Wednesday, September 17, 2008

Originalism and the Constitution

Supreme Court justice Antonin Scalia has been called evil, a neanderthal, and a fascist, all because he believes in an originalist interpretetion of the Constitution. The Constitution was written by people who wanted to communicate ideas. On originalist just wants understand and apply the ideas that these people were trying to communicate.

Those who oppose originalism believe the Constitution is a living document that should be interpreted in light of ever changing societal values. They think that if we go back to an originalist view, abortion and affirmative action will be threatened. These people are very, very near sighted.

Our Bill of Rights was designed to protect us from government by providing a core of rights that could not be taken away. But if our Constitution is interpreted in light whatever happens to be the current societal values of the time, any rights could be creatively re-interpreted and taken away.

For example, our Constitution guarantees Freedom of Religion. It is pretty clear that the Founding Fathers did not intend that to mean that we had to check our religious beliefs at the doors of our churches or synagogues when we go out.

But justices who believe the Constitution is a living document could very well re-interpret Freedom of Religion to mean precisely that, i.e. that Freedom of Religion guarantees the right to worship in your homes or houses of worship, but that there is no Constitutional guarantee apart from that. In one fell swoop, our Constitional guarantee to Freedom of Religion could be overturned by some unelected Supreme Court justices based solely on their own sense of societal values (i.e. the social values of their particular social circle).

Of course Freedom of Religion is just one example. If the Constitution is treated as a living document no freedom is safe and we might just as well tear it up.

Barack Obama is strongly opposed to originalism.

If you have time and a high speed internet connection, here is an excellent interview with Justice Scalia. (Hat tip: alcamadus)

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Alcamadus said...

I said it on my blog and I'll say it here, the greatest threat to this interpretation style is that it supercedes our checks and balances system by allowing the Judges to have too much power and by making decisions that should be made in Congress, not the Supreme Court.

By their reinterpretation of the Constitution, they have allowed certain things and basically made hidden amendments that aren't there and are only held through their own interpretation style, which has no real foundation or basis (besides today's society and culture).

Scalia makes the great point that the Constitution is not supposed to be changed easily, and any kind of amendment and change needs to be made through Congress, not the Judges.

Ironicly, and sadly, what the judges are doing is unconstitutional.

pensivepuppy said...

Scalia and originalists are naive. They think they can somehow set aside their personal preferences and only interpret the literal words of the constitution "objectively". But they ignore that their "objective" reading is actually based on their biases and beliefs. Why is it that Scalia discovers so many originalist readings of the constitution that just "happen" to line up with his own personal beliefs? It's because he has deceived himself into thinking he is somehow unbiased.

I think we need fewer justices like Scalia and Thomas. We need more wise men on the court, not these self-deluded fools.

Dennis said...


No, they really are not naive at all. Originalists are fully aware that we all have biases and personal preferences. But biases and personal preferences can often be recognized and set aside so some degree.

For example, when Scalia had to rule on flag burning, he admits that his personal preference would have been to make flag buring illegal and throw the flag burning bums in jail! But he recognized that the Constitutional guarantee of free speech protected even odious behavior like flag burning!

What NON-originalists do, however, is use the bias and personal preference argument as an excuse to throw out ALL objectivity!

What they don't seem to realize is that this is a two edged sword that cuts both ways depending on how many people your side has on the Supreme Court at any given time. You may like NON-originalist justices when your side has the majority. I guarantee that you would not like NON-originalist justices if your side was not in the majority.

For example, how would you like to have a Supreme Court filled with right-wing NON-originialists who decided that "freedom of religion" meant that everyone MUST be the adherant of some religion or face crimiinal penalties? After all, it is freedom OF relgion, not freedom to not have a religion.

Of course that is absurd, but no more absurd than "finding" a Constitutional right to abortion in the Constitution; or interpreting freedom of religion as meaning freedom to worship in your own home or house of worship, but not freedom to bring your religious views into the public square.

Fortunately, for the Left, most right-wingers are originalists.