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Originalism, Living Constitution and the Power of Judicial Review

constitution_2About a month ago, I began a conversation with some friends about the disturbing trends of young adult literature which led me to write an article about it. The conversation then took a turn, as one friend asked for our opinions of teaching creationism in schools, which I also turned into an NSB post. The third and final evolution of my 60+ email thread involved a lengthy debate on constitutional interpretation and the power of judicial review. The discussion, at that point, had already waded its way through the idea of separation of church and state, the First Amendment and its original intent, and modern trends that exposed what one friend called “the truer notion of the First Amendment”. This is where the debate solidified. What are these “truer notions” and what should that be based on? What are the duties of the judge and how has that become conflated with personal, political ideology? How should our understanding of the Constitution evolve (if at all), over time? The following are excerpts of discussion from friends who fall into the “originalist” and “living Constitution” camps.


How does basing the “truer notion” on modern trends make it “more true”? Not all modern trends are for the better. An example illustrates the dangers of reading things into the Constitution that are arguably in line with “truer notions” of the Bill of Rights.  Congress enacted the Missouri Compromise of 1820, which prohibited slavery in the Federal territories.  But the Supreme Court in Dred Scott held that Congress could pass no such law, because slaves were “property” under the 5th Amendment of the Constitution, “property” which could not be taken away, notwithstanding a duly enacted law.  The 5th Amendment, however, says no such thing.  Nevertheless, seven Justices read in that principle — in accordance with their ideal of the Constitution.  One man’s view of progress is another man’s regress.

I am arguing in favor of an interpretive methodology that constrains judicial discretion. Originalism does that; looking to modern trends or an idealized reading of the Constitution does not. “Living Constitution” is simply code for judges reading their own subjective policy preferences into law–a job for legislators. Judges have the duty to interpret the law — nothing more.  We are a nation of written laws, not men. If we come to live in that unfortunate world, we should rethink judicial review.

Living Constitution:

While I agree that the more activist, “living Constitution” Court can become more subjective and political, I feel that they should have the flexibility to use that power (as they have repeatedly throughout history) to protect the rights of those who are oppressed and lack the political power to remedy their situations through the legislative branch alone. As Geoffrey Stone from U.Chicago points out:

Alexander-Hamilton-001-310x310“As Alexander Hamilton observed in the Federalist Papers, we must rely upon judges who have life tenure and are thus insulated from political pressure to protect “the rights of individuals from the effects of those ill humours which … sometimes disseminate among the people.” In other words, judicial deference is inappropriate when there is good reason to believe that prejudice, intolerance or bigotry has tainted the fairness of the political process.

Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of decisions that have faithfully interpreted and applied the Constitution in circumstances in which judicial activism was necessary to guard against such majoritarian dysfunction. These decisions ended racial segregation, recognized the principle of “one person, one vote,” forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women and upheld the right of “enemy combatants” to due process of law, to cite just a few examples. What these decisions have in common is that they protect the rights of the disadvantaged and the oppressed. Such decisions animate the most fundamental aspirations of our Constitution and are necessary and proper examples of judicial activism.”

One Originalist’s Rebuttal:

There is no freestanding legal authority for judges to cure society’s ills or compensate for “majoritarian dysfunction.”  And Professor Stone can find nothing in the law that permits judges to enforce “the rights of the disadvantaged and the oppressed.”  Prof. Stone wants judges to bend the law in order to enforce liberal policy, plain and simple.  Too many judges think like this today, and it is dangerous. Stone’s only authority is a partial sentence from Hamilton’s Federalist 78.  But here’s the entire paragraph from Federalist 78, which makes evident Stone’s distortion:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

Hamilton’s point is that the Constitution’s text itself protects individual rights from the excesses of Congress.  It is important that judges should not be afraid of the majority when interpreting that text, which bestows only limited powers to Congress and a Bill of Rights.  If judges are doing their jobs interpreting the law — and not legislating additional protections — then the Constitution will function as intended.

dredBack to Dred Scott.  There, the judges believed they were protecting oppressed Southerners from majoritarian, Northern encroachment — exactly what Geoff Stone thinks judges should do.  The dissent in that case had this to say:  “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”  The logic of your principle will lead to an unelected “elite,” governed by nothing other than their personal predilection, deciding what is “best” for the entire country.  That is not what the Constitution prescribes.

Living Constitution Response:

Policy-making is not a direct power of the Supreme Court, but no one can deny the policy implications of the Court’s major rulings. The situation as I described it is not anything new – we know that it’s already been in practice for decades. Kennedy’s DOMA opinion is a great example of this. The Courts have repeatedly used legal reasoning and interpretation to change and overturn existing policies, and you may feel that they’ve often overstepped their bounds and been overly liberal in their conclusions. But the fact that such acts have been allowed so far without breaking down the whole system implies to me that this is not some rogue fluke – at this point, it’s become a normal part of our system of government. That’s why the fights over judicial confirmations have become so much more heated over the last half century. The “policy-making” nature of the Court is not some radical suggestion, it’s the status quo – the burden for changing it would fall on those attempting to remove the powers that the Court has exercised for many decades.

