Kevin Drum had a couple of terrific items last week on the legal principle conservatives call “originalism.” It’s the idea that the only defensible way for federal judges to consider cases is to rule based on a narrow, literal reading of the Constitution as it was written, based exclusively on the meaning intended by the Founding Fathers. “Originalists” claim to find the very idea of a living Constitution, which adapts and adjusts over time as society and technology changes, anathema.
As it turns out, there’s been a flurry of interest in the concept the last several days. In addition to Kevin, Slate’s Dahlia Lithwick wrote that “the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended,” and it’s up to the left to start offering principled alternatives. Cass Sunstein agrees and has a new book out that hopes to do just that, as does Supreme Court Justice Stephen Breyer, who has written a book that takes originalists to task.
But Yale’s Jack Balkin has my favorite take of all: originalism is a charade that no one really believes in anyway.
…The living Constitution is central to the American constitutional tradition, so central that even its loudest critics actually believe in it. […]
Even the Supreme Court’s two professed originalists, Justices Antonin Scalia and Clarence Thomas, believe in the living Constitution. Scalia’s concurrence in Raich v. Ashcroft — this term’s medicinal-marijuana case — demonstrates that he long ago signed on to the idea of a flexible and broad national power that came with the New Deal. And Thomas argues for First Amendment protections far broader in scope than the framers would have dreamed of. Both Justices joined the majority in Bush v. Gore, which relied on Warren Court precedents securing voting rights under the 14th Amendment. There was just one tiny originalist problem with that logic: The framers and ratifiers of the 14th Amendment didn’t think it applied to voting.
Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers’ understandings are a political slogan, not a serious theory of constitutional decision-making.
Indeed, for the all the talk about “strict constructionists,” the rhetoric is hollow and meaningless.
Indeed, the consequences of an originalist interpretation are stunning when taken through a logical progression.
Many Americans fail to realize how much of our current law and institutions are inconsistent with the original expectations of the founding generation. A host of federal laws securing the environment, protecting workers and consumers — even central aspects of Social Security — go beyond the original understanding of federal power, not to mention most federal civil rights laws that protect women, racial and religious minorities, and the disabled from private discrimination. Independent federal agencies like the Federal Reserve Board, the Federal Trade Commission, and the Federal Communications Commission would all be unconstitutional under the original understanding of the Constitution. Presidential authority would be vastly curtailed — including all the powers that the Bush administration regularly touts. Indeed, most of the Bush administration’s policy goals — from No Child Left Behind to national tort reform — would be beyond federal power.
Conversely, a vast number of civil-liberties guarantees we now expect from our Constitution have no basis in the original understanding. If you reject the living Constitution, you also reject constitutional guarantees of equality for women, not to mention Brown v. Board of Education and Loving v. Virginia, which struck down laws banning interracial marriage. Liberals and conservatives alike would be discomfited. The original understanding cannot explain why the Constitution would limit race-conscious affirmative action by the federal government, nor does it justify the current scope of executive power.
Originalism is a catch phrase. Bumper-sticker principles may help rally conservative activists, but the fact of the matter is that even they don’t buy it.
Adele Stan recently argued that originalism has broad-but-thin support because “liberals have done virtually nothing to explain the Constitution to regular people in terms they understand,” prompting Kevin to note, “Regardless of originalism’s substantive merits, you can’t fight something with nothing.”
I think that’s true — the left should explain why a living Constitution makes sense — but at the same time, it’d also be nice to help rip the mask off originalism and expose it as a fraud.