits of Originalism in a Changed Society

One of the most prominent arguments made by those in favor of originalism is that legislation in the United States needs a firm foundation — such as the Constitution — to prevent the emergence of both situational ethics and situational laws. Originalists strive to justify contemporary legislation in terms and intentions determined by the original authors of the Constitution. Although it is commendable to ground legislation in a foundational document, proponents on both sides of the debate must remain aware that the Constitution was written hundreds of years ago, and that the world it envisioned has changed drastically.

During the time between the writing of the Constitution and the present day, numerous changes have occurred in the way American society functions. One of the most significant changes concerns the status of minorities, and African Americans in particular. Under the original text of the Constitution, enslaved people were counted as only three-fifths of a person. Contemporary society neither upholds chattel slavery nor such a diminished regard for African Americans, and this reality mandates departures from the original document — departures that would be impossible if originalist thinkers had their way.

Judicial Precedent and the Case of Brown v. Board of Education

Non-originalism also allows for the consideration of judicial precedent when upholding or striking down certain laws as unconstitutional. For example, the landmark Supreme Court decision in Brown v. Board of Education determined that the separate-but-equal schools mandated by the earlier Plessy v. Ferguson ruling were inherently unequal. A strictly originalist interpretation of the Constitution would not have supported the ruling in Brown, and would have permitted an inherent inequality in the nation's school systems based upon race.

Furthermore, the precedent established by Brown ensured that desegregation of the nation's school systems would proceed on a national basis. Without the binding force of that precedent, countless additional lawsuits would have been filed across different states and school districts as plaintiffs relitigated the same fundamental question in different jurisdictions. A flexible, non-originalist reading of the Constitution therefore allows it to, as one scholar observes, "match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities" (Linder, 2012).

Conclusion: Non-Originalism and Constitutional Spirit

By encompassing a view of the Constitution that is slightly more mutable than that of originalism, non-originalist interpretations are able to uphold the spirit in which the document was initially conceived. One of the key principles of the Constitution was that it guaranteed an equal pursuit of happiness, freedom, and life among all residents of the United States. Only a non-originalist reading of the Constitution makes this ideal a genuine reality for minority groups within the country.