Supreme Court Should Rely On ‘Living Constitution,’ New Surveys Show

REUTERS/Joshua Roberts

Kevin Daley Supreme Court correspondent
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A majority of Americans believe the U.S. Supreme Court should interpret the Constitution in light of contemporary standards, norms, and expectations, new surveys show.

The survey shows dramatic partisan and generational divides about constitutional interpretation.

A new report from the Pew Research Center called “The Public, The Political System and American Democracy” shows 55 percent of Americans believe the high court should “make its rulings based on what the Constitution ‘means in current times.'” In contrast, 46 percent believe the justices should rely on the original understanding of constitutional provisions.

The results suggest a recent shift in public thinking about constitutional interpretation. According to Pew, Americans divided fairly evenly as recently as 2016 with respect to judicial interpretative methods. In an October 2016 Pew poll, 46 percent said the justices should rely on the founding charter’s original meaning, while 46 percent endorsed so-called “living constitution” theories. (RELATED: Supreme Court Clears Way For Legal Sports Betting Across The Country)

The shift appears attributable to Democratic voters. The new report shows 78 percent of Democrats believe the Court should look to the current context, a nine-point increase compared to the 2016 poll. Though nearly a third of Republicans take the same view, Pew says this is consistent with previous results.

The gap is widest between generations. 64 percent of Americans under the age of 50 want the justices to utilize modern norms, while 47 percent of Americans over 50 say the same.

Originalism, which argues judges should begin their constitutional analysis by applying the meaning of constitutional text as understood at the time of its adoption, is popular with conservative jurists. Some conservatives believe originalism constrains the power of courts by privileging democratic process over judicial preference, while others argue it can help the public recover economic freedoms and civil liberties lost in the modern period.

Living constitutionalists, who are generally progressives, believe the Constitution is a dynamic document which establishes certain principles meant to be reinterpreted as society changes. Adherents say their view is a pragmatic concession ensuring federal law is not subject to antiquated mores, while championing the rights of the marginalized, which are not always vindicated through popular elections.

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