Originalism v. Living Constitutionalism: The Debate goes on…

“Constitution is not a mere lawyer's document. It is a vehicle of life, and its spirit is always the spirit of age.”

— Dr B.R. Ambedkar

The Constitution of any nation is the supreme law of the land. It guarantees various rights and liberties to the individual. The question always arises whether these rights and liberties are frozen at the time when the Constitution was framed and enforced, or they are dynamic, and evolve with the changing times. This question has again been raised by the decision of the United States Supreme Court in Thomas E. Dobbs v. Jackson Women's Health Organisation¹.

The answer to this question mainly depends on the way in which the Constitution is interpreted. There are mainly two ways in which constitutional documents are interpreted across the world.

Originalism i.e. to interpret and enforce the Constitution as it was understood at the time it was originally written. The two crucial components of originalism are the claims that constitutional meaning was fixed at the time of the textual adoption and that the discoverable historical meaning of the constitutional text has legal significance and is authoritative in most circumstances.²

Living constitutionalism, on the other hand, is commonly associated with more modern jurisprudence. The proponent of this theory believes that the legal content of constitutional doctrine does and should change in response to changing circumstances and values. The Constitution cannot be static for all time to come. It has to match with the needs and beliefs of the future generation. A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended.³

United States Constitution — Precedents on living constitutionalism

The great John Marshall, C.J. said that the Constitution is “intended to endure for ages to come,” and must adapt itself to a future “seen dimly”.⁴

In Griswold v. State of Connecticut⁵, the Supreme Court upheld the right to purchase and use contraceptives and thus solidified the “right to privacy” not expressly written anywhere in the Constitution.

In Obergefell v. Hodges⁶, Anthony Kennedy, J. while upholding same-sex marriages went on to assert that “… changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations”. The Court specifically rejected the contention based on Washington v. Glucksberg⁷ that the Fourteenth Amendment “must be defined in a most circumscribed manner, with central reference to specific historical practices”. The Court held that the Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.

Recently, in National Labor Relations Board v. Noel Canning⁸, the Court remarked that “[t]he Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries”.

Dobbs v. Jackson Women's Health Organisation — Recent tilt towards originalism

The recent decision of the United States Supreme Court in Thomas E. Dobbs v. Jackson Women's Health Organisation⁹ has shown a strong tilt towards originalism.

The Court overruled two of its earlier decisions, famously known as Roe v. Wade¹⁰ and Planned Parenthood of Southeastern Pennsylvania v. Casey¹¹, holding that the United States Constitution does not confer any right to abortion. The Court, speaking through majority, remarked that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. The majority decision authored by Samuel Alito, J. held that for a right to be protected by Constitution, such right must be “deeply rooted in the nation’s history”.

The majority relied on the Court's earlier decision in Washington v. Glucksberg¹², which held that the due process clause does not confer a right to assisted suicide. In Glucksberg¹³, the Court surveyed more than 700 years of Anglo-American common law tradition and made clear that a fundamental right must be “objectively, deeply rooted in this nation's history and tradition” and “implicit in the concept of ordered liberty”.

The majority concluded “Roe¹⁴ was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe¹⁵ and Casey¹⁶ have enflamed debate and deepened division”.

The minority, in a scathing descent, has criticised this reasoning of the majority stressing that it will lead to denial of various rights (such as right to privacy, to purchase contraceptives, same-sex marriages, etc.) which the Supreme Court has till date settled on the individuals. Criticising the rationale of majority, the minority remarked that “[t]he same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American Law for a constitutional right to obtain (contraceptives)”.

The minority highlighted the flaw in the majority's reasoning by reminding that the framers of the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognise women's rights. The majority thus consigns women to second-class citizenship. The minority referred to Casey¹⁷, where the Court recollected with dismay a decision¹⁸ issued just five years after the Fourteenth Amendment's ratification, approving a State's decision to deny a law licence to a woman and suggesting as well that a woman had no legal status apart from her husband.

“With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent”, the minority exclaimed.

This reminds us of the words of the then Chief Justice of United States Supreme Court, Justice Charles Evan Hughes¹⁹ that “a dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day,” with only hope that “a later decision may possibly correct the error which the dissenting Judge believes the court to have been betrayed”.

Indian Constitution — Journey towards living constitutionalism

The Constitution of India, as it is now understood and interpreted, is a living document. However, that has not been the case always. The cases which were decided immediately after the Constitution was enforced, gives an indication that the Constitution was interpreted as per the intent of the framers.

