“Advent creates hunger for the coming of the Kingdom and directs one’s hope toward it.”
–Dietrich Bonhoeffer.
HAPPY BIRTHDAY to actor/comedian Dick Van Dyke. He turned 100 today!
Today I offer you an interesting read on the United States Constitution, the concept of originalism in applying the Constitution, and the importance of resisting the efforts of judges from imposing their own views in cases. People’s eyes will often glaze over when discussing the law–understandably so–and dismiss it as “lawyer speak.” But the concept of the Constitution’s application to laws, and to restrain government is of immense importance. Our Constitution was written for the common man, in language that he could easily understand. Its principles are timeless, and are easily applied to modern times, even though it was written in the 18th century.
The Constitution and its proper application is all that stands between you and tyranny. If you are unable to understand it, support and defend it, then you are dooming yourself and your loved ones to an unspeakable darkness, a Hell on Earth. I commend the following article to those who are interested in our most important founding document.
The Constitution Isn’t Living — It’s Enduring
Why Originalism protects democracy from judicial overreach.
By: Gregory Lyakhov, The American Spectator (December 6. 2025).
Every major question in American public life ultimately returns to a single source of authority: the Constitution. Whether the issue concerns abortion, the scope of federal agencies, the death penalty, or the structure of elections, the answer always depends on what the document allows the government to do or forbids it from doing. More than two centuries after its ratification, the Constitution remains the most powerful legal instrument ever created, not because it adapts to every cultural trend, but because it restrains every branch of government according to principles fixed in its text.
If the Constitution’s meaning could shift with changing values, judicial review would dissolve into judicial supremacy.
The Supreme Court’s central responsibility is to apply those principles faithfully. That responsibility, however, depends entirely on how the justices interpret the Constitution, and for most of American history, the debate has been defined by two competing philosophies: originalism and living constitutionalism. Neither philosophy is anywhere close to perfect, but as the late Supreme Court Justice Antonin Scalia said, “Originalism is not perfect, but it is the lesser evil. The real alternative is rule by judges.”
Scalia understood what most critics of originalism rarely acknowledge: When judges abandon fixed meaning, the Constitution ceases to function as a Constitution at all.
Living constitutionalism rests on the idea that the Constitution’s meaning evolves alongside society’s values, allowing judges to reinterpret its provisions as moral norms change. Many progressive justices embrace this approach because it gives the judiciary greater flexibility to align constitutional law with modern expectations. But this view collapses the moment one asks a basic question: whose values guide evolution?
American society is deeply divided, and there is no single set of moral commitments that all Americans share. To say the Constitution “changes with society” is to say, in practice, that it changes with the values of five justices. The Founders spent months designing a system to prevent the concentration of power in any single institution. Living constitutionalism circumvents those safeguards by transforming the judiciary into an undemocratic legislature, and as Scalia once warned, “If the Constitution means only what the judges say it means, we are no longer governed by the people but by the courts.”
That result may appeal to those who want certain political outcomes imposed nationally, but it undermines the very logic of a written Constitution.
Originalism, despite its many imperfections, preserves the distinction between lawmaking and judging. As legal scholar Robert Bork, widely considered as the father of Originalism, explained during his confirmation hearings, “The judge’s authority comes from the fact that he is applying the law, not his own moral preferences.”
Bork’s originalism emphasized the Constitution’s original public meaning — the understanding shared by the people who ratified its provisions. Originalism is often described as rigid or backward-looking, but the Constitution’s framers deliberately wrote broad principles that could apply to future circumstances. They understood that society would change, but also believed that change must occur through the democratic process, not through judicial invention.
Alexander Hamilton, in Federalist No. 78, emphasized that the judiciary’s role was to exercise “judgment, not will,” because the moment judges exercise will, they become legislators. He argued that the Constitution’s fixed meaning alone prevented the judiciary from becoming, in his words, “superior to the legislative power.”
James Madison likewise warned that “the discretionary power of judges” posed a threat to republican government if it was not restrained by constitutional text. Originalism is the only interpretive theory that respects those warnings.
