The hearings for the latest Supreme Court nominee will define the debate over the interpretation of the Constitution. On one side you have originalists; those who believe the Constitution should be interpreted by the written word and intent of its authors. On the other side you have those who believe in a living constitution; the idea the Constitution should be interpreted via the lens of current society. We can view both arguments in this way:
Let’s say a 14th century author wrote, “the nice gay boy tripped through the small town with a faggot.”
An originalist would claim the interpretation is, a foolish and merry individual skipped through a small town carrying a bundle of sticks. A proponent of a living constitution would say the statement could accurately be interpreted as, a kind homosexual stumbled through the small town with another homosexual. One claim would capture the intent of the author while the other would distort the story to a point incomprehensible to the writer. Is it fair to claim a story’s meaning changes based on the changing definition of words over time, or is the author’s intent more important?
It would be silly to apply the idea of “living literature” to the author’s story. The same can be said for the law. The law was written to capture the intent of the people at a given time. While the times change, the law’s meaning and purpose do not.
Suppose in the future a political party has decided it is in the best interest of the country to force people to house government employees at no cost while they are on an assignment. For instance, you must house the IRS agent who is auditing you. The passage of such a law is not implausible in the sense the party in favor only needs to hold both houses of congress and the presidency – a level of control which has occurred for the last four presidents. The upholding of such a law, however, would prove the greater obstacle.
An originalist judge would look at such a law as a direct violation of the Third Amendment which states: “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” The intent of the law was to protect the civilian from the imposition of government employees in their homes. In 1791 this meant soldiers. Though the current scope and size of the government is beyond anything the founders could have imagined, a law forcing civilians to accept government personnel in their homes would still violate this right.
Today, you would be hard pressed to find a justice who would find otherwise, however someone who follows the ideology of a living constitution follows societal norms. 100 years ago, abortion would not have been a societal norm and yet in 1973, the Supreme Court found the right to an abortion in the Constitution and it is now virtuous to shout your abortion.
Thus saying, suppose in the future it became an acceptable idea for the government to force civilians to house government employees. If the party in favor of such action came to power, they could appoint justices who agreed rather than adjudicated based on the law. They may say that because the Constitution was written in 1787 it is no longer acceptable doctrine. Or maybe they will claim because the Third Amendment says soldiers it does not apply to an IRS agent. The reason is not as significant as the fact you could have government agents forcibly occupy your home. If justices are nominated simply to do the will of congress or the president, then why not abolish all branches in favor of a group of nine dictators?
Hopefully this example is universally abhorrent, but suppose a more contentious issue arose. Neither party would be in favor of judicial appointments to bend or create laws which are against the will of the people. The country is founded in such a way that citizens elect two of three branches (legislative and executive) who then combine to appoint the third – the judicial. The judicial branch then upholds the law which requires the greatest majority to pass: The Constitution.
The supreme law of the land is the Constitution. It is the job of the Supreme Court to ensure laws written by the legislative and signed by the executive branch abide by the rights guaranteed to the citizens. The Constitution can be amended in two ways. The only way utilized thus far requires the support of two-thirds of both houses of congress to propose and three-fourths of the state legislatures to ratify amendments. The other way, a convention of states, requires two-thirds of the states to call for the convention and three-fourths to ratify
any proposed amendments, skipping a congressional vote. Both methods require an
absolute majority of federal and/or state legislative bodies as elected by the citizenry.
The Supreme Court, by way of adjudicating the law as voted on by the people is what protects us from the tyranny of the legislative and executive branches. The utility of co-equal branches of government is lost, however, if one branch usurps power from another. The fear of progressives, in terms of the court, is more originalist judges would hold us strictly to the laws we passed while conservatives fear living constitutionalists would adjudicate by public opinion rather than the rule of law. The distinction of the utmost importance is, one group wishes to have laws written without fear of adjudication while the other wants the laws to be adjudicated as written.
The argument against originalism is truly mystifying to me. Originalists adjudicate based on what the majority of state and federal legislatures have agreed upon and written into law in their time. In other words, originalists do as they are instructed by the electorate. If the electorate wishes for a different outcome, they can put forth an amendment via the legislative branch or convention of states. This ensures a majority of citizens have a say on their rights. It is progressives who wish to remove this ability from the people by way of appointing justices who will interpret the law as it “should” be and not how it is.
Clarence Thomas, a stalwart originalist has often made decisions which go against his own personal interest. For instance, his discussion about the overreach of the federal government by way of the commerce clause would rule anti-discrimination laws and the ban on whites-only lunch counters unconstitutional. As a Black man, one would think Thomas should be in favor of such decisions. Maybe he is, but he insists that rulings, at least his own, be based on the intent lest any law be manipulated as justification to regulate beyond its designation.
It is worth noting that because a law is not constitutional at the federal level does not mean it is illegal at the state level. So, if Thomas were to rule something unconstitutional at the federal level, the states would not necessarily be barred from applying the same legislation.
Because we are a nation that values the rule of law, we have (usually) abided by decisions of the courts with the state or federal government enforcing their rulings. This, however, is done with the understanding that the Supreme Court serves the people through the law, which is why it is an appointed rather than an elected position – the job of the jurors is to be right, not necessarily popular. Furthermore, it is important that the branch that makes the decision is not the one who enforces it. If justices are nothing but legislative or presidential puppets or worse, authors of legislation, then government can simply be vacated and a tribunal of despots put in its place.
The founders understood the nature of centralized power and its inherent tendency to be abused. Therefore, they created a system of checks and balances wherein each branch had specific and enumerated powers. While it may be satisfying to see your party win at the expense of co-equal governance, you cannot then protest when the other side follows suit.
If you want to ensure what you stand for today remains tomorrow, your initial intent must remain intact. Before you castigate a justice for holding this opinion ask yourself why is it wrong to base your justification on those that were given by the author instead of another’s interpretation 100 years later? It is not the job of the judicial branch to manipulate legislation to satisfy society, but that of legislators to make new laws befitting the society they represent. The job of the Supreme Court is to hold us accountable for those we elect and the laws they pass. If you are unhappy with a law, elect politicians who will change it instead of interpreting it as convenient lest convenience replace justice.