Sunday, April 14, 2013

A Critique of Originalism and the Living Constitution

By Jeongkwan Lim
Jeongkwan Lim, an international student from South Korea, is in his second year at Albany Law School. He studied political science and philosophy as an undergraduate and received a masters degree in political science at Sogang University in Korea.  Prior to law school, he worked for a local government institution in Korea as a researcher.  Jeongkwan is interested in international law and philosophical debates about judicial power and the judicial process.
Jeongkwan's essay was prepared for the Judicial Process Seminar, Fall 2012.

Rehnquist said in his article, “The Notion of a Living Constitution,” that “[t]he framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment.”[1]

He also agreed with Justice Holmes that the words of the Constitution have called into life a being, the development of which could not have been foreseen completely by the most gifted of its begetters.[2]  He seemed to put the idea of applying general language in the Constitution to the unceasingly changing environment of the “living.”

However, Rehnquist wanted to put a limitation on the notion of a living constitution.  He criticized the brief writer’s version of the living Constitution, which insists that the courts should play a role as the voice and conscience of contemporary society when other governmental branches have abdicated their responsibility.[3]

Therefore, the federal courts, Rehnquist insists, should not interfere. That is so, even if a state’s legislature and governor, or the federal Congress and the President, have not solved a particular social problem.[4]

Basically, Rehnquist’s philosophy of constitutional law is that, when the meaning of general phrases in the Constitution are subject to a broad interpretation, judges should reduce that interpretation in favor of the other branches of government.

In other words, proponents of substantive democracy criticize laws that are enacted through a democratic procedure, but contain undemocratic decisions.  Nazi Germany is a good example that shows the limitation of formal democracy, because it was a legitimate government established by democratic procedure.  Moreover, an election is just one form of representation.

In old Greek democracy, people (male citizens) used a lottery as a way of deciding their representatives.  The idea that any person could be a representative might be a more effective way to prevent one of the weaknesses of modern democracy: politicians only representing people during election time.

As long as the general words of the Constitution contain democratic values, the problem of whether judicial review is acceptable or not in democratic society might be considered, not simply by a non-elected branch, but by judicial review itself.

Originalism might be the narrowest way of interpreting law—to stick to the original intent of the authors of the Constitution.  Scalia says that understanding original intent is possible through historical research.[6] But questions remain about whether you can discern pure original intent or whether a reading of such history is neutral.

We might add another part: the purpose of a constitutional guarantee is to prevent the law from neglecting certain changes in original values that the society adopting the Constitution thinks fundamentally desirable.

The most important reason he gives is that it is the popularly elected branches of government—the legislative and executive branches, not the judiciarythat are looked to for the solution of the numerous and varied problems faced in applying the general language of the Constitution.  Moreover, it violates the principle of democracy if a non-elected judge’s moral judgment replaces social morals, which have been enacted into positive law after debates by the representatives of the people.

Rehnquist emphasizes the limitations of the non-elected judiciary branch when interpreting the Constitution.  He says it is quite unacceptable in a democratic society that socially desirable goals are sought through a freewheeling, non-elected judiciary.[5]

Rehnquist’s justification for his judicial review is based on a restricted understanding of democracy. A strong belief that government legitimacy originally comes from its people, and that its people are only governed by their representatives.

Rehnquist’s understanding of democracy is correct, however, it is too formal and too theoretical to reflect the real essence of democracy.  Some people distinguish formal democracy and substantive democracy. Formal democracy focuses on procedural aspects of democracy, while substantive democracy focuses on undemocratic social problems that formal democracy overlooks.

But “election” is not even a core element of democracy.  The beauty of democracy is the idea of freedom, equality and self-governance.  An election is just a tool to achieve those goals.

The Court is an institution that has the same democratic legitimacy as does Congress. Both are through the people’s permission. But for the Court, it is not by election, but by the Constitution.  The idea that courts use judicial restraint because they are not an elected branch is akin to courts giving up their responsibilities in a democratic society.

Scalia’s idea of ”originalism” shares Rehnquist’s idea of the limited role of the courts.  Because the judiciary cannot enact law, judicial self-restraint can only be achieved by interpreting the law narrowly.

Logically, originalism cannot legitimately be reconciled with the development of civil rights that were accepted by the Supreme Court.  One solution of avoiding such criticism is to give up the dogmatic position of originalism.  However, when originalists give way on their position, as Scalia agrees one must, there is really no difference between the faint-hearted originalist and the moderate non-originalist.[7]

The originalist attitude toward political issues is that political questions should be handled by the political branches.  But Constitutional interpretation is itself a political activity that affects the political arena.  In fact, each judge is supporting political values that are, he thinks, fundamental to our society, and that is one reason why he or she is appointed as a Supreme Court justice by the president.

Ultimately, originalism supports conservative political ideas.  Among the approaches to constitutional interpretation, originalism is the approach that interprets the Constitution conservatively.

Scalia claims the purpose of constitutional guarantees is to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks are fundamentally undesirable.[8]  His claim is partly true.
[1] William H. Rehnquist, The Notion of A Living Constitution, 54 Tex. L. Rev. 693, 694 (1976).
[2] Id.
[3] Id. at 695.
[4] Id. at 699-700.
[5] Id. at 699.
[6] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).
[7] Id.
[8] Id. at 862.