Interpretive strategies have gone through cycles

Interpretive strategies have gone through cycles of strict-constructionist (or Originalism) and broad-constructionist (or Living Constitution) perspectives. Originally the procedure of interpreting the Constitution followed the strict-constructionist, or the grammatical- historical, method. That is, the Constitution was interpreted by studying the words of the document itself in light of what those words meant when they were used at the time of the formulation of the document. Political and social conservatives tend to favor strict constructionism.

Oliver Wendell Holmes Jr. (1841-1935), however, championed the broad-constructionist perspective, which radically changed Constitutional interpretation. Holmes famously declared that “[law] corresponds at any given time with what is understood to be convenient. That involves continual change, and there can be no eternal order.” He also declared that the basis of much legal thought lies outside of the law. When the court, following Holmes’s lead, interprets the Constitution in light of modern attitudes, it in effect changes the Constitution by means of reinterpretation. Political and social liberals tend to favor broad constructionism.

The debate between strict and broad constructionists has led to a crisis in law and public confidence in the nation’s highest court. This is most manifest when the President nominates a person to the Supreme Court and the Senate holds its confirmation hearings. How will the nominee interpret the Constitution? The fear for many conservatives is that an activist Court that interprets the Constitution broadly becomes a legislative rather than interpretive agency.