Judges and politicians

The problem with any approach other than “originalism” as a form of constitutional interpretation is that it undermines the rule of law.

If judges are left free to interpret constitutional provisions any way they wish, to inject their particular biases and ideological agendas, then we are no longer a “nation of laws” but simply a nation of men. Under such circumstances, the judge rather than the document becomes supreme.

The essence of originalism is that constitutional provisions mean what those who crafted and ratified them at the time thought they meant and that those intentions should be the basis for interpretation; that judges should apply the law as intended rather than take liberties with it.

The critique of this approach has always come in the same “strawman” form—that since there was no way for the founders (or those who crafted and approved amendments to the document thereafter) to have anticipated societal and technological changes, judges should not be unduly constrained by original intentions.

This is an expression of either ignorance or mendacity, because no supporter of originalism denies the need to or the difficulty of applying constitutional provisions to new problems and circumstances; to the contrary, originalism has always accepted the elasticity of constitutional provisions in addressing such problems and circumstances. What it doesn’t do, however, is permit the creative, expedient reinterpretation of those provisions to achieve desired policy results.

Under originalism, in other words, judges are prevented from substituting the Constitution they prefer for the one that actually exists. Under any other approach, constitutional interpretation becomes simply a vehicle for the realization of contemporary ideological goals.

We either live under the rule of law or we don’t—either the elected representatives of the people make laws or judges do; there is nothing in between, not “a bit of this, a bit of that.” Either license is granted or it is withheld, and it cannot be granted to judges without renouncing not just the rule of law but the idea of democracy itself.

For example, the Constitution forbids through the Fourth Amendment unlawful search and seizure, but new technologies (thermal imaging) make it possible for authorities to conduct searches without entering premises. Nonetheless, the original intent—to make Americans secure in their private residences from capricious government intrusion—remains the same; the only question is how to apply it in cases where technology has changed.

To decide such cases requires no reinterpretation of constitutional provisions, only that such provisions be faithfully applied by jurists in the proper spirit to new circumstances.

As Justice Neil Gorsuch recently wrote, “Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.”

The laws appropriately change as society changes and judges receive the task of faithfully applying those laws in the cases brought before them. We have a “living” Constitution only because it remains the supreme law of the land and is capable of being revised by the amendment process inserted in the document for that purpose, not because judges have the right to update it to their liking.

That that amendment process is time-consuming and difficult is precisely the point—that the enduring nature of constitutional principles mitigates against casual alteration as a response to the ephemeral passions of the moment.

Yes, applying constitutional provisions that were written more than 200 years ago to contemporary cases can be challenging, but such challenges hardly justify tossing out established understanding and replacing it with new understanding that conveniently comports with our (or, more precisely, judges) ideological preferences. Along these lines, those who claim that original intent is difficult to determine are usually those least comfortable with the results of its application.

Judicial activism, the idea that judges should seek to move society forward, by their lights, to in essence legislate from the bench, has always been a double-edged sword. What is achieved by it can be undone by it, and there is no inherent guarantee that such a methodology will always produce rulings that tilt in the same ideological direction; rather, it is an indiscriminate assault upon the rule of law that can have no other effect than to reduce the judiciary to the object of a raw competition for political power.

The late great Antonin Scalia was once asked to identify a case where he was forced by originalist doctrine to rule against his personal political preferences. Scalia responded, “In the Kingdom of Scalia, flag burning would be banned. But I don’t live in that land. … My job, my duty, is to determine what the Constitution requires, permits, and forbids. Study of the First Amendment’s original meaning reveals that the Constitution gives broad protection to speech, especially political speech, very much including opinions I detest. Constitutional protection extends to what my court calls ‘expressive conduct.’ For example, burning the flag is conduct that expresses a political opinion—to my mind, a repulsive one, but a political opinion nonetheless. Accordingly, I cast my court’s fifth vote to uphold the right of United States citizens to desecrate the American flag.”

Precisely so.