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how do we know what the Constitution means?

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the people who wrote it believed many things that we don't believe now

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that white men could own black slaves

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that the government could deny the vote to free blacks and women

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that men should not be allowed to marry other men

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so in some ways, our constitutions is different than the framers Constitution

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does the fact that our values have changed mean that our understanding of the Constitution should change

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or is the meaning fixed for all time?

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this is one of the debates in constitutional law

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1. originalism

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meanings of Constitution shouldn't change

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cases must be decided the same way today as they would have been when the Constitution was ratified

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if you want to change it, there is an Amendment provision to do that

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2. "the living constitution"

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constitution changes with the times

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cases are decided in a way that makes sense for today

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the Constitution is intended to last for a long time and has to grow with our changing society

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you have to look how the constitution's values are applied to today's circumstances

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the Supreme Court has generally followed this kind of evolutionary theory

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states used to:

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segregate public schools and buses and railroad cars by race

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ban interracial marriage, and prevent women from being lawyers

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courts ruled that at various times in history that the Constitution was allowed states to do all these things

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but then without a change to the words of the Constitution, the courts said that states could indeed not do these things

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almost no one would be happy if the Supreme Court started to decide cases as they would have been decided back in the 18th century when the Constitution was ratified

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3. reconciliation

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Constitutional meaning does not change over time (Originalist claim)

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yet application of rights changes over time (living constitutionalists)

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example

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suppose you wanted to make sure that the Senate was respected

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the key to respect was dressing well

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"While engaged in debate, the Senators shall wear the latest fashions"

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so wearing a powdered wig in 2014 would be violating the clause

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the clause itself tells you to look to what the people consider to be fashionable at the time

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three main types of provisions that you find the Constitution

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1. structural provisions

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the structure of the government

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these meanings don't change

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cases comes out the same way today as at ratification

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2. backward-looking provisions

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look back to something that happened in the past and say: we should never do that again

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e.g. banning slavery

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e.g. banning the lodging of troops in people's houses

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we experienced these things and decided they were bad for the country

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3. forward-looking provisions

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the meaning of the clause doesn't change

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but cases may come out differently based on how society has changed

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e.g. states can't segregate their schools

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e.g. states can't ban interracial marriage

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the constitutional provision being enforced is the Equal Protection Clause

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prohibits states from engaging in unfair or oppressive discrimination

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the courts say: in deciding what is unfair or oppressive, we are going to look at what people think now and not what they thought hundreds of years ago