Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.

1. First, the website writes:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

This claim appears to explicitly endorse a “living Constitution.”  To be sure, the technical claim could be interpreted in a way that an originalist would endorse.  Applying a broad provision such as the Commerce Clause to transactions made over the internet would involve a new situation.  But originalists would typically not describe those as involving a living Constitution.  That term suggests creativity on the part of the justices.

2. Second, the website states that “While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.”

It is not entirely clear how to interpret this claim, but the language before and after this quote seems to suggest that the Constitution does not explicitly acknowledge judicial review.  This is very misleading.  It is true that the Constitution is not explicit about all forms of judicial review, but it does clearly indicate that there will be judicial review of state laws.  The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The italicized language makes clear that judges are supposed to be enforcing the Constitution against laws enacted by legislatures.  Thus, the principal argument against judicial review – that the power to determine whether a law violated the Constitution in a particular case was not judicial power – is foreclosed by the text of the Constitution.  It is true that the existence of judicial review of a congressional enacted law is not unambiguously addressed by the constitutional text, but once judicial review is allowed at the state level, there is a strong argument that the judicial power includes it at the federal level as well.

3. A third problem with the website is its claim that

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying.  Both are in my view mistaken.  The New Deal viewed this quote as endorsing the idea that judges adapt constitutional meaning to changing circumstances and values.  But that was not Marshall’s point.  He was merely saying that the Constitution was a short document that did not have the detail of a code.

Perhaps I will check back in 6 more years to see whether the Supreme Court has changed the website.  But with a new originalist Justice, isn’t it time to adopt a more neutral description of the Court’s function?

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael Rappaport

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.