Why every justice should be an originalist
President Trump’s nomination of Amy Coney Barrett to the Supreme Court fulfills his pledge to select someone who is an originalist and a textualist. Originalists interpret the Constitution and other laws in accordance with the meaning they had when they were adopted, and textualists similarly interpret statutes in accordance with the meaning of the statutory text, and not the policies or unspoken purposes behind the laws.
Those philosophies stand in stark contrast to the idea of the “living Constitution,” according to which the meaning of the Constitution changes over time, even if the Constitution itself has not been amended. The idea of a Constitution whose meaning keeps up with the times is superficially attractive; after all, who wants a “dead” Constitution?
Further, the living Constitution offers the possibility that the Constitution would be interpreted to mean exactly what we want it to mean. If we want a right to education or health care or welfare, perhaps the Constitution’s meaning can “evolve” to include such a right — even though there is no language in the document that reasonably could be thought to include it, and even though no one thought the Constitution had such a meaning at the time the Constitution was adopted. And if we no longer like the right to a jury trial or the separation of powers, perhaps the Constitution can “evolve” to free us from the constraints that the original Constitution imposed on us.
But if we accept the idea that the Constitution contains an evolving meaning, we must ask ourselves who has the power to decide what this evolving meaning should be. The living constitutionalists answer that judges should give the Constitution its evolving content, but judges are the ones in our government least connected with the people and therefore least able to discern the needs of modern society.
Judges’ institutional advantage is quite the opposite — discovering and applying the law without regard to politics and public opinion. Federal judges do not stand for election, and that independence enables them to decide cases based on what the law requires, even if that is unpopular. The ideal judge is one who puts his own views and public opinion aside and decides cases according to the law.
If judges decide the meaning of the law based not on neutral principles but on what they think the law should mean, then their independence from the electorate undermines the fundamental principle of democratic government — that the people should govern themselves.
In Marbury v. Madison, the case establishing the Supreme Court’s power to declare acts of Congress unconstitutional, Chief Justice John Marshall explained that judicial review was necessary to enforce the written Constitution. Our Constitution established a government of limited powers, and so that “those limits may not be mistaken, or forgotten, the constitution is written.”
In other words, the United States adopted a written Constitution (in contrast to England’s unwritten one) precisely so that the structure and limitations it placed on government would be fixed. A living Constitution undermines that protection by permitting the Constitution’s meaning to fluctuate depending on what policies appeal to a majority of the Supreme Court at any particular time. The idea of a living Constitution is thus profoundly dangerous. It strips the written Constitution of its raison d’être, depriving us of the guarantee that the Constitution’s careful balance between government power, individual rights and democracy will endure.
The living Constitution may give us results we like, but the whole point of the Constitution — and of judicial review — is to force the government to respect limits on its power even when those limits are unpopular.
For that reason, we should not assess justices or potential justices based on whether they would vote in a way that gives us results that we favor. That is not their job. Their job is not to create rights that we like and eliminate rights that we don’t. Their job is only to interpret the existing law — leaving it up to the people and their representatives to change the law if necessary.
We have become accustomed to thinking about the Supreme Court in policy-oriented terms because the court itself has behaved as if its job were to make policy. The late Justice Antonin Scalia warned that if constitutional law were nothing more than judges’ “policy judgment[s] couched as law,” then “confirmation hearings for new justices should deteriorate into question-and-answer sessions in which senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them.”
Unfortunately, today’s judicial-confirmation process much resembles the confirmation hearings that Justice Scalia feared. Nominees are supported or opposed because of their expected votes concerning high-profile subjects, as if we were choosing leaders to implement a policy platform.
But whether we favor liberal or conservative policies, we should not want a judge or Supreme Court justice who comes to the bench with a liberal or conservative agenda. We should want a judge or justice who comes to the bench with a commitment to give effect to the law as originally understood, whether that leads to conservative or liberal outcomes.
Michael R. Dimino is a professor of law at Widener University Commonwealth Law School, where he teaches constitutional law and election law. Follow him on Twitter @mrdimino.