The
controversy surrounding the Supreme Court decisions over the last two decades
has been a widely documented phenomenon. Gaining great notoriety from failed
decisions – Marbury v. Madison, District
of Columbia v. Heller, Citizens United v. Federal Election Commission, Plessy
v. Ferguson, Bush v. Gore, etc. – the spot light has shifted onto the
officers who occupy the highest court of the land. The existence of “originalism” in the conservative
Justices – the late Justice Scalia and Justice Thomas – has resulted in restrictive
and eccentric judicial decisions.
Originalism has been considered by
its supporters to be the true interpretation of the United States Constitution,
and the correct understanding of the original framework intended. However,
originalism has continued to portray its true intention’s of personal interest:
a cloak for conservative, pro-corporate, rights limited policy agenda. The Citizens United Supreme Court decision
is one example, where Justice Scalia’s dissent embarks on a detailed exploration of the Framers’
views about the role of corporations in society. Justice Scalia, in part of his
decent states, “Though faced with a Constitutional text that makes no distinction
between types of speakers of the corporations, the dissent feels no necessity
to provide even an isolated statement from the founding era to the effect that
corporations are not covered, but places the burden on
petitioners to bring forward statements showing that they are”.[1] The constitution, nor the majority
justices, found any statements that would allow corporations first amendment
privileges besides their own interpretation of Freedom of Speech and their
understanding of the true context of the Constitution through “originalism.”
Justice Thomas, who is
considered a great deal more conservative than his colleagues, is also been debated to be the most
conservative Justice we’ve had in almost a century. Highly idiosyncratic,
Justice Thomas seems to be another Supreme Court officer that he endorses the
idea of originalism. However, many times over, Justice Thomas has rejected
previously set precedent, as well as finding reasons to disagree with most
liberal opinions due to his own self-interest. Although a clearly conservative
aspect, the case of Whole Womans Health v. Hellerstedt surrounded the
topic of abortion. By a 5-3 vote, the court struck down Texas’ restrictions on
abortion clinics, which he dissent, as well as writing the opinion of the
dissenters – which the other Justices did not join. Although Thomas’ dissent
was inevitable, he noted that he “remains fundamentally opposed to the Court’s abortion
jurisprudence”[2]
while taking the opportunity to reject the Courts precedent that remained for
over a century. Justice Thomas is so confident in his interpretation of the Constitution,
that he rejects the whole idea of Constitutional law and follows his own -
lacking the respect for the Courts precedent.
For the officers of the judicial branch to follow their
own interpretation of what the Constitution says is simply stupid. The
Constitution may not be able to change, but the world in which it applies to
does. Change is inevitable, and it comes over time. With the constant morphing
of people and society, the Constitution must be interpreted in a way to adapt
to the majority. There is a strange inconsistency with rulings of the past to
the present due to changes in society – like segregation, slavery, abortions,
women’s rights, etc. If originalism is consistently following the exact words
of the Constitution, then how can Court Justices show different interpretations
and outcomes to the same decisions? The Constitution may be the backbone and
foundation of the rules and regulations; however, it should not be the boundary
society is confined too. Besides, how can anyone interpret an originalist view
of the Constitution if it has been amended over time?
Interesting topic. Originalist interpretation of the Constitution has always been considered admirable and even somewhat "faithful." I use the word faithful because the Constitution is treated almost like a religious text by originalists. As society changes, conservatives are especially prone to respect this strict outlook because it grasps, as you noted, on as much of the past (precedent, literal translation) as possible. It's the nature of conservatism. Not, necessarily, a bad thing: just a way of looking at a text that is so valued and engrained into our society. I think you are right that we need to be looking at the Constitution critically -- how can it's values and interests be most effectively applied to our society today: a society so vastly different from that of the founders?
ReplyDeleteYes. The idea of originalism sounds great, but just isn't realistic. Things change and society changes; things that were once considered abnormal are now today's norms, so out of date rules, regulations and these amendments need to be able to factor all those in play.
DeleteYou got what I was trying to get it :)
I find it really interesting that there is even a term for applying the Constitution word for word, through originalism. Did originalism start with former Justices or was it first recognized by Scalia and Thomas?
ReplyDeleteI find the idea of being confined to such bounded rules, like originalism, to be absolutely stupid. Great piece!
I wouldn't say that they were the first ones to start originalism, but to give it a term and lay out their approach to adjudicating whatever the case may be is definitely what they did.
DeleteMore Scalia than Thomas. The idea might sound patriotic and great, but it just doesn't work in this society.
It's frustrating to see the deeply rooted naive attitude engraved in our judicial system. Last year, after Scalia's death, I read an article that was very pertinent to the dichotomy between originalism and liberal interpretation of the constitutional law. Noah Feldman, a Harvard law professor, said of Scalia, "His greatness derived from his carefully articulated philosophy of constitutional interpretation, based on the law as a set of rules that should be applied in accordance with the original meaning of the document. Yet on issues from race to gay rights to environment, his reactionary conservatism consistently put him on the wrong side of constitutional law's gradual progressive evolutionary path."
ReplyDeleteSo, yes, originalist interpretation is fundamental in remaining faithful to our nation's past. But, hardcore conservatism should not be associated with originalism. More progressive views should be applied in making decision on Supreme Court cases, especially because of the way our society is changing today. As you said, how can we incorporate originalist interpretation, if the Constitution itself is inclusive of amendments and changes from the original document.
- Vivian Kasparian; Fit For Take Off
I am no defender of originalism by any stretch, but the issue that many originalists bring up in its support is the idea of 'precedent' that a previous interpretation of the constitution is relevant years later. IE Marbury vs. Madison, which is cited in this post, needs some sense of originalism to be considered in our contemporary discussions. While I find a living document interpretation more to my own opinions, the whole concept of originalism cannot be completely abolished, otherwise the court would have no consistency on its previous rulings. It takes a second suit and a new law, like that of the Civil Rights act to undo Plessy v. Ferguson. It's slow and deliberative, but if it wasn't so, the courts rulings could be radically different decade to decade and cause more harm than good in it's inconsistency regardless of political affiliations.
ReplyDelete