Tuesday, January 4, 2011

Why Originalism on the Supreme Court is a Bad Idea

Most people are aware that we have this thing called the Supreme Court and that it's made up of Supreme Court Justices.  Now how many Justices or who these cats are is asking a bit too much for your average American, so it should also come at no surprise that most folks are unfamiliar with the different types of Judicial Philosphies that are used to decide our Constitutional Rights every single day on the Court.  There are those who believe the "Purpose" of the law should be followed when in doubt; this group is opposed by the "Strict Constructionists" who believe that the letter of the law - typos included - should be followed strictly at all times, purpose be damned.  Then another group (usually liberal) believe that the Constitution is a "living document" meaning that it changes with the times; this group is opposed by the "Originalists" (usually conservative) who believe that the Constitution should be interpreted as it was written by the Founding Fathers in 1789, and that each amendment should be interpreted in accordance with the respective year in which it was drafted.  One such Justice who follows this "Originalism" philosophy to the letter is Justice Antonin Scalia, the longest serving Justice currently on the Supreme Court (24 years) and also the Court's most notorious conservative.

Recently, California Lawyer ran a piece on Scalia which captures why Originalism is probably not the best way to go about interpreting the law:


Interviewer: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Scalia:  Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

In other words, if a woman is discriminated against on the job, according to Originalism, she has NO CONSTITUTIONAL RIGHT to file a suit against her employer.  If California, for example, passed a law that said "Men shall be paid X dollars/year in salary, and Women shall be paid half of X" again, under Originalism, women would have ZERO recourse under the Constitution to have that law thrown off the books.  And this makes sense, of course, because in 1868 when the Equal Protection Clause of the 14th Amendment was drafted, women didn't have rights.  And because women didn't have rights under the Constitution in 1868 when the Equal Protection Clause was adopted, then it follows logically that they should continue not to have Constitutional rights under the Equal Protection Clause in 2010.  Nevermind all of the Supreme Court decisions and Constitutional Amendments to the contrary that we've added since then. Who wants to be bothered by keeping up with all of that?  It's obviously much simpler to just point back to 1868 and say "Sorry ladies.  No rights for your.  Not our fault.  Take it up with your Congressman at the ballot box."

And this is just the tip of the iceberg with Originalism.  We haven't even talked about a woman's right to abortion, or how few rights Blacks had (3/5 of a person in Article I of the Constitution), or any other minority group that's had to struggle to get what they have today.  So you may ask yourself, if Originalism sucks this bad, then why do Judges like Scalia still follow it?  Ah!  Great question.

As I've come to observe, the Pro's to Originalism generally flow from the fundamental idea that the Constitution was made to be amended, therefore if the People want to change something then they should go about it "the right way" and vote for Congressmen and Senators to change it as opposed to having "Activist Judges" change it as they see fit.  In other words, the Constitution is not a living document. It says X, Y and Z and X, Y and Z should be strictly followed at all times until Congress votes to change X, Y or Z into something else.  Anything short of that is unlawful "activism."  OK, fair enough. That's a legitimate argument to be sure.  After all, if judges can change the law any time they feel like it then there's no point in writing laws in the first place, right?

However, as I've also come to observe, that sounds great on paper, but in reality - as we can all attest to - Congress is not able to change so much as a comma in the middle of a sentence without having 18 filibusters and 3 years of debate in committees, sub-committees, and sub-sub-committees.  Originalism ignores this fact and assumes that something as fundamental as Equal Protection for Women's rights is a problem that could (or should) actually be solved at the ballot box.

The other major problem with Originalism is that it comletely ignores the entire point of having a Supreme Court in the first place.  Every first year law student knows the infamous case Marbury v. Madison.  In short, this landmark case basically says that the Constitution specifically gives the Supreme Court the power to interpret the Constitution.  That is its #1 job.   So it doesn't really take too many mental gymnastics to arrive at the conclusion that EVEN IF women were not included in the Equal Protection Clause of the 14th Amendment in 1868, the Supreme Court specifically has the power to say that Women are included in that amendment today. 




But Originalism does bring up a good debate because it is basically asking us, who do we trust to safeguard our Constitutional Rights:  

A. 9 old-school legal academics in black robes who may be out of touch with the common man? 

or


B. 535 career politicians in Congress who allegedly represent the will of the People by way of the "ballot box"?
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