Originalism above all else

By Steven Geoffrey Gieseler
web posted July 18, 2005

Like killer bees they will swarm in droves. No nominee will be safe. Ultra-Conservative. Stealth Liberal. Anti-(insert special interest here) Ideologue. Extreme Judicial Activist. The labels ascribed to whoever President Bush nominates to the United States Supreme Court will be legion. And they will be entirely useless in assessing whether that man or woman is fit for the Court. 

This is no postmodernist-gibberish screed on how words don't mean anything. Indeed, the usual carping about labels in the law and in politics is considerably overwrought. Justice Rehnquist is generally conservative, and Justice Stevens is generally liberal. Labels often fit. But such generalizations are detriments to the impending debate because they obscure what really matters. Fidelity to the original intent of the Constitution must be the sole ideological criterion used to evaluate any nominee. Everything else is noise

Originalism alone produces a body of law evincing the will of America's citizenry. America has assented to the Constitution as the nation's supreme law, altered only by its own process of amendment. Every day that it remains unchanged, it is ratified again as our governing document. Any deviation from the Constitution that occurs outside of its own terms not only lacks the consent of the governed, but violates it. This includes deviation by judicial fiat.

Liberals abhor originalism because it forecloses their primary strategy for political change. They want constitutional questions to be decided based on their own views, not those of Madison and Hamilton. Their recent call for "another O'Connor" evidences this. During Sandra Day O'Connor's time on the bench, American liberalism realized not one of its major policy goals in Congress. Failing to convince 100 million voters, liberals adopted a new strategy: they'd try to convince nine. Unencumbered by an originalist approach, Justice O'Connor was particularly susceptible to convincing.

 A constitutional originalist nominee like Clarence Thomas affords no such opportunity. An originalist judge's opinions are moored to the intent of the drafters of the Constitution and its amendments, not the faddish slogans of the day. His or her own predilections are subjugated to our nation's founding papers. This results in a coherent and consistent interpretation of laws. More importantly, originalism results in a canon blessed with America's consent via its adopted Constitution.

The Left's current talking points are misleading (recall no such praise for O'Connor circa December 2000). The Right's are ill-advised. For years conservatives have bemoaned "judicial activism" as a singular evil afflicting today's courts. This critique both misdiagnoses the problem and contradicts the best interests of the critics.

For seventy years, proponents of a "living constitution" have found rights where there are none. At the same time they have abrogated rights clearly guaranteed by the Constitution. Last month's decision in Kelo v. New London is only the most recent example. By advocating a Constitution that can mean anything, these judges have left us with one that means nothing. A return to the vision of the Founders will require the undoing of a number of bad decisions. The decisions won't undo themselves. If "activism" means returning the Court's jurisprudence to its constitutional foundations, then activism is needed.

It is not surprising that liberals worship at the altar of Supreme Court precedent. Having had their run of the Court since FDR, they would like nothing more than to close the door behind them. The Democratic response to the Kelo decision illustrates the depth of this devotion. The opinion, which validated the local government practice of seizing homes and transferring them to private corporations, will have a disproportionately negative impact on poor and minority citizens. 

Bowing before the Court, most House Democrats ignored their core constituencies and voted against a legislative response to the decision. Rationales bordered on the bizarre, including rhetoric deeming Supreme Court opinions to be "almost as if God has spoken." Never mind that if the Court's decisions were eternally inviolate, segregation would be the law in America today

What is remarkable about the liberal paean to precedent is that many conservatives agree with it. By preaching faithfulness to "restraint" rather than to the original meaning of the Constitution, conservatives prevent the very changes most able to effect their goals. The correct approach (constitutionally and practically) is one seeking an "activist" return to the Constitution, "restrained" only by the Constitution itself. But it's a line of reasoning the robotic opponents of all "judicial activism" fail to appreciate.

Decrying all "judicial activism" ignores that it comes in good and bad varieties. When a judge deviates from precedent or strikes down an existing law in favor of his own policy preferences, such activism is an affront to the Constitution. But when a judge makes such a decision because the Constitution's principles require it, this "activism" is more than proper. It is necessary.

Give us an Ultra-Conservative Ideologue Originalist. Or give us an Extreme Judicial Activist Originalist. Just give us an originalist. In a debate that's about to get noisy, it's the only label that matters.

Steven Geoffrey Gieseler is an attorney with Pacific Legal Foundation's Atlantic Center. PLF is the nation's leading defender of the Constitution, and opposes judicial action that substitutes a judge's personal policy preferences for the freedoms guaranteed by the Constitution.