The recent death of Supreme Court Justice Antonin Scalia has sent the political world into a frenzy. Amidst the blatant partisanship, accusations of hypocrisy, tributes, denigrations, and conspiracy theories, there exists a serious discussion about the nature and the future of the Court and its kinda-sorta-but-not-always conservative majority. Scalia was, by every reasonable definition of the term, a conservative. He was, however, also an originalist, meaning that, wherever and whenever there was ambiguity, he deferred to the original intent of the drafters and signatories of the Constitution.
Originalism is celebrated by many and loathed by many others. The roots of this preference and antipathy are very likely rooted in individuals’ political philosophies and views on the proper role of government.
Consider, first, an antipathy to originalism. If we are to dismiss original intent as a basis for interpreting the Constitution, then the job of the Supreme Court is – what, exactly? To apply personal judgment as to the meaning of the Constitution? Or, is it to simply interpret the application of whatever laws Congress wrote, regardless of whether they conflict with the Constitution? Consider the implications of each of these.
To apply personal values to the Constitution is to elevate individuals above the law, to view the nation as one of men, not laws. To apply current legislation based on that legislation’s intent, regardless of its conflict with the Constitution, is to obviate the essence of limited government and grant Congress carte blanche authority to act as its majority wishes. This would make the nation a representative democracy, rather than a republic. Lest anyone think that’s a good idea, remember that a democracy is two wolves and a sheep deciding what’s for dinner, whereas a republic protects that sheep from the wolves.
If we are to respect and accept that America is founded on the basic premise of limited government, then we MUST side with originalism. The nuances of language change over time, and a particular word may have a somewhat different meaning today than it did when quill was laid to paper a couple centuries ago. If we were reading an old text, we’d understand this and “translate” the word into modern idiom in order to preserve the author’s intended meaning and interpretation. If someone seeks to faithfully stage a Shakespearean play with modern language, he’s not going to set out to change what Shakespeare wrote according to his own whims.
Of course, someone might wish to stage a Shakespearean play with modern context AND alter it to fit modern societal norms. That’s one rationale for a non-originalist interpretation of the Constitution. The problem therein is that the law is no longer the law, but instead is whatever the people currently at the top decide it is. Some may argue that’s the case no matter what, but someone committed to originalism places the law above himself, rather than himself above the law. Furthermore, the Constitution DOES provide a mechanism for alteration. We’re not locked into the societal views of yore, we can make changes to our law. We’ve done so seventeen times since the Constitution was first ratified.
Making those changes is, of course, difficult. It’s intentionally difficult, and that’s part of what bothers the anti-originalists. They want government to do as they wish, oftentimes without the consensus of a supermajority as is required to change the Constitution. They don’t believe in limited government if limited government stands in the way of their ideas and goals. In short, they don’t believe in the American system of government. This is the only honest way to interpret anti-originalism. But, without originalism, they subject themselves to the whims of the people in power. That may make them quite happy when it’s “their” people in power, but when the pendulum swings the other way, they’ll be wishing desperately for originalist restrictions on the folks in charge.
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