Originalism: A Theoretically Legitimate and Democratic Interpretation of the Constitution
All 300 million Americans would likely interpret the Constitution and its intended meaning in slightly different ways. Everyone has unique experiences and perspectives that would impact their view on its original meaning and, more importantly, how to apply that to our world today. Nonetheless, there are two significant ways of interpreting the Constitution that judges and lawyers subscribe to, Originalism and the Common Law approach. Originalism seeks to understand the intent of the founders' writing while simultaneously attempting to understand the meaning of the words at the time. Originalists claim this is the only theoretically legitimate way to interpret the Constitution as it prevents judges from enforcing their view on the population. The common law approach states that judges are meant to solve practical problems in our rapidly changing and complex world. They do not ignore the Constitution but make decisions based on precedent and their view on good social policy and apply it to the current case. Common Law, as the opposing view to Originalism, believes that judges should make decisions based on precedent, fairness, and the Constitution. Originalists are constrained by the Constitution, while common law judges are constrained by precedent. Common Law is an illegitimate way of interpreting the Constitution as it allows judges to force their personal views on various cases. Thus, Originalism is a superior way of interpreting the Constitution as it allows for theoretical legitimacy with the consent of the governed, is fairer by forcing judges to understand our country's history, and allows the people rather than judges to consider changing values and contentious political, social, and economic issues of the day.
In a democracy, people work out their disputes in courtrooms, not violently on the streets. Thus, when there are disputes, there must be a final say, and both sides of the argument respect the decision and move on. In America, the courts have the final say in disputes between people, states, corporations, and many other groups. It is also important to note that the American court system has no physical way of enforcing its decisions. The Supreme Court has no army or soldiers to go around and force people to comply with their decisions. Why, then, do powerful states and interests follow the decisions of the Supreme Court even when they profoundly disagree? The answer is legitimacy. If people begin to see the court, specifically judges, as political and deciding constitutional issues based on their personal ideas of good "social policy," the court will lose all legitimacy, and disputes will not end peacefully in the courtroom but rather violently in the streets. For this reason, legitimacy is crucial to safeguarding our democracy, and Originalism is the only approach to interpreting and applying the Constitution that is theoretically legitimate.
The fundamental question in this debate is where does legitimacy come from? Originalists believe that legitimacy comes from Locke's social contract that people must consent to their government. For this social contract to hold, judicial review, the ability for courts to strike down laws, is only legitimate if it upholds the original understanding that the Constitution was agreed to. Common Law proponents believe that legitimacy comes from Law's evolutionary nature and continued relevance to modern life. The disagreement between these two theories lies in a fundamental question. Does the Constitution represent the will of the people? Common Law supporters would argue that the Constitution cannot represent the will of the people as it was written hundreds of years ago. First, this argument is illogical as the people can amend the Constitution today. They are also free to pass any laws that do not violate protected and clear rights. Secondly, if the Constitution was meant to expand rights over time, it was intended in branches other than the courts. Scalia states in his paper, "I take the need for theoretical legitimacy seriously, and even if one assumes (as many Non-originalists do not even bother to do) that the Constitution was originally meant to expound evolving rather than permanent values, as I discussed earlier, I see no basis for believing that supervision of the evolution would have been committed to the courts (Scalia, 211)." When courts expand rights, such as abortion, without those rights being in the Constitution, they do so without the people's consent. Therefore, the common law approach is theoretically illegitimate, as it makes decisions without the consent of the governed.
When judges rule on a deep understanding of history and apply it to a current case within the bounds of the Constitution, fairer outcomes occur. Common Law supporters claim that their approach is much more workable than an originalist's approach. David Strauss states that "The Common Law approach is more workable. Originalism requires judges and lawyers to be historians. The Common Law approach requires judges and lawyers to be, well, judges and lawyers. Reasoning from precedent with occasional resort to basic notions of fairness and good policy is what judges and lawyers do" (Strauss, 44). Scalia agrees with Strauss and admits that a historian would be more effective at applying originalist standards to court cases than a lawyer or judge. No doubt, Originalism requires more work and study of history than common Law. However, is it not essential to understand our country's unique history when ruling on different cases? An effective judge should be able to comprehend the history behind laws and apply it fairly to a diverse set of cases. As a society we should learn from, understand our history, and not shy away from it. Our founding fathers understood the importance and fragility of liberty, we should embrace their ideals and not believe that simply due to our modern technology we are more intellectually superior than they were.
One of the most crucial problems with the common Law and living Constitution theories in interpreting the Constitution is that it is fundamentally undemocratic and does not allow the people to have a say in how they view changing values. Professor Tribe is a significant proponent of these two ways of interpreting the Constitution. He states that the constitution "invites us, and our judges, to expand on the . . . freedoms that are uniquely our heritage (Tribe)." Similarly, Anthony Kennedy, in his opinion in (Obergefell v. Hodges, 576 U.S. 644 (2015)), a case that asserted the right to marriage equality, stated, "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed" (Obergefell). Anthony Kennedy, in this quote, perfectly summarizes the common law approach to cases. He is stating that it is up to current generations to interpret laws and apply them to the current society, not only relying on the founders' original meaning from hundreds of years ago. Originalists agree with this claim and believe that laws should be updated and in line with a society’s current values. The issue here is why should he and his eight other colleagues decide what good policy and current social values are. Do they inherently know more than 300 million Americans and their fellow citizens? Common Law strips the power of applying changing values from the people, while Originalism empowers the people to determine their own destiny.
Antonin Scalia's dissent in (Obergefell), is a perfect example of why common law judges subvert the will of the people and do not allow them to determine their own changing values. "This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy." Scalia's main argument here is not an attack on the freedom of people to marry whom they love, which the vast majority of the county now supports. The problem here is the fundamental error in the Common Law approach; nine unelected judges broke Locke's social contract, their theoretical legitimacy, and the ability of the people to decide their own changing values through debate, elections, and amendments. Common law supporters and those that defend the idea of a living constitution do not appear to have a problem with Originalism but rather democracy itself.