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3. The theory of originalism preserves the original intent of the makers of the
Constitution.
a. The intent to be ascertained in an ambiguous provision of the Constitution
should not be according to the changing circumstances and views of
today, but should be according to the intention of the lawmakers then.
Since they were the ones who making the Constitution, their intent and
purpose in making it should always prevail whenever there is doubt as to
its provisions.
b. There are three well-settled principles of constitutional
construction: first, verba legis, that is, wherever possible, the words used
in the Constitution should be given their ordinary meaning except where
technical terms are employed; second, where there is ambiguity, ratio
legis est anima, meaning that the words of the Constitution should be
interpreted in accordance with the intent of its framers; and third, ut magis
valeat quam pereat, meaning that the Constitution is to be interpreted as a
whole.8 These cardinal rules prevail when the wordings of the Constitution
are subject to interpretation. It should always be interpreted according to
the intent given by its legislators to ascertain their rationale in drafting and
enacting the Constitution which continues to be binding and in force. In
doing so, we defer not to the “letter that killeth” but to the “spirit that
vivifieth,” to give effect to the lawmakers will.9
c. The Preamble serves as a useful aid in ascertaining the meaning of
ambiguous provisions in the body of the Constitution because it serves a
source of light for setting down the origin, scope and purpose of the
Constitution. Joaquin Bernas, S.J., who was a member of the 1986
Constitutional Commission, states that the word “love” in the Preamble is
a monument to the love that prevented bloodshed in the Februrary
Revolution; the mention of “truth” is a protest against the deception which
characterized the Marcos regime; and “peace” is mentioned last the fruit of
the convergence of truth, justice, freedom and love. 10 As one of the
lawmakers of the 1987 Constitution, such intent expressed by him should
always prevail because it shows their purpose in enacting the 1987
Constitution, and such intent should be preserved as to prevent changes
on mere sentiments or opinions of society.
6
Joaquin G. Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer (2011), p. 541.
7
Ibid., p. 542.
8
Francisco v. HRET, G.R. No. 160261, November 10, 2003
9
Cometa vs. Court of Appeals, 351 SCRA 294 (2001)
10
Joaquin G. Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer (2011), p. 1.
enacted. This intent is primarily determined from the language of the
statute.11 In the same way, the provisions of the Constitution, if doubtful,
should be interpreted according to the intent given by those who created
it. It should not resort to changing circumstances, but should resort to the
rationale achieved by the makers in enacting it.
b. Living constitutionalism does not provide a source of its interpretation
other than mere circumstances and views. It necessarily implies that since
there is no actual basis of interpretation, there is also no established point
or extent of such interpretation. There is danger in adopting this theory
because there is no assurance as to its origin and scope. Such changing
circumstances and views are not based on legislative enactments or
written codifications, but are merely based on opinions and sentiments. In
the words of Justice Scalia, an originalist, “if it’s a Constitution that
changes, you could give it whatever meaning you want and when future
necessity arises, you’d simply change the meaning.”12
c. Since there is no fixed basis for its interpretation, our interpreters will have
a difficult time in establishing its rationale as to their interpretation of the
Constitution. There is impossibility of achieving any consensus on what,
precisely, is to replace the original meaning once it is abandoned.13 We
must also consider that the Supreme Court is merely composed of human
beings susceptible of error, in the words of Justice Isagani Cruz, “…is not
an ivory tower occupied by demigods but not an infallible institution
composed of persons slightly higher than their fellowmen, perhaps, but
also showing their foibles and failings.”14
11
Rolando Suarez, Statutory Construction (2015)
12
Antonin Scalia, Originalism: The Lesser Evil (1989)
13
Ibid.
14
Wen-Chen Chang, Constitutionalism in Asia: Cases and Materials (2014), pp. 524-525
15
Angara v. Electoral Commission, 63 Phil. 139
16
Castillo v. Sandiganbayan, 427 Phil. 785, 793 (2002)
6. There is no need to adopt the theory of living constitutionalism because judicial
decisions which apply or interpret the Constitution or our laws already form part
of the legal system of the Philippines.
a. Judicial decisions applying the laws or the Constitution shall form part of
the legal system of the Philippines.17 Judicial decisions, though not laws,
are nonetheless evidence of what the laws mean, and it is for this reason
that they are part of the legal system of the Philippines. Judicial decisions
of the Supreme Court assume the same authority as the statute itself.18
These judicial decisions are precedence. Hence, such should not be
merely stricken off due to changing circumstances.
b. The Constitution and our laws are to be interpreted or construed in such a
way that would promote the welfare of the State and the people, and such
can be done through judicial decisions by the interpretations of the court. If
we allow interpretation based on living constitutionalism, we risk the
possibility that judges will mistake their own predilections for the law. “The
inevitable tendency of judges to think that the law is what they would like it
to be will…cause most errors.”19
c. Although it is true that the Constitution does not embrace everything that
is needed to be covered in order to embrace all the needs of our society,
we must also recognize the difficulty in interpreting based on changing
circumstances because of the variety of interpretations.
17
Article 8, Civil Code of the Philippines
18
Philippine Trading Corporation v. Commission on Audit, G.R. No. 205837, November 21, 2017
19
Antonin Scalia, Originalism: The Lesser Evil (1989)