Antonin Scalia's death, the subsequent 4-4 split on the union case, and the twists and turns in the Little Sisters of the Poor case, I've been thinking about Scalia and his approach to constitutional law. Scalia was what is termed an "originalist". That means, when interpreting the constitution, the interpretation should be based on what a reasonable person living at the time of its adoption would have declared the ordinary meaning of the text to be.
Scalia defends originalism in this article:
“My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult,” Scalia said.
Even the most ardent non-originalist will have to resort to historical inquiry at times to understand legal concepts like the writ of habeas corpus or cases of admiralty, he said.
Scalia pointed to District of Columbia v. Heller, a 2008 Supreme Court case in which several D.C. residents challenged the District’s ban on handguns and restrictions on other firearms. Defenders of the law said the right to “bear arms” as outlined in the Second Amendment had an exclusively military meaning, but a 5-4 majority in the Supreme Court showed the meaning was different by looking at historical texts.
The right to have arms for personal use for self-defense was regarded as one of the fundamental rights of Englishmen, Scalia said.
The prologue of the Second Amendment, “a well-regulated militia being necessary for the defense of a free state,” could not be reconciled with the personal right to keep and bear arms unless one had the historical knowledge behind it. In England “the Stuart kings in had destroyed the people’s militia by disarming those whom they disfavored.”
Critics of originalism exaggerate the difficulty of determining original meaning, Scalia said... But in most cases, especially controversial ones, the originalist point of view is clear, Scalia said. No provision of the Constitution guaranteed the right to abortion, homosexual sodomy or assisted suicide, and nothing prohibited the death penalty, he said.
“All these questions pose enormous difficulty for non-originalists, who must agonize over what the modern Constitution ought to mean with regard to each of these subjects, and then agonize over the very same questions five or 10 years later, because times change,” he said....and there's the rub, and in my mind the best argument in favor of originalism, regardless of which side of which issue you are on. If the Constitution means what we think it ought to mean, instead of what it says, then we no longer have a republic. We have a "democracy" where only nine people get to vote. We are never more than several votes away from tyranny, and American citizens have no rights except those granted to them by five justices.
If, on the other hand, we fix the Constitution with regard to what it says, we have a republic, where rights are guaranteed b law. But what about cases where the Constitution is legitimately wrong? What about things it never mentioned?
First off, the Constitution is about limiting federal powers, not about being a litmus test for every law and every issue. Where it is mute, the states or the people have the right to decide for themselves. Making issues constitutional is a bad idea. Justice Scalia once said in an interview:
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.And where the Constitution si flat out wrong we are still ot in a hole. Consider the nineteenth amendment. The states have the right, under the Constitution, to decide who can and cannot vote. At one point some states allowed women to vote and some did not. On this point the Constitution was mute. How was the issue solved? By installing judges and justices who magically found "implied" rights for women to vote? No, they went and ratified an amendment:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.Had they not done so, and instead relied on justices to settle the matter, the rights of women would depend on the good will of five individuals, and that right could be overturned by a future administration installing justices who would magically find some different view.
Congress shall have power to enforce this article by appropriate legislation.
Instead, we have a written amendment which guarantees women's rights regardless of what people think about it.
Today we have a runaway court, which finds all sorts of implied rights. If those rights are to be real, and not just the opinion of five people, we need to stop the tide of judicial activism and do things "the right way."