The Uncomfortable Truth About Constitutional Meaning

Why do smart, intellectually honest judges look at the same seven words — “cruel and unusual punishments inflicted” — and see two completely different constitutional universes? One sees a literal 18th-century guardhouse: the gallows, the stocks, the lash, all arguably fine if the ratifier’s eyes could tolerate them. The other sees a living prohibition that shifts as society’s standards of decency shift.

Both can’t be right. Yet both claim the mantle of faithful interpretation.

So let’s ask the question that makes originalists and living constitutionalists equally uncomfortable: is there actually anything rational at the bottom of constitutional interpretation? I don’t mean the “rational basis test” you memorized in Con Law I. I mean a deeper rationality — a coherent, honest reason for choosing one interpretive theory over another.

Here’s the kicker: the rational basis for constitutional interpretation was never really in the text. It’s in the argument. It’s in the discipline. And it’s in the willingness to admit what the hell you’re actually doing when you pick up a 240-year-old document and say it resolves a dispute about social media bans or mRNA vaccines.

Let’s unpack this before you throw your SCOTUS briefs at the screen.

The Founding Premise Was Never the Text

Start with a common classroom assumption: the Founders believed words were vessels of stable meaning, and that a written Constitution would tether future judges to a fixed point. The Constitution’s own framers desperately wished this were true.

Read Federalist No. 37, where James Madison confesses otherwise. He writes that “no language is so copious as to supply words and phrases for every complex idea,” and he laments the inherent obscurity wrapped inside all written laws. Just a few years after drafting the document that would become American scripture, the Father of the Constitution was openly admitting: this thing is hard to read, and harder to interpret.

That is a sobering confession. The men who wrote the words doubted the words could do the heavy lifting by themselves. Madison wasn’t being defeatist; he was being honest about the interpretive gap between text and application. Words like “commerce,” “necessary,” “regulate,” and “liberty” had contested meanings when the ink was still wet. Give those words two centuries of economic revolution and they become interpretive battlegrounds.

So the rationalist dream of a self-executing text dies almost immediately. A written constitution isn’t a self-contained algorithm. It’s more like a set of family recipes handed down through generations. When you ask three descendants to cook the same holiday dish, you end up with three different versions of stuffing. One prefers sage. Another adds sausage. And everyone argues about what grandma really meant.

The “Rational Basis” Test Is a Different Animal

Before we continue, handle one distinction that muddles casual conversation. When lawyers say “rational basis,” most of the time they’re referring to the deferential standard courts apply to ordinary economic and social legislation.

Recall United States v. Carolene Products (1938), which created the backdrop for modern equal protection law. In footnote four, the Supreme Court suggested that certain types of legislation — those touching fundamental rights or targeting “discrete and insular minorities” — deserve a harder judicial look. Everything else gets reviewed under the rational basis test, where a law simply needs a conceivable legitimate purpose to survive. A regulation that’s a little bit dumb? It stands. A law that treats one person differently without a compelling state interest? Check the level of scrutiny.

The Cornell Law School definition of the rational basis test puts it plainly: the court asks whether the law is rationally related to a legitimate government interest. And in practice, federal judges almost always say yes. Rational basis review is the judicial equivalent of a shrug.

But here’s the uncomfortable connection to constitutional interpretation. The act of interpreting the Constitution’s grand phrases carries almost zero resemblance to rational basis review. When originalists determine the meaning of “due process,” they aren’t being deferential to legislatures. When living constitutionalists read “cruel and unusual” as a fluid moral standard, they aren’t applying judicial modesty in any recognizable sense. Both camps engage in something closer to a high-stakes argument about authority, history, and institutional purpose.

Rational basis review gives us a clean standard. Rational basis for interpretation gives us a mess.

Originalism Is Not What You Think

Let’s be fair to originalism because it gets caricatured, often by people who read one Scalia dissent and think they know the whole tradition.

Justice Scalia famously argued that the text-in-hand should mean what it meant to the public at the time of its adoption, not what later generations wish it meant. He dismissed legislative intent as a fool’s errand, insisting that the words themselves should control. In his famous book A Matter of Interpretation, he pressed the Framer’s words as constrains rather than invitations. The philosophy sounds disciplined. And it is profoundly attractive to anyone tired of judges who act like philosopher-kings.

But originalism’s honesty problem runs deep. To apply it faithfully, a judge must reconstruct 18th- or 19th-century public meaning. Here’s the difficulty. That reconstruction requires choosing which historical materials matter: common law treatises, dictionary definitions, ratification debates, broad public understanding? Scalia rejected reliance on intent because intent is messy and manipulable. Original public meaning was supposed to be more objective. But it turned out to be equally contested.

And judges interpret differently.

The Supreme Court’s 2008 decision in District of Columbia v. Heller is a Rorschach test. Scalia wrote the majority, grounding the Second Amendment in the common law right to self-defense as publicly understood in 1791. Justice Stevens dissented, citing a different slice of history: the prefatory clause’s emphasis on a “well regulated militia.” Both invoked history. Both invoked original meaning. Someone was wrong, but no amount of historiography resolved it in the arena of reason — because the historical record wasn’t remotely as clear as the Justices pretended.

Read the historical record honestly and you’ll notice something: many Founders, including the very ones who drafted the Second Amendment, disagreed about its purpose when alive. Turns out dead people disagree too. The late great Scalia confessed he was “an originalist, but not a nut.” That lighthearted confession was the most intellectually honest thing originalism has produced, because it concedes the need for practical judgment alongside interpretive theory.

Living Constitutionalism Has the Same Problem, Different Wound

Now turn to the other side. Living constitutionalism, sometimes advanced by Breyer and other pragmatists, believes interpretation should be guided by the Constitution’s purposes, evolving societal values, and real-world consequences. This school produced Brown v. Board of Education. For that, it deserves a permanent place in constitutional history.

The segregation-era Court that decided Plessy v. Ferguson claimed to be respecting the text and precedent in 1896. The Court that decided Brown in 1954 effectively said: your constitutional premises were wrong and the consequences of your mistake are unacceptable. Any theory that can’t explain Brown is dead on arrival in American law. Originalists twist themselves into pretzels trying to reconcile original meaning with Brown; living constitutionalists don’t have to, and that’s their advantage.

But living constitutionalism has its own credibility problems. If interpretation is just about advancing fairness and evolving decency, then the Constitution’s text becomes a costume — nice to photograph at the courthouse steps, but not what does the work underneath.

Consider same-sex marriage. The Court in Obergefell v. Hodges (2015) stretched the Fourteenth Amendment to protect the right to marry. The majority reasoned from dignity and evolving traditions. Justice Scalia, in dissent, wrote that the majority had effectively rewritten the Constitution and called the decision a “threat to American democracy.” You don’t have to agree with Scalia to recognize the deep challenge he raised: