[MUSIC] We've looked at every article of the original constitution. We're going to go into them in more detail in just a bit. And we're going to talk about the amendments too, which we haven't gotten to yet. But there's a question to be asked before we get there. How do we know what the Constitution means? The people who wrote it believed lots of things that we don't believe now. They believed it was okay to have slaves, to deny the vote to free blacks and women. They would've been astonished at the suggestion that a man could marry another man. And we have amendment about some of things. So in some ways our Constitution is different from the framers Constitution. But in some ways it's the same. And so the question arises, does the fact that our values have changed mean that our understanding of the Constitution should change? Or is the meaning fixed for all time by the understanding of the people who wrote and ratified it. This is one of the big theoretical debates in constitutional law. If you spend time with law professors, you'll hear them talk about it a lot, so does Supreme Court justices. I'm going to suggest to you, that in fact the whole disagreement is based on a misunderstanding. Then we can clear up the issue pretty easily. But first, let's give the two sides their say. Originalists, the people who believe that the meaning of the Constitution doesn't change, have a pretty straightforward argument. The Constitution or some part of it gets enacted at a certain time, at that time, it has a particular meaning, and meanings don't change, they're set in stone. If you want to change the constitution, article five tells you how to do it. Go through the amendment process. Here's Justice Antonin Scalia with more. >> The major division, not just between the justices on the court but, but in, in American, jurisprudence, generally. That is, there are those who think that the Constitution is to be interpreted in such a way to, as to keep it up to date. That is to say, it does not all, it does not mean, today, what it meant when it was adopted. Some of its provisions change in order to keep up with the times. My friend Justice Breyer has that view. The other view which is held by people who were called Originalists, and I'm one of them, is that the Constitution doesn't change. If you want to change it there is an amendment provision amend it. It's not up to the Supreme Court to write a new constitution by deciding that things that that never were there all of a sudden are there. I'm putting it rather tendentiously I think. But, those are the two basic, basic approaches. >> What's the argument on the other side? People who favor the evolutionary approach, or what's sometimes called the Living Constitution, believe that cases don't need to be decided the same way today as they would have been when the relevant constitutional provision was adopted. Why not? Well they're often not all that clear. But the basic idea is that the constitution was intended to last for a long time and it has to grow with our changing society. Here's Justice Breyer with more on that. >> And therefore I look quite a lot to purposes or values and consequences and the danger of my approach, which you've just heard iterated is that I would substitute my view of what's good for what the constitution is about. So I have to take care not to do that. So I write down my reasons very carefully so others can criticize and amazingly enough they do criticize. And the danger the other way is in my view. We separate the law and the constitution from life. Too rigid, it's got to be, if it's going to be lived for a thousand years brought down to the life of people today, which means you have to look how these values are applied to today's circumstances. >> That's vague and it's not all that convincing I think. But if you ask what the Supreme Court has done, the answer is that it seems to have followed the evolutionary theory. States used to segregate their public schools by race. They used to segregate their railroad cars. They used to ban interracial marriage. They used to say women weren't allowed to be lawyers. And Court said that the Constitution allowed states to do all those things. But then, without a change to the words of the Constitution, the Supreme Court said no, states can't do that. So one point for the evolutionary view, it's what the Supreme Court has done. Another point is what the Supreme Court is going to do in the future too. There's no way that the nation would accept it if the court tried to go back to the original understanding, under which it was okay for states to do those things. But does this just mean that we've decided that judges get to say what the constitution means? That they get to change it however they think is best? Not necessarily. No one really says that judges should update the constitution to keep it in tune with the times. That's a crazy thing to say, unless you really worship judges. >> Hamilton would jump out of his skin if he thought that the Constitution he supported allowed nine unelected judges to change the meaning of the document. >> I don't think we >> From, from year to year. >> So, the Originalists have a good point. The meaning of the Constitution shouldn't change just because some judges think it should. But the living Constitutionalists have a point, too. The Supreme Court doesn't decide all its cases the way it would have when the Constitution was adopted. It's not going to start doing that either and almost no one would be happy if it did. Is there any way to hold on to both these points, to reconcile orginalism and the living Constitution. Yes, there is. The better version of living constitutionalism is actually consistent with originalism. The key point here is that it's possible to have a constitutional provision whose meaning remains fixed, which is the originalist claim. But whose applications change, which is what the evolutionists want. Because this is such an important point, I'm going to illustrate it with a constitutional provision that doesn't actually exist. Suppose you wanted to make sure that people respected the Senate, and you thought that dressing well was the key to being respected. So, you put in the Constitution a clause saying, while engaged in debate, the Senators shall wear the latest fashions. This tells you to do one thing in 1789, it tells you to wear a powdered wig and knee britches. But now, doing that isn't complying with the latest fashions clause, it's violating it. So, a case about this clause will come out differently now than it would have in 1789. That's not because the meaning of the constitution has changed, it's because the clause itself tells you to look to what people think is fashionable at the time. Do we have any provisions like that in the real constitution? There are three main types of provisions that you would expect to find in a constitution. A lot of the Constitution is about the structure of government. The applications of those provisions are not going to change. Each state gets two senators in 1789, and now, and in the future. Then there's some provisions that are designed to eliminate specific practices. I call them Backward-Looking provisions, because they look back to something that happened in the past and say, never again. We have provisions that ban slavery, for instance, and lodging troops in people's houses, because we experienced those things and thought they were bad. Those provisions, too, applications will not change. But then there are, or there might be. What you could call Forward-Looking predictions. They say, here's a value that's important. We want this value to be respected, but we understand that people in the future may have different views about what it means to respect this value, and we want their understandings not ours to control. That's what the latest fashions clause does. People will have different ideas about what's fashionable, and if you want the senators to look good, you have to follow those future ideas. And if you look at the well-known evolutionary decisions, where the Supreme Court said, for instance, that states can't segregate their schools, or ban interracial marriage, they fit this model of Forward-Looking provisions. The Constitutional provision that's being enforced there is the Equal Protection Clause, which the court generally says prohibits unfair or oppressive discrimination. And what the court has done in these decisions is just to say, in deciding what's unfair or oppressive, we're going to look at what people think now, not what they thought hundreds of years ago. So Forward-Looking provisions are possible. That's what the example of the latest fashions clause shows. And they fit what the court has actually done. They explain the so-called evolutionary decisions. Those decisions might still be wrong. The court might have taken something that wasn't supposed to be a forward looking provision, and started reading it that way. But if we disagree about that, it's a disagreement about how a particular constitutional provision should be understood. It's not a general disagreement about how to interpret the Constitution. It's not a disagreement about originalism versus the living constitution. Originalism versus the living constitution. Is actually an argument that no one needs to have. [MUSIC]
