Originalism and the Virtues of Democracy

I’ve recently been read a couple of books by Richard Posner and Cass Sunstein – two of the most prominent legal thinkers alive today.  In so doing, I came across a noticeable void in their respective discussions about constitutional law: neither of them provides insight into what the philosophical purpose of a constitution actually is.  Posner spends the majority of his discussion on the pretextual nature of judicial philosophies, while Sunstein seems to explicitly state that constitutional law is about achieving desirable results rather than adhering to what interpretation requires.

Yet the question of whether judicial philosophies are merely custom-made pretexts for individualized and desirable results is irrelevant to the inquiry of whether a judicial philosophy is in fact correct and desirable. And the focus on substantive results and consequences, while certainly an appropriate consideration when interpreting vague, ambiguous, and ancient constitutional text, does not belong at the forefront.  What does, in fact, belong at the forefront becomes clear when the purpose of a constitution is considered. This inquiry causes the American system of government to emerge with better clarity.  What we see is an organized society whose charter does not call for a permanent and authoritarian form of change through manipulative interpretations of its text, but rather popular change through the democratic process of law-making; laws that can compromise, change over time, and represent the voice of the citizens that they are created to rule.

A constitution is a limited set of binding principles designed to endure through changing times.  The key words here are (1) limited, (2) binding, and (3) endure. Because a constitution represents the birth of an organized society, the principles it addresses are the most basic and fundamental aspects of how the government is designed to operate. Such basics are limited in the sense that they cannot establish what they do not address. Notwithstanding Sunstein’s refusal to acknowledge what the word “interpretation” means, it certainly cannot mean seeing something that is not there.

A constitution is binding in the sense that society must follow its dictates. If a constitution could be readily disregarded by succeeding generations, this would run counter to the concept of organized society.  This concept goes hand in hand with the philosophical necessity that a constitution should endure.  If a constitution’s original meaning does not endure, then its purpose and utility are stripped.  A constitution’s original meaning must be preserved in order for the document to endure; if its words were permitted to change over time, it would not be an enduring charter for the functioning of government, but a tool for manipulation in an effort to effect change.  But a constitution is not designed to facilitate change; it is designed to impede change. Individuals may wish for “due process of law” to include the right to smoke marijuana or to solicit prostitutes.  But such basic national principles must mean what they were designed to mean, not what a portion of society would like them to mean.

Many people erroneously associate originalism and other forms of strict interpretation with a lack of progress.  They argue that such interpretations would “take us back to 1789.”  But these arguments dramatically misconstrue the consequences of strict interpretation and, simultaneously, how American federalism operates.  The application of a minimalist form of originalism would simply remove the constitutional justifications for some of the country’s most polarizing and controversial issues.  For instance, the reversal of Roe v. Wade would place the issue of abortion in the hands of either federal or state legislators.  Congress could pass a right to choose law, or, alternatively, the individual states could write their own laws on the matter.  While this would create a broad array of state laws addressing abortion, leaving some of the country’s citizens displeased with others, such a result would at least be a democratic one.  Uniformity is a desirable goal, but not if it’s one side of a divisive issue imposing its view on the rest of the country.

Originalism is thus a promoter and facilitator of democratic progress; a form of progress that is a hallmark of our constitutional scheme.  Societal advancement on controversial matters is best left to the People through the exercise of their democratic rights.  Most importantly, such progress is worthy of confidence, as we can be sure that it is the People themselves who are at the wheel and effecting a desired change, not a “governing caste that knows best.”

I recently had a discussion with a friend about Lawrence v. Texas.  I explained to her that, in Lawrence, the Supreme Court held that laws banning homosexual sodomy were unconstitutional.  I was curious to know what she thought and asked her whether she agreed.  Her immediate response was that the Supreme Court was 100% right and that laws like that are clearly unconstitutional.  What amazed me about her response was that there was no inquiry into what the Constitution actually said, or upon what provision the Court’s holding was based.  I realized then that when she said “laws like these are unconstitutional,” she was basically saying “I don’t like these laws.”  In other words, whether something is unconstitutional depends, to her, on her subjective beliefs of right and wrong.

This type of thinking is not unique to my friend.  It is prevalent in American society.  Too often we decide that certain laws or policies are unconstitutional based solely on our individual moral compasses. But whether something is unconstitutional must depend on what’s contained in the document, not on what we think it should contain.

Consider the many times courts upheld slavery in the pre-Civil War era.  Since the original Constitution explicitly sanctioned slavery through the Three-Fifths Clause, the Importation Clause, and the Fugitive Slave Clause, were courts wrong to uphold the institution, knowing full well the horrors of slavery?  This question still remains in other forms today and can be stated in more general terms: is it the Court’s job to uphold the Constitution, no matter how undesirable the results, or is it the Court’s job to exercise its own ideas of right and wrong?

There have been many incidents in American history where an originalist holding would have resulted in upholding horrific laws such as school segregation, discriminatory laws against women, and laws that banned homosexual sodomy (I believe that there is an originalist argument in defense of Brown v. Board of Education, but I will assume in this paper that an originalist approach would have resulted in upholding school segregation.).  When the Court is faced with such cases, it must decide whether to uphold undesirable laws that have strong justifications in the constitutional text or to aggressively strike these laws down as the product of a “living constitution,” complete with “evolving standards of decency.”

But is the substantive change more important than the process through which it comes about?  Should we want the Court to strike down laws we don’t like at the expense of letting these laws die naturally through the democratic process?  After all, Texas was one of the few remaining states with anti-sodomy laws at the time Lawrence was decided.  And can we really say that Congress wouldn’t have eventually banned school segregation if the Court didn’t decide Brown?

The point of this painfully long post is that that there is more at stake in these cases than the change sought.  The way in which change occurs is just as important as the change itself.  This process implicates our bedrock democratic principle of having the People steer the wheel of change through their votes.  If the Court exercises its authority on controversial subjects, it strips the People of this basic right.  If the Constitution does not speak to a particular subject matter, we should value the right of People to decide for themselves the laws under which they choose to live  just as much as we value the change itself.  We should value the right of people to pass laws that we might hate if the Constitution so permits.   If it means that undesirable laws must endure longer than some would like, then this is the price that we must pay to protect the system itself.