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A Historic Debate Emerges: Original Intent vs. Living Document

President Donald Trump announced on Monday that he would nominate U.S. Circuit Judge Brett Kavanaugh to replace Supreme Court Associate Justice Anthony Kennedy.

Kavanaugh has a solid conservative record.

He was instrumental in writing the Starr Report in 1998, encouraging the impeachment of President Bill Clinton. He worked for the George W. Bush campaign in Florida when Bush and Al Gore battled in court over the results of the 2000 presidential election.

After Bush was sworn into office, the president nominated Kavanaugh for the U.S. Court of Appeals for the District of Columbia Circuit. His confirmation took three years with allegations of partisanship offered by his dissenters.

More recently, he has taught at Harvard Law.

With Kavanaugh now seeking affirmation of his nomination, a historical and essential debate will once again emerge.

Throughout the history of the republic, a constitutional and political debate has focused on whether the U.S. Constitution should be interpreted and applied through an “originalist” or a “living” hermeneutic.

Hermeneutics is about interpretation. It involves the method and presumptions influencing our understanding and application of foundational documents, such as the U.S. Constitution or a sacred text like the Bible. Whether we realize it or now, we all have and use a hermeneutic.

The “originalist” hermeneutic underscores an attempt to ascertain the original meaning of the Constitution and apply that intent upon modern generations.

The “living” hermeneutic strives to understand the original intent but interprets and applies the Constitution through the lenses of modern issues and societal evolution.

This conflict remains an important question for any potential U.S. Supreme Court Justice, whether Kavanaugh is confirmed or not. This debate will continue after a new Supreme Court judge is seated, whomever that might be.

Therefore, thoughtful and astute citizens would benefit by re-examining this debate and measuring it against their hermeneutic for faith.

This question regarding an “original” versus a “living” hermeneutic of the Constitution has been examined since the founding of the country.

After the U.S. Constitution was ratified, Thomas Jefferson addressed the notion that laws could be binding to future citizens when he wrote to James Madison. He argued that the established laws must be interpreted and adapted by future generations.

Jefferson wrote to Madison on Sept. 6, 1789, “On similar ground, it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.”

In his letter, Jefferson seems to be arguing for a “living” hermeneutic of the Constitution, empowering each generation to govern themselves upon the foundation of the Constitution while taking into account contemporary values, ideals and needs.

We should maintain a healthy respect and understanding of foundational principles, but we must govern based upon current realities.

It would be foolish for any future generation to let a deceased generation dictate every fabric of their existence.

This same philosophy can be seen in the hermeneutic of Jesus, who often interpreted and applied the spirit of Old Testament laws but rejected a rigid literalness when it came to the dehumanization and marginalization of individuals.

Jesus employed a living hermeneutic that respected the laws of his ancestors but balanced those laws against what he deemed the most important laws – love God and love others (Matthew 22:36-40).

According to the law, Jesus was not supposed to touch lepers. Not only did he touch them, he healed them (Luke 17).

According to the law, he was not supposed to talk to women. Not only did he speak to them, he even engaged with those from a different culture and empowered Mary to be an Apostle to the Apostles (John 4 and Matthew 28).

According to the law, he was supposed to keep the Sabbath holy by not working, but when he and his disciples were hungry, they plucked grain and ate it (Matthew 12).

According to the literalness of the law, he was not supposed to associate with sinners, but he declared his ministry was for those the elite deemed corrupt and unworthy (Mark 2).

How we interpret and apply the sacred documents and laws of our past reveals an essential truth: If we fixate on “original” intent without considering modern-day realities and changes, then we face living in a modern age governed by outdated – and at times harmful – ideas and principles.

We must consider the transformation of values, morals and ethics – especially when issues of human relationships are concerned.

However, we face another danger: If we only consider modern needs without the compass of original intent, then we open the door to principled ambiguity.

Whether it’s the U.S. Constitution guiding the laws of the United States or the Bible directing the faith and practice of Christians – and Christians should not consider these two documents to be equals – we must have a moral compass we use to stay directionally true.

Whether interpreting the law or the Bible, individuals need an excellent hermeneutic for interpreting and applying truths to life and the lives of others. This is found when the delicate balance between an “original” and “living” hermeneutic is instilled in judges, theologians and laypeople.

Mitch Randall

Mitch Randall is executive director of EthicsDaily.com.