The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

Thursday, June 30, 2011

Polling Originalism versus the Living Constitution
Mike Rappaport

Mike Ramsey links to a poll purporting to get people's views about originalism versus the living Constitution approach.  But as with all polls, it depends on how you ask the question.  It seems (although I cannot confirm it) that the poll asked the following question:

Should the Supreme Court base its rulings on what the Constitution means in current times or meant as originally written?

This is how I would design the poll if I wanted to increase its support for the living Constitution approach, and so I assume that was what they did.

What's wrong with the poll?  There is no single answer as to what "the Constitution means in current times."  That is the problem.  Instead, the poll should say something like what "judges today believe the Constitution should mean in current times."  To make it totally fair, one could even correct the originalism choice with "what judges believe the Constitution meant as originally written."  

Then, let's see the results.  

Cross posted at the Originalism Blog.

https://rightcoast.typepad.com/rightcoast/2011/06/polling-originalism-versus-the-living-constitutionmike-rappaport.html

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Mike Rappaport
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Comments

It also assumes the conclusion that it already means something different in "current times."

Posted by: john knox | Jul 1, 2011 5:40:40 AM

Still, the slightly stilted wording implies to me that someone drafting the question knew the meaning of "contemporary", so hats off for that.

Posted by: dearieme | Jul 1, 2011 11:31:48 AM

Personally, I would answer, "neither", and I would expect any reasonable person to do likewise.

Posted by: Dan Simon | Jul 2, 2011 9:05:29 PM

Also bear in mind that the respondents are quite capable of saying one thing in principle and rewarding another in practice.

Posted by: molly | Jul 5, 2011 12:56:29 PM

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W

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M

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