Judicial review itself — the power to strike down unconstitutional laws — only makes sense if the Constitution has a discoverable meaning. The Supreme Court did not even possess this authority until Chief Justice John Marshall articulated it in Marbury v. Madison. Marshall wrote that it was “emphatically the duty of the judicial department to say what the law is,” but he was equally clear that judges could not reshape the Constitution according to political desires. The Court’s authority depended on its ability to apply the Constitution as written, not to revise it.
If the Constitution’s meaning could shift with changing values, judicial review would dissolve into judicial supremacy. Marshall understood that a written constitution only binds government actors if its meaning is fixed. Once judges begin to treat it as a set of flexible suggestions, the restraints it imposes evaporate. Marshall never claimed the Constitution should be updated by judicial interpretation; he claimed that the Court must enforce the meaning the people themselves ratified.
Living constitutionalism turns the logic of Marbury on its head.
Originalism, by many, is viewed as unrealistic because 18th century authors could not have predicted modern technologies or social norms. But this objection misunderstands how originalism works. The Constitution does not prohibit applying old principles to new circumstances; it prohibits changing those principles. The Fourth Amendment protects people from “unreasonable searches and seizures.” That principle applies to digital surveillance and cell-phone tracking just as easily as it applies to British soldiers ransacking colonial homes.
The First Amendment’s protection of speech extends to social media posts and online platforms, not because the Founders foresaw the internet, but because they established a principle that applies universally: the government cannot restrict expression simply because it disapproves of the message. Constitutional provisions endure not because they evolve but because their principles remain stable.
As Scalia put it, “The Constitution is not a living organism, for Pete’s sake. It’s a legal document.
And like all legal documents, it says what it says and doesn’t say what it doesn’t say.”
There is a big difference between constitutional “literalists” and Originalists. Literalists interpret the constitution for what it says and what the framers, and only the framers, intended. This view would mean that if there is a debate regarding the censorship of an online platform by the government, that censorship would not be protected by the constitution since it does not mention social media.
Literalism is not to be confused with originalism.
Originalism does not prevent society from advancing, it simply applies the constitution’s principles to a modern day situation.
The danger of abandoning fixed meaning becomes clearest in cases such as Roe v. Wade. When the Supreme Court held in 1973 that the 14th Amendment protected a right to abortion, it created a constitutional right without any grounding in the text or the amendment’s original meaning. At the time of its ratification in 1868, most states criminalized abortion, and nothing in the historical record suggests that the amendment’s ratifiers understood it to silently abolish those laws.
Even Justice Ruth Bader Ginsburg, a staunch defender of abortion rights, criticized Roe’s reasoning, arguing that its constitutional foundation was “heavy-handed judicial intervention” rather than principled interpretation. Roe became the clearest example of what happens when the Court substitutes living constitutionalism for constitutional text: seven unelected justices imposed a national policy that the Constitution did not require and that the people never voted for.
Dobbs v. Jackson Women’s Health Organization corrected that mistake by returning abortion policy to the democratic process. Justice Samuel Alito’s majority opinion relied on an extensive historical record showing that abortion was widely restricted when the 14th Amendment was adopted. The Court concluded that because the Constitution did not confer a right to abortion, the issue must be resolved by voters.
Alito was explicit that “the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” That conclusion did not end abortion; instead, it ended the idea that nine justices could impose a uniform policy nationwide.
Even Justice Stephen Breyer, in his Dobbs dissent, conceded that people who view abortion as “akin to homicide” will inevitably believe the law must protect fetal life. His point was not to endorse the majority’s conclusion, but to recognize that abortion is a question of profound public morality — and therefore one that cannot be settled through constitutional interpretation separated from text and history.
Dobbs did not restrict democracy; it restored it. Therefore even if one views abortion as an unconditional right, one can still support the overturning of Roe for the sake of the constitution.
This return to democratic decision-making is essential to understanding why originalism strengthens—not weakens—self-government. When the Constitution is interpreted based on its original meaning, judges have an external standard to guide their decisions. They must justify their rulings by reference to text, structure, and history. They cannot declare new rights or invalidate laws simply because they personally believe a policy is wise or just.
