When it comes to the boxing ring of arguments regarding the United States Constitution, two teams form in their respective corners: textualists and originalists.
Three Regent University School of Law professors stepped in the ring, head-to-head, to celebrate Constitution Day on Thursday, Sept. 17, moderated by the Honorable Judge Patricia West, associate dean of students in the School of Law.
The panel discussion featured Tessa Dysart, Brad Jacob and Dr. James Davids as they discussed whether the words and definitions of America’s founding document are locked into place, or if they’re up for interpretation over time. In other words, is the Constitution living or literal?
“This isn’t some debate between the obvious ‘good guys’ and the obvious ‘bad guys,'” said Jacob. “There are smart people on both sides of the debate, and it’s worth noting that we’re not trying to demonize either side.”
Jacob explained that abiding by the “living Constitution” philosophy was reminiscent of Common Law, where unelected judges interpreted legislation. The originalist argument for the written Constitution created by the people was a work of genius of America’s founders.
The former interpretation, he said, opened the nation up to a high risk of tyranny.
“What’s ‘supreme’ is five judges in black robes,” said Jacob. “This is the world we live in today.”
Dysart opened her left-hook in the panel discussion by asking if the words of the Constitution mean what they say. Her answer?
“Sure! Why not? If it helps your argument,” said Dysart.
She argued that the words in the Constitution weren’t intended to encompass every facet of government. According to Dysart, the framers of the Constitution utilized ambiguous terms susceptible to multiple meanings such as justice, slavery, general welfare and the “kicker,” necessary and proper.
Davids opened his argument by asking, “Who erased the 10th Amendment?” contending that the Bill of Rights ensures that the powers not given to the federal government are reserved for the individual states and the people.
“I submit that you are more powerful in your house than on your block,” said Davids.
He explained that “we the people” have more power and accountability at the local level rather than the national level of government.
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