This document discusses theories of constitutional interpretation, specifically originalism versus a living constitution approach. Originalism interprets the constitution based on the original intent or meaning at the time it was drafted, believing judges should not make new law. A living constitution allows for an evolving, flexible interpretation that adapts to changing societal understandings over time by applying the original purposes and values to current circumstances. The document provides examples of how different theories of interpretation could lead to varying understandings of a hypothetical 1930 state law regarding methods of execution.

1. The First Amendment and Theories of
Constitutional Interpretation
JOUR 430 (PARK)

2. Amendment 1 to the U.S. Constitution
• “Congress shall make not respecting an establishment of
religion, or prohibiting the free exercises thereof; or
abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.”
• What is the importance of broad First Amendment
Protection?
• Are there both individual and social interests?

3. Theories of Interpretation
ORIGINALISM v.“LIVING CONSTITUTION”(Evolutionary)
What are the differences?

4. Theories of Interpretation
LIVING CONSTITUTION
• Constitution has a dynamic meaning
and was written in flexible terms to
reflect that dynamism, so it can adapt to
changing norms and understandings of
an evolving society
• “Living” – b/c it has the properties of an
organism; changes and adapts to match
enlightened understandings
• Original Purposes and Values should
be applied to current circumstances; e.g.,
Con law read with regard to current
standards of equality (and not just of the
rights of male landowners)
ORIGINALISM
• Absolutist/Strict Constructionism – go
by the text, the words, and nothing more.
• Original Intent – intent of the original
drafters (e.g. “Liberty” – does this mean
free from government coercion or also
freedom to participate in gov?)
• Original Meaning – what a reasonable
person at the time of drafting the law
would interpret

5. Advantages of Each Theory of Interpretation
• Originalism
• Less room to male law; judges
should not be philosopher kings
who make law – that is for the
legislature
• Living Constitution
• Flexibility; takes into account
changes in society, attitudes;
adapts to enlightened
understanding

6. “A State may not impose the death penalty by
hanging, stoning, or gunfire” (a 1930 state law)
How should this be
interpreted?
Various interpretations based
on the constitutonal theory of
interpretation …
Perhaps the law means …
(1) No death penalty by
hanging, stoning or gunfire, but
drowning or electrocution is
ok?
(2) Perhaps it means no “cruel
and unusual punishment”
because these forms were
considered “cruel”?
(3) Maybe it means “no death
penalty”?