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Publication Information

41 Mitchell Hamline Law Journal of Public Policy and Practice, issue 1 101 (2020)

Abstract

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct portrayals of attributes. The elves speaking Sindarin and Quenya seek beautiful things, the orcs are former elves that have been corrupted in their language, the dwarves are logical in their Khuzdul language, etc. However, the natures of the languages are subject to change. This is exemplified when Melkor, one of the original beings, created by Eru Ilúvatar (the original being), turns dark when the original singing—evidently before the creation of language—of the Ainur becomes dissonant with Melkor’s choice to sing differently.

Natural law has been compared to originalism in the sense that the two have overlapping elements. Again, it may be fair to compare natural law to the musical order set by Eru Ilúvatar. If this premise is accepted that natural law is originalism, the order set by Eru Ilúvatar, then the dissonance caused by Melkor can arguably be the concept of a living constitution—or at least that the two have overlapping elements.

This is not a critique of living constitutionalism and similar theories of constitutional interpretation. But, rather, an interpretation of how the two theories could be metaphors of how constitutional interpretation as seen through literary—that is myths existing in an inception of literature, such as, the myth of The Silmarillion set within the works of Tolkien—lenses. Indeed, for purposes of this analysis: living constitutionalism and originalism could be flipped, arguably.

This deviation from Eru Ilúvatar’s original plan does not have to necessarily result negatively. There are others who fall out of line with the original conception of Eru Ilúvatar, such as “men” who are endowed with the gift of a short life and thus are industrious and creative. Arguably, it could also be extended to the world of Hobbits who are evidently related to men—but their origin story is never clearly delineated in any of Tolkien’s writings.

Thus, this shows that the story of the Silmarillion primarily and in part The Lord of the Rings exemplifies rifts of originalism and living constitution doctrines. These perhaps are not just relevant for Constitutional interpretation purposes.

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