Originalism is a theory of Constitutional interpretation that focuses upon the text of the Constitution in seeking it's original meaning at the time it was promulgated. Thus, an originalist jurist would seek to obtain the Constitution's original meaning through historical analysis and then apply that meaning to contempory issues that come before the Court. Originalists argue that if the Constitution does not speak on the contemporary issue, then the Court has no business in rendering a decision that usurps the legislative branch.
In contrast to originalism is the "Living Constitution" view of interpretation. According to this view, the Constitution is a living and ever evolving document that needs to be flexible to the changing values and needs of an ever evolving society. It's meaning is not fixed. It is dynamic. Al Gore, during the 2000 Presidential campaign, endorsed this view.
Probably the most well-known contemporary advocate of originalism is Supreme Court Justice Antonin Scalia. He offers several arguments against the "Living Constitution" view:
1. The purpose of a Constitution is to bind us, not to be flexible. The Constitution offers its own way of being flexible and that is through the amendment process.
2. The "Living Constitution" has no guiding priciple upon which to guide its evolution.
3. The "Living Constitution" allows for judicial activism; effectively, legislating from the bench.
4. The "Living Constitution" poisons the apointment and confirmation of judges. If there is no fixed meaning in the Constitution, then the best thing partisan politicians can do is to get judges on the courts that agree with their political beliefs. Competence and character are no longer the main issues in judicial confirmation hearings.
Except for the second argument, I find Scalia's arguments as a whole to be pretty persuasive. While a "Living Constitution" view can and does lend itself to capricious decisions this does not guarantee it. Some scholars such as Ronald Dworkin do hold to a variety of "Living Constitution" views, but do seek to have a guiding principle. In Dworkin's view, the guiding principle would be to seek greater fairness and justice.
Friday, November 16, 2007
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The second argument in Justice scalia's view is also persuasive. He does not contend that a "living Constitution" interpretation always leads to capricious decision, but that the tendency to do so is far greater.
Scalia's viewpoint is given further validity by the verifiable assertion that a) the three foundng documents of the United States had as their forative foundation a common, faith-based (not specific religion-based) moral code to which all of the founding fathers ascribed and b) the three founding documents were viewed as a unified, integral and inseparable whole rather than each document supplanting and superceding the previous documents.
Contrary to what those who ascribe to a "living Constitution" contend, the Constitution is a "living" document. The founding fathers provided the amendment process as an orderly means of achieving the Constitution's evolution while at the same time ensuring that we, the people, have the ultimate say in how, when, why and in what ways the Constitution evolves. It was intended that the citizenry always be in ultimate control of our government and our destiny through majority rule. Judicial activism and the "living Constitution" interpretation of the Constitution intentionally and effectively denies to us, the people, the authority which the Constitution expressly guarantees to us and, therefore, circumvents American democracy and undermines our freedom.
M.J. Ryan, Ph.D.
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