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.