Sonia Sotomayor: Originalism vs. Living Constitution (2016)
Andrew Finstuen
Introduction
Justice Sonia Sotomayor joined the Supreme Court in 2009. She came to the Court with a sterling record as a federal judge, distinguishing her as one of the more experienced judges ever appointed to the highest court. In addition to her vast legal expertise, she is the first Latina and third woman appointed to the Supreme Court. She has given speeches about how her hard work and humble background exemplify the idea of the American Dream while also raising concern about how achievable the American Dream is today.
Justice Sotomayor subscribes to a “living Constitution” approach to the Constitution. In this brief video, she explains the difference between that position and Justice Scalia’s originalism.
Questions for Reflection and Discussion
- What does the case of a violent video game reveal to you about originalism?
- How does Justice Sotomayor’s example of “cruel and unusual punishment” compare with Scalia’s discussion of public flogging?
- Do the Supreme Court Justices mention natural rights in their discussions? Why or why not?
- Should we interpret the constitutional powers of the national government broadly or narrowly?
- How do you see the two views of constitutional interpretation given by Justices Sotomayor and Scalia relating to Allen’s relationship between habits and principles, or Jaffa’s account of Lincoln balancing actual consent with the ideal of universal human equality?
Video: Originalism vs Living Constitution – Sonya Sotomayor
Originalism vs. Living Constitution Video on C-SPAN (opens in a new window) (03:36 min.)
Expand to read transcript
Speaker: Justice Sonia Sotomayor:
Originalists, like my colleague Justice Scalia, believe that all questions should be interpreted through the historical lens of what the Founding Fathers were confronting when they wrote the provisions of the Constitution. So that… When you get a case involving an issue, and I’ll give you an example from the case I was involved with in an exchange between Justice Scalia and Justice Alito. Alright? Who pretty much saw things the same way a lot.
But a number of years ago. We had a case involving the prohibition of sale of certain video games to children without their parents’ consent, and, Justice Alito in questioning one of the lawyers, basically said, “do you really think our founding fathers ever imagined the day when a video could represent a killing of someone in such realistic terms that as exists today?” Because some of these animated cartoons seem lifelike. And the lawyer said, “no, Justice, I don’t think so.” And Justice Scalia quipped back, “but our founding fathers knew about violence, and they didn’t permit the control of violent media.” And so, a strict originalist, as he was, would say, since they didn’t control violence. This may be a more extreme violence today, but it’s still at its core of violence. And so, I am not going to vote to permit the suppression of this kind of information. Justice Alito dissented in that case. And I think he would describe himself as an originalist, but of a slightly different one.
But, on the other side is what Bill Press called the living constitution theory, which is that the Constitution is not a dead document, but a living one that was intended to last as long as the country could last, and that our founders hoped it would be for basically forever, and that it was intended to grow with the society, and to be interpreted within the norms that the society develops.
And so, for example, on issues like cruel and unusual punishment, a person or a justice, more akin to the living Constitution would say, you know, it was okay, back when, to burn people to death. Today, our norms of decency have changed. Today, that’s cruel and unusual.
Source: Sotomayor, S. (2020, December 5). Originalism vs. Living Constitution [Video]. C-SPAN. https://www.c-span.org/clip/public-affairs-event/originalism-vs-living-constitution/4798532
