Originalism Above All Else - (Thomas, Scalia the models for new justices!)

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 affect 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.

I would have only one small disagreement, but it's more one of interpretation. I also don't approve of judicial activism, whether it comes from the Right or from the Left. I think where the confusion comes, though, is that, when an originalist decides to overturn a precedential decision because it had not been decided according to original intent, it is called activism by the left. I do not consider that to be activist. Simply because something is a precedent or traditional doesn't make it correct or sacrosanct. The only thing that does so is if it. If, however, a SCOTUS decision came down, say banning abortion in every state, I would disagree with that and would consider it judicial activism. Don't get me wrong. I believe abortion is wrong and should be illegal, but since the Constitution doesn't deal with the subject, it is a state issue. I believe that it must be decided by the individual states on a legislative basis. Making abortion illegal is a conservative position and one that I agree with. However, to do it by a SCOTUS decision would be as much an exercise in raw judicial power as Roe was. Once Roe is overturned, the work of the prolife movement is just beginning. It will be up to us to persuade our fellow citizens to pass laws in the states banning the procedure (or possibly a Constitutional amendment which requires the same type of persuasion).

"Shouldn't plain language be the criteria? Only a mind reader who can communicate with the dead can know original intent."

Not quite. The Founders wrote lots of material about why they wrote the Constitution as they did. The fact that it's difficult does not mean we might as well not try. Remember, liberals' notion of "plain language" is, well, whatever they wish the language said. That's just how they think. But with history, we can more readily refute liberals' interpretations.

Take, for example, the second amendment. Liberals take the phrase "well regulated" as a plain indication that the federal government can restrict our use of guns. They don't quite ignore the "shall not be infringed" part; they just say it means that guns can't be banned altogether, but they can be thoroughly regulated.

Without knowing history, I'm not sure their argument would necessarily be wrong. But in fact, the language of the second amendment came right out of state constitutions, and at the time, all of those states interpreted the clause as meaning the federal government can't touch our guns, because the states need to have effective militias.

Today, "well regulated" means something very different than it did 200 years ago. That's why history matters.

Another point to consider is that the meaning of words change over time. For example, it matters greatly that the definitions of the terms for militia and regulated have taken on different contexts today than they had in the 18th century at the time of the ratification of the Constitution. When we think of a militia, we tend to think of a group like the National Guard. The National Guard IS a militia.....but it is not THE militia. The militia in the 18th century was any able bodied male capable of carrying and using a firearm. A "select" militia was one that receives pay, training, and tasks above and beyond what is expected of the general population. When we think of "regulated" today, we think of controlling by means of laws - ergo gun control. However, the Oxford English Dictionary, 2nd Edition, (1989) defines regulated in 1690 to have meant "properly disciplined" when describing soldiers:

[obsolete sense]
b. Of troops: Properly disciplined. Obs. rare-1.

1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.

An originalist would therefore strive to determine what was intended by the document, using the plain language of the document, as well as other writings and even other actions of the government at the time to discern what the reasonable and original interpretation of the law was and then to apply it to the present day situation. For an example, read Justics Scalia's dissent in the Kentucky 10 Commandments case. He exhaustively goes into the history of the interaction of government and religion at the time that the Bill of Rights was passed to discern whether or not the Founders and the people who ratified the Constitution really intended to "erect a wall of separation between Church and State" which they clearly did NOT intend to do.

"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."

Very good!!!

Which brings me, once again, to bring up Abraham Lincoln's First Inaugural statement:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

"Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes." - Abraham Lincoln

(Underlining added for emphasis)

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