In your argument, you talk about judges deciding on issues based on “purely political reasons, not based on the law.” No actual judicial decision would ever come down that way. If all laws were straightforward, clearly written and obvious in their intentions, there wouldn’t really be a need for outstanding judges. But most laws leave some room for interpretation, sometimes a significant amount of room, and judges often approach these problems with differing philosophies. All judicial decisions are ‘based on the law,’ but obviously they can arrive at two very different, well-reasoned and well-cited conclusions while pulling from the same body of statutes and precedents. The recent Obamacare ruling could have landed either way, and there would have been a compelling case for either side regardless of who actually won the majority. With the lower courts, I expect a certain deal of uniformity in how they decide on cases. But the questions that come to the nation’s highest court are not that simple.

i-can-sense-their-thoughtsBy your descriptions, you make judges who prescribe to the “living Constitution” philosophy sound like tyrants, unanswerable to the people and unrestrained in their power. Obviously that’s not the case – even the most partisan judge has to find a legally and Constitutionally plausible basis for any opinion they express. And again, while the Court is in no ways perfect, their list of sins is minuscule compared to the Executive and Legislative Branches, both of which must cater to public opinion and often fall to forces that advocate for regressive ideas like segregation, Chinese exclusion, Japanese internment, and many other democratically approved endeavors that we later realized (in saner and wiser times) were contrary to our values as a nation.”

The “nuclear option” scenario that I described, and the core of Prof. Stone’s argument, is what we need when the people themselves (and by extension, their democratically elected President and Congress) fail to uphold our own core values (as interpreted through our Constitution, our history, etc.). That’s the “majority oppression” scenario that can occur in a democracy: Protestants attempting to force their values and customs on religious minorities, white Americans trying to make it harder for people of color to vote, or the U.S. government deciding to strip tens of thousands of U.S. citizens of Japanese descent of all their property and relocating them into camps. When these instances occur, the Court becomes the only remaining force with the moral authority and protection from public opinion to right these wrongs in accordance with the Constitution (as it helped do with segregation, not with the specific examples listed).

A Tangent & Tie-Back:

Side question about originalism: Since the Constitution was essentially a document of compromises, one should be able to look through historical records and find competing interpretations and intents from the framers. When confronted with numerous perspectives in this regard, how do originalists decipher the correct path?

That is a very good question.  There is a difference between “original intent” and “original understanding.”  The former looks to the intent of the Framers.  The latter looks to what the words meant to the public at the time they were enacted into law.  I subscribe to the “original understanding,” avoiding most of the difficulties you raise.  I think the “original understanding” approach makes more sense — law governs the public and so it should be how the public understands the words; the public should not be governed by any secret intent or motivating desires of Ben Franklin or James Madison — that would be rule of men, not law.  That’s why it is important to look at the dictionaries used at the time.  Other contemporaneous documents, such as federalist papers and convention debates, are fair game — so long as you are trying to determine the public understanding of words like “establishment of religion” or “free exercise thereof” as opposed to the intent of the Framers — although I acknowledge that the line between the two can sometimes be hard to discern.

foundersThat is why history is very important.  If widespread practice X existed at the time of ratification of the First Amendment and for a long time afterwards, then that is strong, if not conclusive, evidence that widespread X is permitted under the First Amendment.  Put another way, the phrases “establishment of religion” and “free exercise thereof” do not prohibit widespread practice X.  Like I said, for originalists, most cases are very easy, like religious studies or prayer in schools.  Some cases are hard where the historical evidence is scant and conflicting (for example, whether anonymous speech is protected under the First Amendment).  Going back to the root of the thread, we may have arrived at a more enlightened and secular view of religion in schools today given our religious pluralism.  But I don’t think the Constitution prohibits schools from teaching religion or having prayer if they wanted to.

We don’t read Shakespeare or Dickens based on our evolving understanding of the words used in their works.  We consult a glossary to figure out the meaning of the words as they were written and understood at the time.  “Power” for example had a very different meaning in Shakespeare’s time than now.  Interpreting a legal text should not be any different.  Unlike Shakespeare or Dickens, however, we can and do update the law.  (I do not want to live in the 1770s where, for example, most crimes were punishable by death.)  But again, I think that is a job for legislators, not judges.


Paul G. Lee
Paul is a displaced Southern California native who currently resides in Washington D.C.. His post-collegiate experience was highlighted by his move to the East Coast where he worked briefly for Congress. After his stint as a public servant, he jumped into the private sector and currently works as a consultant with a D.C.-based technology firm.

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