But I’m also starting to place a bigger premium on a particular benefit of originalism: the benefit of progressing democratically.  The practice of striking down democratically passed laws is, to me, the most problematic aspect of judicial activism.  As I mention in the posts linked above, opponents of originalism erroneously conflate the theory with “no progress.”  But by refusing to articulate new and non-existing rights in the Constitution, the Court would promote that same progress through democratic processes.  I very much prefer slow and democratic progress (assuming I’m for the substantive result) to quick and judge-made progress through incorrect interpretations of the Constitution.  But, more to the point, I almost have a general preference for any democratic law to any alternative articulation by the Supreme Court if it involves striking down that law.

Mark Tushnet wrote a book a couple of years ago called Weak Courts, Strong Rights, of which I’ve only read a snippet.  He proposes a “weak-form judicial review,” which “respects the right . . . for majorities to prevail when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those the courts offer.”  Considering that the power of judicial review is mentioned nowhere in the Constitution, much less the ultra-powerful version exercised by federal courts today, there is no constitutional problem with this kind of review, putting aside the whole “it is emphatically the province of the judicial branch to say what the law is” thing articulated in Marbury v. Madison.

Such an interpretation has several benefits.  First, it encourages democracy even more than an originalism that invalidates laws in the name of original intent.  Second, it wouldn’t hinder federal, state and local governments’ pursuit of legitimate policy objectives.  Take the three cases mentioned in the previous two posts as examples.  Should the Second Amendment  suddenly prohibit a crime-ridden city from regulating and banning certain fire-arms, considering that the law had been on the books for over 30 years — even if the Second Amendment protects an individual right?  Should the Fourteenth Amendment prohibit using race to integrate schools, when the purpose of such integration — and the Fourteenth Amendment itself — is/was to help disadvantaged African Americans?  Should the First Amendment’s guarantee of free speech prohibit the government from banning particular corporate campaign expenditures when the overriding purpose is to preserve the integrity of our basic political process and to prevent rich speech from drowning out poor speech?

Regardless of where one comes down on what the Constitution mandates in these instances, I find an interpretation of the particular constitutional provisions that permits these types of policy preferences to be entirely reasonable. Crime-prevention, diversity/integration, and preventing corruption are all compelling justifications for the laws at issue in those cases, and, putting aside the Court’s strict scrutiny jurisprudence, would seem to pass a reasonableness test.

A third benefit of this approach is that it would seem to lessen the likelihood of politically motivated decisions cloaked in legal justification.  It would be more difficult for an activist judge to implement an alternative policy from the bench if the law merely had to represent a reasonable interpretation of the Constitution.  This would also create a truer version of political accountability, as the populace is not free to overturn a Supreme Court decision with which it disagrees, absent a constitutional amendment.

Clearly this isn’t the way our Constitutional system works at the present.  And I’m not even entirely convinced that it’s a better method.  But I can’t help but be sympathetic to a form of judicial review that tends to defer to democratically passed laws as opposed to one that permits judges to permanently prohibit a particular brand of policy by striking down such laws — regardless of whether the decision is originalist or not.  Under this type of analysis, all of the cases we’ve discussed — including Roe and Lawrence – may have been wrongly decided.

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.

If I am right that [the Supreme Court] is a political court, the absence of term limits is an affront to democratic theory; conferring life tenure on politicians is profoundly undemocratic.

From Posner’s perspective, the absence of term limits can be regarded as an affront to democratic theory.  But turning a separate branch of government with a completely different purpose in our tripartite system into a second legislative branch is certainly an even bigger affront to American constitutionalism.  Imposing term limits on the Justices does nothing to address this central – and much more significant – concern.  The biggest affront to our structure of government is settling on a false application of America’s constitutional ideals.  And this, in fact, becomes the real affront to democratic theory: judges that reach beyond the constitutional text’s original understanding by articulating new rights under the guise of interpreting the text strip the population of its basic right to use the democratic process to determine for themselves the issues that the Constitution does not address.  Such a jurisprudence essentially robs Americans of their democratic voice on the most divisive issues.

In so doing, the Court seals its fate as a political institution.  So long as the America that people want depends in large part upon the composition of the Supreme Court, nomination of potential justices will be politically charged rather than merit based.  Justices will be chosen based on whether they interpret the Constitution strictly or expansively.  They will be chosen based on whether or not they plan to defend the constitutional protection of abortion, articulate a constitutional right to same-sex marriage, or interpret other provisions as protecting a newly defined fundamental right.  In so doing, nine justices unaccountable to the electorate will be blanketing the entire country with their own subjective beliefs as to what rights ought to be in the Constitution.

The most crucial point here is that this should trouble people of all political stripes.  I am often astounded by how many Americans seem completely indifferent as to how rights are protected.  They don’t care if a state law is passed, a federal law is passed, a judge reads a new right into a state or federal constitution, or if the Constitution is simply amended so long as they obtain their desired result.  But this is one of the most flagrant examples of “ends justifies the means” analysis present in our society.  We should be troubled by ultra vires acts by the government regardless of our beliefs.  I strongly believe in a woman’s right to choose to have an abortion and in everybody’s right to marry whomever they wish.  But I also believe in every American’s right to have their say on these divisive issues through the basic democratic process that this country was founded upon.  I cannot justify the uniform application of my personal ideals to the whole country solely upon my strong desire for such a result.  Absent a clear mandate in the Constitution, I, like everyone else, must seek desired change through the democratic process.

