Two pro­fessors debated the virtues of inter­preting the Con­sti­tution as a living doc­ument versus an orig­i­nalist inter­pre­tation last week.

At the event hosted by the Hillsdale Fed­er­alist Society, pro­fessors John Baker and Richard Primus, mod­erated by Justice Brian Zahra of the Michigan Supreme Court, debated the topic of “Our Con­sti­tution: A More or Less Perfect Union? A Dis­cussion on the Chal­lenges of Orig­i­nalism.” The debate was part of a project by PBS’s “Free to Choose” series on orig­i­nalism and the Con­sti­tution. Baker rep­re­sented the living doc­ument view­point, while Primus advo­cated for the orig­i­nalist per­spective.

Primus kicked off the debate by arguing that the orig­i­nalist inter­pre­tation was, in practice, a living doc­ument. He asserted that what decides a modern court case is not the actual meaning of the doc­ument in his­torical context but rather the original meaning of the doc­ument as under­stood by the judge.

“Offi­cially, orig­i­nalism is sup­posed to hold the law steady and keep it how it was in the beginning but, in reality, orig­i­nalism is a recipe for changing the content of Con­sti­tu­tional law over time as the values of the judges change,” Primus said.

Primus called this system of inter­preting the Con­sti­tution “oper­ative original meaning.” To defend his point, Primus showed how on the issues of school seg­re­gation, fire arms, and same-sex mar­riage, legal experts have managed to make the text of the Con­sti­tution fit both sides of the argument at dif­ferent times in history, demon­strating the dynamic nature of orig­i­nalist inter­pre­tation.

Baker defended orig­i­nalism by first asserting that an orig­i­nalist inter­pre­tation of the Con­sti­tution is an oblig­ation, not optional.

“Orig­i­nalism is not a theory,” said Baker, “It’s an oath all judges take to uphold the Con­sti­tution.”

He con­tinued by empha­sizing the impor­tance of reading the Fed­er­alist papers and dic­tio­naries from the time of the founding to under­stand the original intent.

“Many people who call them­selves orig­i­nalists aren’t very good at it because they’ve never read the Fed­er­alist and you got to under­stand that to be an orig­i­nalist, ” said Baker.

Junior Dan Grif­ferty, pres­ident of the Fed­er­alist Society, said that PBS reached out to him last semester to request that Hillsdale’s chapter of the Fed­er­alist Society host this event.

Though this debate will not be part of the tele­vision series to be aired later this month, it is part of their project on orig­i­nalism and the Con­sti­tution.

Grif­ferty said their chapter had not hosted debates on this topic because of Hillsdale’s orig­i­nalist bent.  

“We haven’t done debates in the past because we have the opposite problem of most schools,” said Grif­ferty, “We have to bring in a living Con­sti­tu­tion­alist rather than having to bring in an orig­i­nalist.”

Both Baker and Primus com­ple­mented Hillsdale on its aca­demic excel­lence and rep­u­tation. Primus said he has had several out­standing stu­dents from Hillsdale at Uni­versity of Michigan Law School where he teaches.

“Some­thing is being done right here so thank you for bringing me to the place,” said Primus.