In battles for Supreme Court seats, conservatives like to use words like “originalist” as a dog whistle to their supporters that this nominee is right-leaning or conservative themselves. The same way they will refer to left-leaning judges as “judicial activists” in an attempt to discredit them. Originalism, in its modern use means that Supreme Court justices will interpret the constitution the ways the founders intended. There are valid arguments to be made about whether or not the constitution is a living document, a subject we will cover later on at The Legal Pad, but, much to conservatives chagrin, nobody is a true originalist anymore.
Yes, that does include the late Justice Scalia, a conservative stalwart, who was often credited as “The Great Originalist.” He was a man who carried that interpretation as its label with him in all parts of life. Justice Scalia was a well-respected, brilliant and controversial Supreme Court justice. Neither his legal understanding, nor his life’s work is being called into question here. Merely the title he was bestowed with as an originalist.
To imply that a justice will adhere to the will of the founders is all judicial matters is a scary expectation to place on someone. Especially given the fact that many of the founders could not in their wildest dreams imagine the world we live in today, nor how laws should be interpreted to match that world. A great example of this is the right to free speech. The Constitution clearly gives American citizens the right to free speech. However, the Supreme Court has, on multiple occasions, upheld the right of the state to limit free speech if it is aimed at producing or inciting lawless action and is likely to produce such action. This is in the public good. But it’s not defined that way in the constitution. It required a modern interpretation for modern times, which even “originalists” support. The same is true for the right to declare war. A right strictly granted to congress in the constitution, but the commander in chief has carried out Korea, Vietnam, Iraq and Afghanistan without congress ever declaring war. Where were the originalists and their uproar over that violation of “original intent.” Of course we know the answer: they were silent because it fit their political ideology.
The Point is not that conservative justices are always wrong, or that people who call themselves originalists are misguided, but that they do a disservice to themselves by using that title. In actuality, they are interpreting the constitution through their ideological lens, and then searching through Federalist Papers, or state ratifying conventions to back up their points. This always through me for a loop because, as historians know, the constitution wasn’t immediately popular. Not everyone agreed with the contents. So when they say they are interpreting it through the founders intent, which founder are they talking about? Hamilton and Madison with their deference to the strength of the federal government ? or Jefferson with his loyalty to states rights? All had widely different views on their own interpretation of the constitution.
Sometimes, the constitution is very specific with its rules. It specifically tells congress to post roads, issue patents and copyrights, and fix units of measure. These are not the big constitutional questions today. The constitutional questions we are tackling over free speech, and right to privacy, and powers of the executive, or the role of the judiciary; these are the areas of the constitution left intentionally broad and vague. The founders in all their wisdom knew they could not right laws in 1789 that would always be applicable in 2017. This is when interpretation according to modern context is necessary, and why justices on both sides of the isle do so.
Originalists have a conservative interpretation of the constitution. And that is okay. Their views are often rooted in lengthy careers in the legal field, and are worth careful consideration. Just don’t claim to be pushing the will of the founders on issues the founders never even imagined would be issues. At some point, we need to catch up to the times. But more on that later.
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