In A.K. Gopalan v. State of Madras²⁰, one of the earliest cases decided by the Supreme Court, Article 21²¹ of the Constitution was held to not require Indian courts to apply a due process of law standard. The Court relied on the rejection, by the framers of the Constitution, of the “due process” clause (which appeared in the original draft). Mukherjea, J., in a concurring judgment, concluded that in Article 21, the word “law” has been used in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.

It was only 28 years later that the Supreme Court overruled A.K. Gopalan²² in Maneka Gandhi v. Union of India²³, and accepted the argument that the expression “procedure established by law” meant a procedure “which is just, fair, and reasonable”. Krishna Iyer, J., in concurrence with Bhagwati, J., summed up that “procedure” in Article 21 meant fair, not formal procedure; “law” is reasonable law, not any enacted piece.

More prominent and telling example is the “right to privacy”. In Kharak Singh v. State of U.P.²⁴, though the Supreme Court invalidated nightly domiciliary visits by policemen to persons classified as habitual criminals, it held that:

17. … the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.

The Supreme Court went further in M.P. Sharma v. Satish Chandra²⁵ and held that when the Constitution makers have thought fit not to recognise “fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction”.

This question was reconsidered by a nine-Judge Bench of the Supreme Court in K.S. Puttaswamy v. Union of India²⁶. The Attorney General relying on the above two decisions contended that the framers of the Constitution expressly rejected the right to privacy being made part of the fundamental rights chapter of the Constitution. However, the court spurned the argument and emphasised that the Constitution “must be interpreted to respond to the changing needs of society at different points in time”. Thus, finally in the year 2017, the Supreme Court overruled Kharak Singh²⁷ and M.P. Sharma²⁸, cementing the “right to privacy” as a fundamental right.

In Supreme Court Advocates-on-Record Assn. v. Union of India²⁹, the Supreme Court rejected the originalism theory of interpretation in telling words as follows:

16. The proposition that the provisions of the Constitution must be confined only to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liable to be rejected for more than one reason — firstly, some of the current issues could not have been foreseen; secondly, others would not have been discussed and thirdly, still others may be left over as controversial issues i.e. termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher as to what were the factors that influenced the mind of the framers at the time of framing the Constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time.

The Supreme Court in its celebrated decision of Kesavananda Bharati v. State of Kerala³⁰ recognised that a

634. Constitution is expected to endure for a long time. Therefore, it must necessarily be elastic. It is not possible to place the society in a straitjacket. The society grows, its requirements change. The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come.

Constitution is a living organism. It is not that with changing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used. The connotation of the expressions used takes its shape and colour in evolving dynamic situations.³¹ The Constitution would become a stale and dead testament without dynamic, vibrant, and pragmatic interpretation.³²

Conclusion

Whatever else might or might not be said of the decision in Thomas E. Dobbs v. Jackson Women’s Health Organisation³³, this is undeniably true that it is a decision in retrograde insofar as the principles of interpretation of Constitution are concerned.

Many modern countries of the world, apart from India, have adopted the living constitutionalism theory of interpretation of supreme law of the land. The Canadian Supreme Court described the Constitution as a “living tree” and held that the frozen concept reasoning runs contrary to the fundamental principles of the Canadian constitutional interpretation.³⁴ The European Court of Human Rights interprets the Convention on Human Rights as a “living instrument which … must be interpreted in the light of the present-day conditions”.³⁵

Even in United States, many rights which the courts have recognised in the recent past, cannot be said to be within the contemplation of the framers of the Constitution. These rights include protection from involuntary sterilisation³⁶ (which the Court upheld in 1927³⁷ during the eugenics movement); the freedom to purchase and use contraceptives, which was banned in the late 19th century and which the court did not begin to protect until 1965³⁸; the right of a non-white American to marry a white American, which was prohibited going back to the days of slavery and which the court did not safeguard as part of the fundamental right to marry until 1967³⁹; sexual intimacy between consenting adults in private, including same-sex intimacy, which was long regulated in American Law and which the court did not protect until 2003⁴⁰; and the right to marry someone of the same sex, which existed as a matter of positive law in the United States until the court vindicate it in 2015⁴¹.

The United States Supreme Court has overturned 50-year-old precedent, which was already once reconsidered and affirmed, and which was the basis of many other meaningful rights, and thus unsettled the entire constitutional spectrum of individual rights and liberties.

At this juncture, it would not be inapt to conclude by quoting Brandeis, J.⁴² that “it is more important that the applicable rule of law be settled than that it be settled right”.