July 13, 2005

Are You an Originalist?

Due to the complete lack of focus on the deeper, underlying issues about constitutional law, certain groups across the political spectrum will be spending their time, energy, and money to develop the necessary political power to frame the debate and create a victory for their side in the upcoming Supreme court nomination battle.

As noted in a previous posting, that exercise of raw power completely misses the important issue missing in the public debate: What is the proper role for the Supreme Court? Therefore, this posting is part of a continuing series of postings that attempt to clarify the core issues that are ignored when the focus is solely on the show of raw political power.

Edward Whelan has offered some valuable perspective on the topic of Are You an Originalist?:

President Bush's promise to appoint originalist justices like Scalia and Thomas invites the question: What is this peculiar creature, the originalist?

The term "originalism" identifies the traditional, common-sense principle that the meaning of various provisions of the Constitution (and of other laws) is to be determined in accordance with the meaning they bore at the time they were promulgated. The status of originalism as the only legitimate method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is "committed to writing" so that its "limits may not be mistaken or forgotten." To disregard its limits is to "reduce[] to nothing what we have deemed the greatest improvement on political institutions a written constitution."

It is significant that the term "originalism" appears to be of relatively recent vintage. The reason for this is not that there is anything novel about originalism. Precisely the opposite. Until recent years, originalism had been so unchallenged as constitutional orthodoxy that there was no reason to develop a term that would distinguish it from any rival. As Justice Scalia has put it, "in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing." But the rise of the "living Constitution" the Orwellian euphemism that liberal activists have used to pretend that the Constitution has somehow "grown" to entrench forever their own policy preferences made necessary a label for what everyone had previously recognized as elementary.

An analogous semantic development might illustrate this point. According to the Oxford English Dictionary, the term "heterosexual" came into usage barely a century ago. This is obviously not because heterosexuals did not previously exist, but rather precisely because what we now call heterosexuality had been widely understood to be normative...

This issue has been discussed in previous postings entitled How Original Intent Does Not Equal Conservative Judicial Activism, "The Supreme Court Has Converted Itself From a Legal Institution to a Political One", and Rediscovering Proper Judicial Reasoning.