The death of Associate Justice of
the Supreme Court of the United States Antonin Scalia has thrust into public
conversation his dedication to the constitutional doctrine of “Originalism.”
Because of the crucial importance
of filling Justice Scalia’s seat on the High Court with another Originalist,
the American public must be enlightened about what that doctrine is, why it is
the only legitimate method of constitutional adjudication, and thus why the
next Supreme Court justice must be a
rock-ribbed originalist.
In my 2012 book The Supreme Court Opinions of Clarence
Thomas, 1991-2011 [Second Edition] I wrote at length about Originalism. I
reprint a portion below (having deleted the extensive Chapter Notes.)
* * *
Although
the principle of originalism had been around for quite some time, not until
1985 was it formally presented to the organized bar. In July of that year,
Attorney General of the United States Edwin Meese III
delivered an historic speech to the American Bar Association at its meeting in
Washington, D.C. Meese’s speech caused a constitutional explosion whose
reverberations are still being felt, most notably in President George W. Bush’s
appointments of John G. Roberts, Jr., to be Chief Justice of the Supreme Court
of the United States and Samuel Alito to be an associate justice.
In his address to the ABA, Meese
reminded the assembled lawyers and judges of “the proper role of the Supreme
Court in our constitutional system”:
The text of the document and the original intention of
those who framed it would be the judicial standard in giving effect to the
Constitution.
After surveying the Court’s October
1984 term’s decisions in three subject areas — federalism, criminal
law, and religion — Meese asked:
What, then,
should a constitutional jurisprudence actually be? It should be a Jurisprudence
of Original Intention. By seeking to judge policies in light of principles,
rather than remold principles in light of policies, the Court could avoid both
the charge of incoherence and the charge of being either too
conservative or too liberal.
A jurisprudence
seriously aimed at the explication of original intention would produce
defensible principles of government that would not be tainted by ideological
predilection. This belief in a Jurisprudence of Original Intention also
reflects a deeply rooted commitment to the idea of democracy. The Constitution
represents the consent of the governed to the structures and powers of the
government. The Constitution is the fundamental will of the people; that is why
it is the fundamental law. To allow the courts to govern simply by what it
views at the time as fair and decent, is a scheme of government no longer
popular; the idea of democracy has suffered. The permanence of the Constitution
has been weakened. A constitution that is viewed as only what the judges say it
is, is no longer a constitution in the true sense.
Disabusing his audience of the
notion that a Jurisprudence of Original Intention was some newfangled fad,
merely an interpretive theory du jour, the Attorney General adverted to
the words of legendary Supreme Court Justice Joseph Story, written in the
nineteenth century, which were applicable not only to the Constitution
generally but also to statutory interpretation in particular:
In construing the Constitution of
the United States, we are in the first instance to consider, what are its
nature and objects, its scope and design, as apparent from the structure of the
instrument, viewed as a whole and also viewed in its component parts. Where its
words are plain, clear and determinate, they require no interpretation....
Where the words admit of two senses, each of which is conformable to general
usage, that sense is to be adopted, which without departing from the literal
import of the words, best harmonizes with the nature and objects, the scope and
design of the instrument.
A few months later, the Attorney General elaborated
his theme:
In recent decades many have come to
view the Constitution—more accurately, part of the Constitution, provisions of
the Bill of Rights and the Fourteenth Amendment—as a charter for judicial
activism on behalf of various constituencies. Those who hold this view often
have lacked demonstrable textual or historical support for their conclusions.
Instead they have “grounded” their rulings in appeals to social theories, to
moral philosophies or personal notions of human dignity, or to “penumbras,”
somehow emanating ghostlike from various provisions—identified and not
identified—in the Bill of Rights.
