Contra Scalia, Thomas, and Gorsuch: Originalists Should Adopt a Living Constitution

72 U. Miami L. Rev. 112 (2017)

48 Pages Posted: 5 May 2017 Last revised: 13 Oct 2020

See all articles by R. Randall Kelso

R. Randall Kelso

South Texas College of Law Houston

Date Written: May 5, 2017


Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers and ratifiers’ intent or action.

Among originalists, there is a debate whether the framers and ratifiers’ actual “original subjective intent” should govern (intent) or whether one should instead look to the “original meaning” of the words adopted by the framers and ratifiers (action). In most cases, the result would be the same under either approach. For this reason, as Justice Scalia once acknowledged, “[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather between original meaning (whether derived from Framers’ intent or not) and current meaning.” This is the issue on whether to adopt a “static” or “living” model for constitutional interpretation.

What is often unappreciated in addressing this question is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living Constitution. Under such a model, later legislative, executive, or social practice, or judicial precedents, can change the meaning of a constitutional provision. Thus, while it has been noted that standard “originalist” supporters share the premise that the original meaning of constitutional text is fixed at the time each provision is framed and ratified, interpretation according to any version of “originalism” actually does not commit the interpreter to a “static” or “fixed” interpretation of the Constitution. Instead, a “true originalist” form of interpretation can incorporate the principle that the provision was capable of evolution over time.

Part II of this article summarizes the four main judicial decisionmaking styles which exist regarding constitutional interpretation. Part III then summarizes the argument that the overwhelming historical evidence is the framers and ratifiers believed in a living Constitution model of interpretation. Without historical support for the standard version of originalism, which adopts a “fixed” or “static” model of interpretation, that leaves supporters of the standard version with only the argument that such an approach is a better approach to interpretation, even if it was not shared by the framers and ratifiers. Part IV of this article discusses the arguments why such standard originalism should not be preferred on normative grounds. Part V of this article provides a brief conclusion. That conclusion notes that the proper approach to constitutional interpretation on both original intent and normative grounds is to interpret the Constitution in the manner that the framers and ratifiers would expect it to be interpreted today. That approach is best reflected on the modern Supreme Court in the interpretation approach of Justice Kennedy, and former Justices O’Connor and Souter. Such an approach represents “True Originalist” interpretation.

Keywords: constitutional law

Suggested Citation

Kelso, R. Randall, Contra Scalia, Thomas, and Gorsuch: Originalists Should Adopt a Living Constitution (May 5, 2017). 72 U. Miami L. Rev. 112 (2017), Available at SSRN: or

R. Randall Kelso (Contact Author)

South Texas College of Law Houston ( email )

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