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July 25, 2005

Originalism

With Justice Sandra Day O’Connor’s announcement that she will retire as soon as a new justice is approved by the Senate and the probable retirements of Chief Justice William Rehnquist (though apparently not too soon) and Justice John Paul Stevens looming on the horizon, the question of judicial philosophy is more topical than it has been in many years. Yet process tends to take a back seat to results, as is so often the case. Republicans tend to look for President Bush to nominate justices who will vote the way Republicans want, most notably in overturning Roe v. Wade, the landmark 1973 decision legalizing abortion. Democrats, meanwhile, tend to seek judges who will defend favored court decisions such as Roe, Griswold v. Connecticut and more recently Lawrence v. Texas. On both sides, legal philosophy is a distant second behind gaining favored court decisions. This has led the country to where it is today: no longer a republic, but an oligarchy governed by nine men and women in black robes.

This argument doubtless strikes many ears as extreme. The writer sets out the following proposal against those who suggest the claim extreme: the only judicial philosophy that can preserve the Republic is what is commonly known as originalism, or interpreting the Constitution based on what the words meant at the time they were penned. Readers who incline towards the left end of the political spectrum are likely to object to this claim, as originalism is frequently cited by Republicans when referring to judges. It is true that some Republicans do press for originalist judges, and they are to be commended for doing so, but selections like Robert Bork tend to undermine those claims, as Republican so-called originalists tend to still skip over certain parts of the Constitution when it suits their political goals, particularly the Ninth and Tenth Amendments. This so-called originalism can hardly be taken seriously, as those amendments are just as much a part of the Constitution as the rest of the document and must be considered alongside with the rest.

Adherents of the 'living Constitution' claim that the document's meaning must change with the times. The country has seen significant change in the intervening two centuries since the Constitution was ratified. Technological and cultural changes have rendered many provisions of the Constitution obsolete; the Third Amendment is a prime example of this, as are the provisions regarding bills of attainder and titles of nobility. The Constitution as written certainly never contemplated issues such as environmental protection or consumer protection, yet both these issues and many others are generally viewed as important jobs for the modern state. Without a Constitution that changes with the times, the government would be unable to provide most of the services the average American has come to count on it for.

This argument is beguiling because it is in fact accurate. The Constitution does need to change over time as circumstances change. The need to protect the environment was not evident in eighteenth century America. Yet this need has become clear to people across partisan boundaries, even as certain policies spark disagreement. Had the Constitution not changed to reflect this need, America might still be plagued with the environmental disasters of the mid-twentieth century. So the argument that a living Constitution is necessary appears logical and valid at first glance. But this line of reasoning omits the built-in method for keeping the Constitution in tune with changing circumstances: the amendment process. While less responsive than judges ruling that the Constitution permits something it clearly does not, the amendment process carries with it a legitimacy judges simply cannot hold: that of the popular will. The founders rightly feared democracy as the rule of the mob, yet ultimately they had to place power somewhere and they chose the people over a ruling elite for the best of reasons: as long as the power rests with the people, they can take it away from any one individual. If power rests instead with a king or a set of nobles, there is little to protect the people from the inevitable bad seed. America does in fact have a living Constitution, but its life depends on the will of the people.

If the Constitution as written does not provide for a governmental power that the people choose to surrender to their government, they must make clear their desires through the amendment process. If the Constitution is instead construed to mean whatever a judge claims it means in clear violation of the text, then the country has no Constitution at all. The Constitution is supposed to be the supreme law of the land. Like all laws it has very specific meaning, for without specific meaning a law cannot function. When government establishes a law making it illegal to murder, the law cannot function properly without clear definitions of its terms. Should these terms not be laid out beforehand, the law is incapable of proper function, for none can understand the law well enough to enforce it. A vague law can be used by those in power to strike at those they with to harm while allowing their friends and supporters to violate it with impunity. Even in the absence of clear corruption, a vague law invites subconscious abuse by those who must enforce it. Such is the problem faced with the Constitution as it is currently interpreted. If the Constitution is not to be enforced based on what its words say, then it can only be enforced by the desires of the judges of the Supreme Court and there is no constancy to the law that is not granted by the restraint of those justices. If they argue a law is unconstitutional, there is nothing else to be done as the system now stands. Conversely, if they decide that the Constitution now says that a particular course of action is necessary, then it is set in stone. This leaves the nation at the whim of its judges, who can declare whatever they choose to be law and leave the country to follow their rulings. And so we see battles over the beliefs of those men and women selected to serve on the courts. Without originalism to guide them, these justices are free to judge cases and interpret law according to the dictates of their conscience, and therefore they are possessed of far greater power than the writers of the Constitution ever intended. Thus, an oligarchy replaces a republic, and the Constitution becomes a symbol.

The writer does not intend to suggest that the Constitution should be considered some kind of holy writ that is perfect just as it is. Far from it. Adherents of a living Constitution are correct to note that the document has been overcome by events in certain areas. The writer would support a number of amendments to bring the Constitution into line with the modern world, or even a convention to draft a new document better suited a new style of government if that were the wish of the people. But the writer believes that whatever document is selected or amended to guide the government, it must be interpreted to mean what it says, even when that train of thought leads to bad results. For only by enforcing the law as it is can the country have any laws at all. By all means the laws should be modified as necessary over time to fit the needs of the people, but when a law is in place, it must be the law.