Evansville Bar Association editorial board| Evansville Courier & Press

The following article was written by the editorial board of the Evansville Bar Association, chaired by Joe Langerak, and comprised of Max Fiester, Carl Heldt, Steven Hoar, Yvette LaPlante, Katherine Rybak, Les Shively, Dirck Stahl, Kathryn Sullivan, Shawn Sullivan and Cliff Whitehead.

Law Day, commemorated on May 1, is a celebration of the law and its role in society. The theme for 2022 is Toward a More Perfect Union: The Constitution in Times of Change. Written in 1787, ratified in 1788, and in operation since 1789, the Constitution has survived over two centuries of societal changes and has served as a great influence on other countries systems of government.

The document has served as the cornerstone of American jurisprudence even as the viewpoints, standards, and norms of our country have changed. With these changes, judges have been tasked with determining how to interpret the words of the Constitution. Even at the highest level of judicial office, reasonable jurists disagree on how that should be done.

The task seems easy: If we start from the premise that the words of the Constitution contain the answer to whatever question is posed, we should simply need to read the words and then apply them. But in practice, interpreting the Constitution is much more difficult. Rules from a 200-year-old text may not always neatly address modern problems.

For example, how should a judge apply the Fourth Amendments protection against unreasonable searches and seizures in todays society where a cell phone carries the types of information that a citizen would have previously kept locked in a filing cabinet or a safe? When the First Amendment was written, there was no such thing as television. How do we apply a term that was written into the Constitution to a situation which did not exist at the time?

To answer that question and others like it, judges apply one of (at least) two schools of thought, known in the legal world as Constitutional Theories. The theories, sometimes referred to as Originalism and Evolutionism, are guiding principles that help the judge tackle a common problem, in a way that ensures their decisions are consistent. If the law were an algebra problem, constitutional theories would be a way for problem solvers to show their work through reasoning.

By showing their work, judges provide a consistent approach to solving the problem, which allows litigants and citizens to more accurately anticipate how a court may rule.

Judges who are Originalists interpret the statute as it would have been understood by competent users of the language at the time when the law was enacted. Originalists analyzing the search of a cell phone look at the Fourth Amendments prohibition on unlawful search and seizures and decide what The right of the people to be secure in their persons, houses, papers, and effects means, and they take the approach that we cannot change those words, simply because hundreds of years have passed.

By reference to another example, because the death penalty was not a cruel and unusual punishment when the 8th Amendment was adopted in 1791 (indeed any felony was punishable by death), it cannot be a cruel and unusual punishment in 2022. The Originalist would object to the argument that the Constitution prohibits the death penalty today, because the death penalty existed when the prohibition against cruel and unusual punishment was adopted.

The Evolutionists look to the purpose of the law they are interpreting. In reviewing a cell phone search, they would ask what value or objective the Founding Fathers were trying to protect or accomplish when they drafted the Fourth Amendment. They would then determine if the search of the cell phone violated that value or objective. Importantly, the Evolutionists are quick to point out that they are not changing the meaning of the words in the Constitution, but are recognizing that the world has changed.They place emphasis on what the goal of the language was, not simply the meaning of the word itself.

Further, they take the stance that the Originalist approach is flawed because it fails to recognize that sometimes, the meaning of a word is not clear. One judges definition of cruel may be different from another judges definition of cruel. The Evolutionist may argue that if we fail to consider the values or objectives of the wording, we run the risk of violating the entire purpose for which the wording was used.

In response, the Originalist would argue that in this effort to attempt to determine what the authors of the Constitution (including the Amendments) were trying to protect, the Evolutionist goes too far to essentially revise the Constitution. The Originalist is quick to point out that in applying the Constitution, courts are not permitted to re-write its language by placing a different meaning on a word. The Originalist points to the fact that the Constitution can be amended, and if there is language in the document that we as a governed people no longer agree with, we can amend it through the legislative process.

Jurists from both schools of thought serve at all levels throughout the country. Supreme Court Justice Antonin Scalia was perhaps the most passionate Originalist. Justices Hugo Black and Clarence Thomas also utilized the doctrine in their opinions. Evolutionists include Justices Harry Blackmun, William Brennan, and Stephen Breyer.

As the members of the Supreme Court change, so will the way that justices interpret the laws. But, one thing remains constant: Justices continue to use certain guiding principles to reach their conclusions in a consistent manner.

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Op-ed: The Constitution in a time of change - Courier & Press