Meese was referring to the Supreme
Court’s liberal justices, and their allies in academia and the legal
profession, who worship at the altar of a “Living Constitution.” “One Supreme
Court justice,” Meese noted, “identified the proper judicial standard as asking
‘what’s best for this country.’ Another said it is important to ‘keep the Court
out front’ of the general society. Various academic commentators have poured
rhetorical grease on this judicial fire, suggesting that constitutional
interpretation appropriately be guided by such standards as whether a public
policy ‘personifies justice’ or ‘comports with the notion of moral evolution’
or confers ‘an identity’ upon our society or was consistent with ‘natural
ethical law’ or was consistent with some ‘right of equal citizenship.’”
The Attorney General could have
effectively quoted the “Living Constitution’s” high priest, the late Supreme
Court Associate Justice William J. Brennan, Jr. “[T]he Constitution,” according
to Brennan,
embodies the aspiration to social
justice, brotherhood, and human dignity that brought this nation into being. *
* * Our amended Constitution is the lodestar for our aspirations. Like every
text worth reading, it is not crystalline. The phrasing is broad and the
limitations of its provisions are not clearly marked. Its majestic generalities
and ennobling pronouncements are both luminous and obscure. * * * When Justices
interpret the Constitution they speak for their community, not for themselves
alone. The act of interpretation must be undertaken with full consciousness
that it is ... the community’s interpretation that is sought. * * * But the
ultimate question must be, what do the words of the text mean in our time. For
the genius of the Constitution rests not in any static meaning it might have
had in a world that is dead and gone, but in the adaptability of its great
principles to cope with current problems and current needs. * * * Our
Constitution was not intended to preserve a preexisting society but to make a
new one, to put in place new principles that the prior political community had
not sufficiently recognized.
Not content to loose this blather,
Brennan, in a not-so-veiled reproach to originalists, referred to
those who find legitimacy in
fidelity to what they call “the intentions of the Framers.” In its most
doctrinaire incarnation, this view demands that Justices discern exactly what
the Framers thought about the question under consideration and simply follow
that intention in resolving the case before them. It is a view that feigns self-effacing
deference to the specific judgments of those who forged our original social
compact. But in truth it is little more than arrogance cloaked as humility.
Twenty years after Meese’s remarks,
in an article for a leading Internet website—www.frontpagemag.com — entitled
“Originalism Above All Else,” Steven Geoffrey Gieseler explained originalism
this way:
Originalism alone produces a body of law evincing the
will of America’s citizenry. America has assented to the Constitution as the
nation’s supreme law, altered only by its own process of amendment. Every day
that it remains unchanged, it is ratified again as our governing document. Any
deviation from the Constitution that occurs outside of its own terms not only
lacks the consent of the governed, but violates it. This includes deviation by
judicial fiat. * * * An originalist judge’s opinions are moored to the intent
of the drafters of the Constitution and its amendments, not the faddish slogans
of the day. His or her own predilections are subjugated to our nation’s
founding papers. This results in a coherent and consistent interpretation of
laws. More importantly, originalism results in a canon blessed with America’s
consent via its adopted Constitution.
In 2005, Robert H. Bork, former law
professor, judge of the United States Court of Appeals for the District of
Columbia Circuit, and cruelly defeated nominee for a seat on the Supreme Court
of the United States, observed that
For the past 20 years conservatives
have been articulating the philosophy of originalism, the only approach that
can make judicial review democratically legitimate. Originalism simply means
that the judge must discern from the relevant materials—debates at the
Constitutional Convention, the Federalist Papers and Anti-Federalist Papers,
newspaper accounts of the time, debates in the state ratifying conventions, and
the like—the principles the ratifiers understood themselves to be enacting. The
remainder of the task is to apply those principles to unforeseen circumstances,
a task that law performs all the time. Any philosophy that does not confine
judges to the original understanding inevitably makes the Constitution the
plaything of willful judges.
In other words, the concept of a
“Living Constitution,” so central to liberal jurisprudence and evident in so
much Supreme Court adjudication, means no Constitution at all.
A “Living Constitution” is
anti-democratic because it removes from the public forum and from those
politically accountable, and thus from the electorate itself, important issues
of social, economic, and other policy, and reposes those issues in nine
unelected philosopher kings and queens appointed for life.
