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Originalism Bolsters the Democratic Process by Checking Judges

Nov. 15, 2022, 9:00 AM

In his landmark 1803 opinion Marbury v. Madison, Chief Justice John Marshall famously observed, “It is, emphatically, the province and duty of the judicial department, to say what the law is.” Marshall continued, “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

But how? What rules should govern and apply to judicial interpretation?

In the ensuing years, judges and legal scholars have debated and developed two dominant, but competing, answers to this fundamental question: originalism and the living Constitution.

By originalism I mean a method of interpretation based upon the original public meaning of a statute, rule, or constitutional provision as it was commonly understood at the time of enactment. By living Constitution I mean the method of interpreting the Constitution according to an evolving or adapting meaning.

Benefits of Concept

The former offers several advantages and should be preferred.

First, originalism respects the democratic process, requiring judges to heed what the political representatives—as elected by the people—actually enacted into law.

Originalism does not divorce the judge’s interpretative application of the law from what the people who passed the law understood themselves to be doing. A living Constitution judge will often do exactly that, substituting today’s view of the socio-legal landscape for the view that was actually enacted into law at the time.

Second, originalism and the application of the original public meaning is more objective. It provides an ascertainable and rational basis for assessing whether judicial cases have been decided properly or poorly.

A living Constitution that allows judges to apply an evolving standard of meaning affords no objective critique of judicial rulings. Living Constitution decisions merely reflect today’s (or the judge’s own) prerogatives. But tomorrow’s may be different, and all legal ground quickly turns to shifting sand.

We can say that a judge engaged in bad originalism if they fail to properly ascertain the original public meaning. Yet in living constitutionalism, the most damning critique is that a reader disagrees with the outcome, because there is no fixed meaning to the law itself.

Disputes Among Originalists

Unsurprisingly, then, there are genuine disagreements regarding original public meaning.

For example, take the First Amendment’s Free Exercise Clause. Originalist scholars vigorously debate whether Justice Antonin Scalia’s opinion in Employment Division v. Smith denying religious exemptions from neutral, generally applicable laws is correct based upon the original public meaning of the First Amendment.

An originalist jurist must grapple with this disagreement. But for a living constitutionalist, the question at best is what policy outcome does society now prefer, and at worst what policy do I prefer.

In such an approach, there is no need to figure out what the Free Exercise Clause actually meant when it was adopted—all that matters is what five justices think it should mean today. The court becomes something of a super-legislature—or philosopher kings.

Checks and Balances

Third, while respecting the democratic process, originalism also enforces the Constitution’s check on abuses of the majority. Because the Constitution requires a super-majority to enact amendments, the Constitution protects minority rights, and sometimes unpopular minority rights, that still need defending.

If living Constitution judges can simply point to evolving societal standards or revised definitions as the basis for their constitutional interpretations, then a purported majority—without casting a vote, but instead divined by judges—could simply modify or even nullify those protections and put minority or unpopular positions at risk.

Furthermore, abandoning the Constitution’s original public meaning effectively changes the established means of amending the Constitution.

Article V of the Constitution establishes the amendment process that we must follow if and when we believe the Constitution has not kept pace with the times. That process is not easy, and for good reason. It should be difficult to change our fundamental law—the law against which other popularly-enacted laws are judged.

But why bother with a difficult political process that requires convincing super-majorities at multiple levels of government, when you could instead update the Constitution with five votes on the Supreme Court?

Finally, originalism, unlike living constitutionalism, has the significant benefit of hewing closely to Marshall’s observation that judges ought to engage in interpretation. Interpretation is the effort to determine what words mean, which inherently assumes that words, in fact, have meaning. If they don’t, then the judicial process itself is little more than an assertion of raw power.

Words, rules, statutes, and constitutions do have meaning. The judicial duty is to understand them as they were written and apply them without prejudice to the cases and controversies that arise. Originalism holds judges to that duty.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Robert Alt is the president and CEO of The Buckeye Institute in Columbus, Ohio. He was previously a director at The Heritage Foundation.