I wrote this post a while ago and shelved it. But with SCOTUS hearings going on, I’ll go ahead and put it up for future reference.
One of the most infuriating straw men being trashed by the Left Wing is “originalism” in Constitutional Law. Some conservatives, most libertarians and I think that the Supreme Court should rule, Congress should legislate and the President should execute in accordance with the written word of the Constitution.
If this sounds rigid and dogmatic, it’s because it is. While “living Constitution” arguments are always tempting, they open the door to a very dangerous arbitrary law. Unless something is written in stone — and/or respected as thought it were — the law becomes whatever those in power want it to be. The entire point of a Constitution is to put a hard constraint on the behavior of our government; to make us a nation of laws not a nation of men (or women).
Still, instead of disagreeing with this view, critics to respond with plain and simple BS: viz David Souter claiming that an “originalist” interpretation would let Jim Crowe stand. This is categorical garbage:
Here’s the problem with Souter’s claims: The Plessy decision is wrong under an originalist reading of the Constitution. Originalism includes the original public meaning of the 14th Amendment, which commands: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Among those privileges or immunities is the right to economic liberty. Remember that the origins of the 14th Amendment lie in the anti-slavery politics of the Radical Republicans who drafted it and spearheaded its ratification. Their philosophy centered on a radically libertarian form of self-ownership, one that included both the right to armed self-defense and the right to liberty of contract. That philosophy was enshrined in the Constitution when the 14th Amendment was ratified in 1868.
In Plessy, the Supreme Court upheld a Louisiana law that forbid railroad companies from selling first-class tickets to black customers. That law was a blatant violation of economic liberty under the 14th Amendment and should have been struck down as such. That the Supreme Court failed to do so isn’t an indictment of originalism, it’s an indictment of the justices who failed to take the Constitution at its word.
They key point that critics of originalism miss is that the amendments are part of the Constitution. The most ridiculous criticism I ever heard was from Whoopi Goldberg saying that originalist argument meant she would only get 3/5 of a vote (granted, she have been trying to be funny; it’s hard to tell). But the 3/5 compromise was stripped by the 13th and 14th amendments. No originalist worth his salt would even contemplate that argument.
If you don’t like the implications of the Constitution, you can amend it — as we have done 17 times. If you don’t like the American people having guns, pass an amendment restricting the second. If you think the government should provide healthcare, pass an amendment expanding federal authority. If you think it should ban private discrimination, pass an amendment. That’s part of originalism — that the Constitution can be amended as time goes on.
The benefit is that amending the Constitution makes the rules apparent to everyone. It does not allow courts or legislatures to arbitrarily change our liberties on a whim. (And remember: living Constitution arguments apply to both sides. We saw, with the last Administration, that “living Constitution” arguments can lead to things like ignoring habeas.)
Of course, amending the Constitution is hard. But it’s supposed to be hard. That way, only massive consensus can change the fundamental basis of our government. “Living Constitution” arguments, seen in this light, become the lazy man’s way of changing the Constitution. It’s a way of getting what supporters want without having to get 75% support.
But it’s also divisive. Making “living Constitution” rulings divides the country. It makes opponents feel cheated. It allows motivate groups to simply steamroll the opposition. An amendment, by contrast, because it requires such a huge supermajority, requires building consensus, making arguments and persuading critics.
The suffragettes spent decades working toward the 19th amendment. Yes, it might have come earlier if a court had taken a “living” argument. And it stinks that millions of women never got to vote. But by going the hard route, the suffragettes guaranteed that no one would ever question or dispute women’s right to vote. The same is true of the amendments banning slavery, banning then restoring alcohol use and expanding the franchise to blacks. All of them started out divisive, built a consensus, passed an amendment and became an inextricable part of the American legal structure. Bypassing the process might have brought those positive changes sooner — but likely at the expense of long-term political chaos.
That’s the way originalism — real originalism, not phony-baloney Bush originalism — works. It’s not as easy or as fast as the “living Constitution”. It doesn’t allow for small groups to work their will on the public. But it has worked for two centuries. Maybe we shouldn’t mess with it.