Living constitutionalism, by contrast, compels judges to project their modern-day values onto the Constitution. As Bork warned, this approach “turns the Constitution into an empty vessel into which each generation pours its own beliefs.”
Once judges gain the authority to update the Constitution, it becomes impossible to distinguish legitimate interpretation from judicial policymaking. With this, we would have a country run not by laws but by judicial preferences. In a democracy as large and divided as the United States, that is untenable.
In District of Columbia v. Heller, Scalia authored the majority opinion holding that the Second Amendment protects an individual right to possess firearms. Some claimed his analysis relied too heavily on selective historical sources, and many professional historians disagreed with parts of his reasoning. But as Scalia recognized, perfect historical consensus is impossible. The question is not whether every historian agrees but whether the best available evidence supports a particular public meaning.
In Heller, that evidence included the grammatical structure of the amendment, the common law understanding of the right to bear arms, and early American legal commentary. Justice John Paul Stevens offered a different historical narrative, but as Scalia later noted, “The battle is not between historians; the battle is between interpretive theories.”
Originalism forced Scalia to tie his reasoning to the text and structure of the Constitution. Living constitutionalism would have required only that judges decide whether handgun possession aligns with contemporary values.
It is far better for Justices to debate how to interpret a historical document in order to determine the original meaning of a constitutional provision than to debate their own political beliefs about modern society. Under originalism, Justices at least ground their decisions in text, history, and established meaning. Under living constitutionalism, they instead rely on their personal views about what they believe is best for society, which gives them no principled basis for constitutional interpretation.
Originalism ensures stability because it makes the Constitution predictable. Citizens and lawmakers know what the document requires, and they know that its meaning cannot shift based on the political views of a temporary Court majority. Living constitutionalism creates precisely the instability the Constitution was designed to prevent.
One Court may discover a new right to abortion; another may discover a new right to physician-assisted suicide; another may discover a new limitation on speech. The question ceases to be what the Constitution says and becomes what judges believe it ought to say. As Scalia warned repeatedly, “If you abandon textual meaning, you empower the interpreter.” That empowerment undermines democratic legitimacy because the interpreter is not elected and not accountable.
The claim that originalism is “impossible” because we cannot know the original public meaning of constitutional text ignores how interpretation works in every other area of law. Courts interpret statutes, treaties, contracts, and wills based on the meaning their authors attached to the language at the time of drafting. They consult dictionaries, historical usage, legal documents, and public commentary to understand how specific terms were used.
As Scalia observed, “Nobody would interpret a will according to the desires of the living rather than the intent of the dead.” The Constitution is no different. Its age does not render it meaningless. Its status as supreme law requires that its meaning be discoverable, even if history is complex. The alternative is to allow judges to mold constitutional text to fit their policy preferences — the very problem a written Constitution was adopted to prevent.
The Constitution has also become an extremely difficult document to change, and Originalism contributes to that. But that difficulty is intentional. The Constitution is designed to require overwhelming consensus before its foundational principles change. If society cannot agree broadly on a constitutional amendment, it means the proposed change lacks sufficient democratic legitimacy to justify rewriting the nation’s foundational law.
James Madison defended this structure because it ensured the Constitution reflected the considered judgment of the people rather than momentary passions. “Frequent appeals to the people,” he warned, “would carry an implication of some defect in the government.” The Constitution’s endurance is the precise feature that allows the United States to maintain political stability, even as other democracies collapse under the weight of rapidly changing norms.
Originalism respects the amendment process; living constitutionalism attempts to bypass it.
Another recurring argument against originalism is that the Framers themselves could not agree on every constitutional provision. That is undeniably true, but those disagreements were resolved through ratification. Once ratified, the public meaning became authoritative. Hamilton and Madison disagreed on many issues, yet the meaning of the Constitution did not remain suspended between their opposing beliefs. It was fixed by the understanding adopted by the ratifying public.
