Is the freedom to have an abortion a legal right? Does the second amendment allow citizens to purchase military-grade assault rifles?

Legal interpretation is not as easy as it might seem at first glance.

One strand of thought sees the constitution as a “living document,” which, as Professor David Strauss from the University of Chicago states, is a document that “evolves, changes over time, and adapts to new circumstances, without being formally amended.”

Whereas other theorists claim that a legal text’s proper interpretation depends on the author’s intentions or the literal meaning of the text when it was written. The living constitutionalist claims that legal texts ought to be interpreted in light of the cultural context when they are being interpreted and from which it follows that people today can legitimately interpret the constitution in ways that are inconsistent with previous (and even future) interpretations.

This, as I take it, is the wrong theory of legal interpretation. The living constitution theorist begins by noting that our society today differs in many relevant aspects from the society that created the constitution.

Our technology, weaponry, economy, let alone our environmental issues are nothing like the founding fathers could have predicted. Because of this, the constitution can not realistically keep up; our society changes too quickly for 200 year-old laws to do their job as well as they used to.

Yet, we need legal changes to keep up with all these other social changes. So, the living constitution theorist concludes, we can interpret the constitution in light of these new social changes and use it as a means to achieve these goals.

A paradigm example is abortion rights. These rights were not an explcitly granted in the constitution. My contention with this line of thought is that practical reasons for an interpretation are not sufficient grounds for a correct interpretation.

I’ll argue this through a thought experiment. Imagine a couple, Jamal and Alex.

Before work, Jamal texts Alex, believing he is going to go grocery shopping: “Hey Alex! How about we eat soup for tonight?” Eventually, Jamal gets off work and begins heading home.

Alex, having forgotten to go grocery shopping, still needs to have dinner prepared. However, he thinks, “Cereal is technically a kind of soup, and we don’t have time to go grocery shopping, so even though Jamal obviously did not intend to eat cereal for dinner, I have strong practical reasons for interpreting Jamal text in such a way.”

Where do your intuitions lie?

It seems like Alex, despite having strong prudential reasons for his interpretation, obviously got the wrong result. This, I believe, shows that prudential reasons are irrelevant to proper textual interpretation (even if the wrong interpretation is useful).

Living constitutionalism does have practical advantages–but practical advantages are not sufficient grounds for determining how we should interpret the text. Instead, practical advantages simply show that we can incorrectly interpret the constitution in ways that achieve (often important) social goals.

Ian Palacios is a senior English major. He can be reached at [email protected] or 217-581-2812.