The Supreme Court: Originalism, Activism, and America’s Future

There are two broad schools of Constitutional interpretation today – originalism and the "living constitution" theory. The latter is pure judicial activism dressed in a bare patina of Constitutional justification. In the last week, we have been treated to the best – an originalist Second Amendment decision - and worst – an activist habeas corpus decision - of the Supreme Court by Judges applying those two schools of thought.

Originalists attempt to interpret the Constitution by determining what the people who drafted it and voted for it understood it to mean at the time. An intellectually honest originalist does not announce new policy, he or she interprets history and precedent. That is a bit oversimplified - originalism is certainly not always that clean and can become muddled as precedent builds (and see the discussion here). But because there is always a strong bias to stay limited to what the Constitution says and what the drafters meant, it provides a carefully circumscribed role for unelected judges, thus paying the maximum deference to democracy.

When a Court stops interpreting the meaning of the Constitution and starts to impose its own policy views under the color of a "living constitution," it transforms into a Politburo legislating by fiat. Judicial activists and the left who champions them are the people who see an activist Court as a way around democracy and an irreplacable tool to remake society.

The Goracle did a good job of describing the "living Constitution" theory in his 2000 election campaign, as well as demonstating the left's total embrace of judicial activism:

I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.

That is scary. That is pure judicial activism of the type which:

- came within one vote yesterday of allowing the government the power to disarm all Americans - and will no doubt, if given the chance to gain a majority, so narrow the right as to render it meaningless

- now allows government to take your private property and give it to another private party for their own purpose, even though the plain language of the 5th Amendment clearly forbids it as unconstitutional.

- now holds that modern foreign law can be used to interpret the U.S. Constitution, thus allowing our modern activists to arrive at any policy decision they so desire and then to turn it into Constitutional law, irrespective of how far removed it may be from the original meaning of the Constitution.

- in a vast expansion of the power of the Court, and in what may turn out to be the most costly decision ever to our nation, the activist wing of the Supreme Court twisted precedent out of recognition to arrive at a decision that has inserted the Judicial Branch into the national security and defense roles of our President and Congress. The activist wing of the Supreme Court has taken for itself powers clearly authorized only to the other branches by the plain language of the Constitution. As law professor Kenneth Anderson, cogently opined, "the Court seems to be marking out a long-term trajectory of forcing a reconception of war, even combat, as a form of police work."

- have greatly limited the use of the death penalty, irrespective of the intent of the founders, in how the states can apply it and by what method. While some of these restrictions are valid as a means of insuring due process, others are examples of pure policy decisions / Constitutional legislation by the Court.

- have created numerous rights out of whole cloth, taking social policy, such as whether to allow abortions and under what circumstance, out of the hands of the people and the states and making Constitutional law of their personal policy preferences. (Note here that originalists hold questions such as abortion to be outside the text of the Constitution and thus wholly states rights issues, beyond the scope of the Supreme Court's jurisdiction and beyond the competence of the federal government to regulate.)

- have read into the anti-establishment clause a "wall between church and state" and used that theory to dismember any hint of religion in the pubic square, thus promoting, whether intentionally or in the breech, the religion of the left - radical secularism.

There is no greater internal threat to our nation than an activist Supreme Court acting without respect for democracy and unconstrained by the original intent of the founders. Two very recent examples show the different methods used by originalists and activists respectively and serve as textbook examples of these philosophies in action.

The recent decision of Kennedy vLouisiana, written by Justice Kennedy and decided in a 5-4 decision, is an example of the judicial activism that has run rampant over the past sixty years in respect to the death penalty. The case interpreted whether a death sentence imposed for an incredibly brutal rape of a young child was Constitutional under the Eighth Amendment. That Amendment holds: "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nearly the first words in Justice Kennedy’s opinion were to quote a 1958 Supreme Court case that was a part of the great move towards judicial activism [citations removed for ease of reading]:

. . . [T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.” Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The [8th] Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."

Suffice it to say, it was almost two centuries after the founding of the country that an activist wing of the Supreme Court decided to unglue the 8th Amendment from its original meaning and move it into the realm of judge-made policy cast as Constitutional law. Who determines what the "standards of decency" should be and what "norms" currently prevail? Shouldn't it be the people of Louisiana, acting throught their democratically elected legislature, who decide what is appropriate - at least so long as they do not violate the original meaning of the 8th Amendment? Or should it be the role of the unlected and unaccountable left wing of the Supreme Court to magically devine these "norms" and "evolving standards" for Louisiana based on whatever select data they choose to justify their decision? That data certainly isin't the national polls on the topic of imposing the death penalty for child rape. As the Jim Lindrgen wrote at the Volokh Conspiracy, after examining polls taken on the topic:

If the American public has a “national consensus” about child rape, it is that the death penalty is appropriate and that the courts are too lenient in punishing first-time offenders. But that’s not the sort of national consensus that Justice Anthony Kennedy wants to follow.