Moreover, the Framers anticipated that future generations might interpret provisions differently, which is precisely why they embedded broad but durable principles rather than enumerating every conceivable application. As Scalia wrote, “The Constitution that I interpret and apply is not living, but dead — meaning it does not change.”
But he immediately added the point most usually ignore: “My Constitution is a living document in the sense that it lives in the democratic process.”
The danger of abandoning that process becomes sharper when considering rights that genuinely are not mentioned in the Constitution. Many Americans, for example, support same-sex marriage. But that does not change the Constitution’s text. The Constitution does not address marriage at all, and therefore it does not create a national rule governing marriage policy.
Under an originalist view, this question belongs to the democratic process, not the judiciary. That does not mean the Court cannot strike down laws that violate explicit constitutional guarantees — such as laws criminalizing speech or restricting religious exercise. But it does mean the Court cannot fabricate new rights simply because it believes society has shifted.
As Scalia wrote in his dissent in Obergefell v. Hodges, “When the 14th Amendment was ratified in 1868, every State limited marriage to one man and one woman. That resolves these cases.” One can support same-sex marriage and still believe the Constitution does not require it. That is the essence of originalism: judges apply the law as it is, not as they wish it to be.
Living constitutionalists sometimes respond that originalism would have prevented landmark decisions like Brown v. Board of Education. This argument misrepresents both original meaning and the history of Reconstruction. The framers of the 14th Amendment adopted a broad principle of equal protection intended to dismantle racially discriminatory state laws. There is substantial evidence that segregation was inconsistent with that principle.
The Court in Brown interpreted equal protection in light of its historical purpose, not in spite of it. As Michael McConnell — one of the nation’s leading constitutional scholars — has shown, the Reconstruction Congress repeatedly took actions inconsistent with segregation, including integrating public schools in the District of Columbia. Nothing in Brown required abandoning original meaning. It required enforcing it.
The deeper truth is that originalism is not “conservative” or “liberal.” It is a method of constitutional interpretation. A justice committed to originalism may reach conclusions that conflict with their policy preferences because loyalty to the text demands it. Scalia often voted in criminal procedure cases in ways that angered conservatives because he believed the Constitution’s protections for criminal defendants must be enforced as written.
In Crawford v. Washington, Scalia authored an opinion expanding Sixth Amendment confrontation rights, relying heavily on historical evidence that the Framers rejected judicial discretion in favor of strict procedural guarantees. His originalism did not consistently yield conservative results; it yielded results grounded in history and text. That is precisely why originalism has credibility: it anchors judicial decision-making in principles external to the judge.
Breyer himself, who favored a Living Constitutionalist approach, acknowledged that judicial power requires limits. “We must guard ourselves,” he wrote, “against the temptation to substitute our own moral beliefs for the principles embedded in the Constitution.” Even he recognized that the judiciary becomes dangerous when unconstrained by text.
The United States is one of 96 democracies in the world, but few democracies have maintained constitutional stability as successfully. That success comes from a written Constitution that channels political conflict through democratic processes rather than judicial improvisation.
Marbury v. Madison established the judiciary as an independent guardian of that Constitution, but Marbury only works if the Constitution’s meaning is fixed. If judges can revise meaning through interpretation, the power of judicial review becomes indistinguishable from legislative power. That collapse would place the nation in the same position the Framers feared: governed not by laws but by the will of nine individuals. The entire system of checks and balances — the Presidency, Congress, the Court — depends on the assumption that the Constitution constrains all three.
The final reasoning for Originalism comes down to one fundamental question. Who governs the country: the people or nine unelected judges?
In practice, Living Constitutionalism ultimately answers that judges govern. Originalism answers that the people do. It restores constitutional authority to the democratic process by ensuring that judges interpret the Constitution rather than rewrite it.
As Scalia said repeatedly, “The Constitution belongs to the people, and the people have not authorized the courts to change it.”
A Constitution that can be rewritten by judicial interpretation is not a Constitution. Far from killing the Constitution, originalism is what keeps it alive.
GFK
Observations From The Fifth Estate 