Constitutional interpretation is the process through which meaning is ascribed to words in a Constitution. Since the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1805), this duty has been the preserve of the judicial department. Two schools of thought as to the proper manner of interpretation exist; the originalists and non-originalists. Originalists favor a strict and literal interpretation basically based on the intent of the drafters (Ely, 1980). Non-originalists on the other hand favor a liberal interpretation that pays regard to existing circumstances.
In my view, a proper interpretation approach is that of the non-originalists. From the onset, it is trite that law does not exist in a vacuum. Consequently, it must be interpreted in light of the circumstances of the people it applies to. Secondly, the process of amendment is usually arduous and may not be quite effective in addressing emerging issues or even where circumstances render a particular interpretation obsolete. A non-originalist approach suffices to remedy such scenarios.
Thirdly, the Constitution cannot provide for each and every issue. It is on such basis that it is drafted in general terms to allow flexibility for unforeseen changes. An originalist approach not only impedes this flexibility but also defeats the very intention it seeks to uphold. It is only through a non-originalist approach that these issues can be catered for. Fourthly, emphasis on the intention of people that cannot be called upon to elucidate or confirm the same may lead to absurd or wrong decisions.
There are instances where such intention is not discernable from the text. In such a case, an originalist approach would likely lead to a wrong decision as the interpreter will be trying to give effect to something they do not know. The proper approach in this case would be the non-originalist as it would allow the interpreter to have recourse to the present circumstances to give effect to the law.
Fifthly, the Constitution was enacted for the people then and for posterity. Interpreting it with only regard to the drafters would not only be unfair but also to some extent unconstitutional. Moreover, if the Constitution itself acknowledges posterity there is no basis for restricting its interpretation to the drafters’ intent only. Consequently, a non-originalist approach is a more conducive and acceptable approach.
Finally, it is agreeable that a Constitution should be treated as a living document. This requires that it is natured over time to keep its spirit alive. Taking a strict and pedantic approach to its interpretation would kill its spirit. It is only through a non-originalist approach that it can be natured by liberal interpretations that make it conducive and adaptable to the existing circumstances.
Ely, Hart, J. (1980). Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press,