And indeed, the Supreme Court in Kennedy found an alternate consensus which, as explained by Justice Alito in his dissent, hardly qualified for the proposition which the activists used it. Regardless, the activists struck down Louisian's law as violative of their current policy preferences - or as those preferences are now known, Constitutional law.

To those who would argue that we should not be stuck in Revolutionary era concrete, please note that our Founders allowed for that by providing methods for amending the Constitution. The methods listed in the Constitution are democratic. We certainly can amend the 8th Amendment to limit the scope of what is "cruel and unusual" to a democratically accepted norm in the 21st century. But having 5 of 9 unelected judges impose those changes based on their whim and under the label of the "living Constituion" is not one of the methods you will find enumerated in the Constitution.

Compare this to Justice Scalia’s opinion in Heller v. District of Columbia, a primer in Constitutional interpretation by an originalist. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Scalia begins with an examination of how the language of the Second Amendment would have been defined and understood at the time the Amendment was drafted.

Scalia notes that the term "the people" is used throughout the Bill of Rights to provide rights to individuals. To interpret "keep and bear arms," he uses dictionaries from the Colonial period and refers to that era's seminal treatise on British law, William Blackstone’s 1769 Commentaries on the Laws of England. Scalia then looked to the history of the Second Amendment, finding it did not create a new right out of whole cloth, but rather protected a preexisting right inherited from well established British law of the period. That law, blogged here, provided an individual right to bear arms for self defense and a defense against the tyrannical acts of government. Using a similar inquiry for the prefatory clause, he finds that the term "militia" meant, in 1789, all able-bodied men and that the term "free State" was a term of art in the period that could refer to a State or to individuals in a state.

Scalia also looked to the various treatises and case law in the years following ratification to see how the Amendment was interpreted, including what limits were recognized upon the right. And he finishes with this thought:

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

There really is a war going on in America. It is a war between those who wish to preserve the society created by our founders, one based on capitalism, federalism, certain individual rights and a respect for religion versus those on the left, espousing views of socialism and secularlism who want to radically remake society to accord with their own views. There is nothing wrong with that so long as the fight takes place at the ballot box. The problem is that a centerpiece of the left's efforts is to use activist courts to circumvent democracy.

The next President will choose at least one and as many as four Supreme Court justices. He will remake the Court for the next several decades. And if that Court is activist, God help America, for America will come to the end of those decades bearing little resemblance to the nation we created in 1776, nor for that matter the world's most successful nation that existed at our bi-centennial.

Update: An extremely important point is made by David Bernstein writing at the Volokh Conspiracy, that I neglected to include above. Any suggestion that the practitioners of judicial activism are the protectors of our civil rights as against government encroachment is a pure fairy tale. Judicial activists regulalry expand the power of government as against the individual, unless of course it is some new right that fits within the modern socialist pantheon. As Mr. Bernstein writes:

The Supreme Court's decision in District of Columbia v. Heller, upholding the Second Amendment right of individuals to own firearms, should finally lay to rest the widespread myth that the defining difference between liberal and conservative justices is that the former support "individual rights" and "civil liberties," while the latter routinely defer to government assertions of authority. The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides. Or perhaps it's not as remarkable as we've been led to think.

And related to that is this observation from Hot Air that I must admit I missed in reading the Heller opinon - I plead brain death by the time I got towards the end of Steven's dissent. At any rate, it is Stevens, just unbelievably trying to cast the Bill of Rights as an enabler of government control rather than a brake on it:

The quote of the day comes not from Scalia but from Stevens in dissent:

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

Yeah, that’s … the whole scheme of the Constitution, isn’t it? To limit the power of government? Or does that principle only apply to Article II anymore?

That really is a Freudian slip of epic proportions by an activist Supreme Court justice more concerned with his policies and government control than the individual rights of Americans. Any elementary school child can likely tell you that the Bill of Rights enumerates individual rights safe against government transgression. Enumerated powers of government appear elsewhere in the Constitution - unless, as Stevens makes clear, an activist judge has a policy preference in conflict. These people really are a clear and present danger to democracy and our nation.