There is no worse example of the
“Living Constitution” in action than the case of Griswold v. Connecticut,
to which Attorney General Meese alluded when he spoke of “penumbras.”
A Connecticut statute provided that
“[a]ny person who uses any drug, medicinal article or instrument for the
purpose of preventing contraception shall be fined not less than fifty dollars
or imprisoned not less than sixty days nor more than one year or be both fined
and imprisoned”—proving, once again, that in a democracy popularly elected
legislators and governors can enact outrageous laws.
Because the federal Constitution
does not prohibit the states from enacting outrageous laws—indeed, the Tenth
Amendment expressly recognizes state power to enact laws, implicitly allowing
them to affect public health, welfare, safety, and morals—the Warren Court had
to find some other way to hold the Connecticut statute unconstitutional. The
chief justice assigned the task to Associate Justice William O. Douglas, a
darling of America’s liberals.
In a barely three-page opinion,
Douglas prospected his way through the Constitution. Although what he found was
fools’ gold, it glittered enough to satisfy six more of his colleagues.
According to Douglas, prior cases
of the Supreme Court “suggested that specific guarantees in the Bill of
Rights”—dealing with speech, press, association, quartering soldiers, search
and seizure, self-incrimination, and the education of one’s children—“have
penumbras, formed by emanations from those guarantees that help give them life
and substance.” On the basis of these “penumbras” and “emanations”—but not a
shred of constitutional precedent or other authority—the Warren Court simply
invented a constitutionally guaranteed “right of privacy.”
For the seven-justice majority,
Douglas wrote:
We deal with a right of privacy
older than the Bill of Rights—older than our political parties, older than our
school system. Marriage [about which the Connecticut law said nothing] is a
coming together for better or for worse, hopefully enduring, and intimate to
the degree of being sacred [said the oft-married Douglas]. It is an association
that promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Despite this pretentious
mumbo-jumbo, or perhaps because of it, neither Douglas nor any of his six
colleagues had an answer to a simple question asked in Justice Stewart’s
dissent (in which Justice Black joined): “What provision of the Constitution
... make[s] this state law invalid? The Court says it is the
right of privacy ‘created by several fundamental constitutional guarantees.’
With all deference, I can find no such general right of privacy in the Bill of
Rights, in any other part of the Constitution, or in any case ever before
decided by this Court.”
Despite the clarity of Stewart’s persuasive dissent — and because the Warren
Court majority wanted to rid Connecticut of what Stewart rightly characterized as an “uncommonly silly law”—the Griswold
majority simply invented an ersatz
“right to privacy.” In a barely three-page
opinion, this anti-federalism judicial construct would later be used
in Roe v. Wade as a constitutional
rationale for invalidating the anti-abortion laws of virtually every state.
Thus, the notion of a “Living
Constitution,” the opposite of originalism, is not only an anti-democratic and
intellectually dishonest way to interpret our Constitution and federal
statutes. It is also demonstrably capable of manufacturing dangerous ersatz
“rights” that impose tremendous moral, social, economic, and political costs on
this nation and its citizens.
It is Griswold’s
interpretive methodology — imposed on the basic Constitution, on the Bill of
Rights, on the Fourteenth Amendment, and on federal statutes — and the
invention and institutionalization of ersatz “rights,” that has made possible
the decades-long metastasis of the “Living Constitution’s” malignant doctrines
into most areas of American constitutional and statutory law.
* * *
To paraphrase the penultimate
paragraph of my Introduction to The
Supreme Court Opinions of Clarence Thomas, 1991-2011 [Second Edition],
[I]n the name of our
Founding Fathers, like Justice Clarence Thomas Antonin Scalia spent decades consistently
and bravely fighting with mind and pen against this anti-constitutional disease.
The next President of the United
States cannot allow Justice Scalia’s battle to have been for naught.