Consider the alternative.  If Roe v. Wade was overturned, the decision of whether or not to prohibit abortion would be left to the states. People all across the country would be able to voice their opinions on the issue through their individual votes on local leaders.  Alternatively, Congress could conceivably use their power under the Commerce Clause to protect a basic right to abortion through statute.  Either of these results would remove this lightning rod of an issue to its more appropriate home – the political sphere.  Such a turn of events would result in the Court regaining a large degree of its lost integrity.

Yet, I still feel somewhat conflicted by this result.  A huge part of me thinks that it’s great because people should be allowed to marry whoever they want.  But another side of me questions the way in which this legal obstacle in Iowa was removed.

It’s worth comparing this decision to Lawrence v. Texas, which I’ve already written was wrongly decided.  In Lawrence, Justice Kennedy’s majority opinion was rooted in an almost metaphysical interpretation of the Fourteenth Amendment’s Due Process Clause.  Sexuality, according to the Court, is a protected liberty under the principle of substantive due process.  But the Iowa Supreme Court did not strike down its same sex marriage bans on that rationale.  Rather, they adopted the reasoning of Justice O’Connor’s concurring opinion in Lawrence that such statutes violate Iowa’s equal protection clause.

At first glance, this decision seems less problematic than Lawrence.  Equal protection, in principle, seems like a more appropriate legal ground upon which to base invalidation of gay marriage bans.  Furthermore, this is by and large the state making the decision for itself.  However, I still feel that such steps should be taken by legislatures rather than courts.  Iowa has had an equal protection component to its constitution since 1857.  Just as the federal constitution, it was undoubtedly passed having protection of African Americans in mind.  Nobody would have thought in 1857 that the equal protection clause in the Iowa Constitution (or the United States Constitution 11 years later) was intended to do away with the traditional understanding of marriage.

Iowa’s Supreme Court fully recognized this.  Its opinion explicitly adopted the position that “equal protection can only be defined by the standards of each generation.”  This is basically an argument for a living constitution.  While such a theory seems to make a lot of sense, it entrusts nine judges with the task of keeping their finger to the pulse of social norm.  This I have a problem with.

When something like traditional marriage is so engrained in society, redefining it should be the task of the people through the democratic process.  As much as I’m happy for gays and lesbians in Iowa, I can’t help but be disappointed in the process through which they’ve achieved this basic right to marry the person they want.

In a previous post, I argued that originalism as a method of constitutional interpretation can coexist with contemporary progressive values that are often held by those who oppose originalism.  To somewhat rearticulate my point, if we have a Constitution, we ought to treat it as such regardless of how inconvenient it may be in our pursuits of social change.  However, that does not mean we can’t address whether its provisions, while supreme and unyielding law, make normative sense in the 21st century.

Perhaps the biggest theme in the original Constitution is the principle of federalism.  While the Constitution lays out a framework for the operation of a federal government, it is in large part an exception (albeit a huge one) to the general proposition that power lies with the states.  States were originally free to govern as they saw fit so long as they did not offend “the supreme Law of the Land.”  Considering (1) the Bill of Rights were not at first binding upon the states, (2) the nature of early interstate commerce (the legal basis of contemporary federal legislation), and (3) the absence of the XIV Amendment, this gave states a whole lot of room to pass a wide range of laws.

But more than any other constitutional principle, American federalism has been almost radically transformed.  The Civil War and its aftermath led to the XIV Amendment, giving the federal government the power to enforce equal protection of the laws and apply the majority of the Bill of Rights to the states.  The New Deal redefined our understanding of “interstate commerce” and hugely expanded one of the few constitutional bases upon which Congress may act.  So while the original Constitution reserved the majority of power for the states, both the XIV Amendment and the Supreme Court’s expansion of “interstate commerce” carved a huge amount of that original power from the states and essentially handed it to the federal government.

Notwithstanding its transformation over the centuries, federalism remains a huge component in our constitutional scheme.  But if we were to start a Constitution from scratch today, how would principles of federalism fit in? Is federalism the best structure for governing a 21st century America?

My initial reaction is that I have no earthly clue.  My gut tells me that regionalism and state sovereignty were more sensitive issues back then given how much more we are interconnected these days.  The fear of a strong centralized government was also fresh in the minds of the founders.  The issue of slavery exacerbated conflicts of interests among the states and they refused to succumb to the idea of a federal government capable of imposing its will uniformly upon them.  The dynamic in those days was thus radically different.

But perhaps the way in which federalism has constitutionally expanded along side modernization is an accurate reflection of the balance needed in contemporary society.  Even if states were abolished, the federal government would need to govern locally and there are still unique attributes that accompany America’s localities that warrant different laws.  So is the question then whether we want the federal government making local law or separate state governments making local law?  How do either of these situations affect the way in which localities are governed?

These questions obviously raise an enormous amount of other issues, most of which I can’t think of.  One of them is whether Congress’s power to pass laws should be largely pinned to regulating interestate commerce.  It is so easy to cite interstate commerce as a justification for passing laws because virtually everything affects interstate commerce in the abstract.  The contemporary Congress seems to pass laws that go well beyond simply regulating interstate commerce.

Let me then shut up and leave you with this question: If you were to write a constitutional provision reflecting Congress’s actual authority under the commerce clause, how would you phrase it?  In other words, what does Congress’s power to regulate interstate commerce actually empower Congress to do?