FedSoc at Dartmouth: The Case for Originalism in Judicial Interpretation

In light of Madison Coalition Director Roman Buhler’s recent visit to campus, as well as the founding of American Constit­tuion Society and Federalist Society chapters over the past few years, I feel compelled to speak on the subject of consti­tutional originalism. The U.S. is at a time of political turmoil. Among many factors that have led to this state includes the politicization of the Supreme Court. This can, in part, be attributed to the judicial ide­ology of Developmentalism/Living Constitutionalism. This is based in the idea that the Constitution is a living and changing document that ought to be interpreted differently as times change. The opposite and less initially popular-sounding ideology (yet fundamentally superior one) is that of Origi­nalism. This supposes that the Constitution and its Amend­ments ought to be read as they would have been at their times of adoption. Rather than em­brace Originalism and interpret the law with neutrality, the Su­preme Court, through judicial Developmentalism, has taken upon itself the responsibility of representing the desires of the people or implementing its own desires.

Roe v. Wade (1973) and Obergefell v. Hodges (2015) are interpretations of the Fourteenth Amendment’s Due Process and Equal Protection clauses. An originalist inter­pretation would say that the words of the amendment are not specific to either abortion or same-sex marriage and that they may not be used to remove these issues from the legislation of the States. Judicial develop­mentalists over time have used this amendment to invent con­stitutionally protected rights and classes of people in what is known as Substantive Due Pro­cess. The Fourteenth Amend­ment’s Due Process Clause reads: “[the States shall not] de­prive any person of life, liberty, or property, without due pro­cess of law. This does not mean that there should be secret “[liberties]” that can be creat­ed that exist beyond the context of the text of the Constitution. The purpose of this clause was to apply the Bill of Rights to the state governments, what previ­ously only applied to the United States. The “[liberties],” as they are referred to, are those that are protected by the Constitu­tion already (particularly in the Bill of Rights). For example, any supposed “right to privacy” that might justify abortion as con­stitutionally protected – or any­thing else – is nonexistent. 

Furthermore, in reading and writing the amendment at the time of its adoption, the people would not have applied same-sex marriage to the Equal Pro­tection Clause of the Fourteenth Amendment (understand this issue is just an example). The amendment reads, “[the United States and the States shall not] deny to any person within its jurisdiction the equal protec­tion of the laws.” In reality, the objective of this amendment was to enshrine racial fairness, not to allow the courts to create unlimited protected classes of people as it desires. This is the basis by which men and women are treated differently under law (particularly in the context of the draft). The Equal Protection Clause is not designed to say that every law must apply equal­ly to everyone. If this were the case, hopefully, tax laws would apply like this. Certainly, this is not how the amendment would have been interpreted in 1868.

The expansion of protect­ed classes of people under the Fourteenth Amendment with­out a judicial framework sup­porting how the text would have been read at the time of its adoption allows the Court to expand protected classes of people to hypothetically any­one. For example, these nine unelected judges could interpret transgenderism as a new pro­tected class. The Court could, in doing so, outlaw all laws that might restrict transitions for minors. Using this method of interpreting the Constitution and inventing protected classes of people, the Court becomes a new oligarchy that legislates. The debate over whether tran­sitions for minors is acceptable, or the debate over the legitima­cy of transgenderism as a whole is removed from the discourse among the democracies that are the States (and even the federal government).

Judicial Developmentalism supposes that interpretations of the Constitution ought to change as the times change. However, if there is ever a mat­ter of such grave importance and change in overall perspec­tive that it has become neces­sary that the federal govern­ment must protect it (assuming they had no right to do so in mere legislation under the pro­visions of the Constitution), the country ought to come to­gether and pass an amendment. A perfect example of this ex­act phenomenon was in the ratification of the Nineteenth Amendment regarding women’s right to vote. But in the cases of Roe and Obergefell, the intent of the people at the time of the Fourteenth Amendment’s rat­ification has been disregarded by unelected judges who would rather use their own moral val­ues to decide cases. 

If the Supreme Court ought to interpret the Constitution based on how they think the people’s values are or merely based on their own, they are nothing more than an addition­al Congress (only one that is un­checked). But this undermines the fundamental existence of the Supreme Court. “Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant.” Obergefell v. Hodges, 576 U.S. 644 (2015) (Scalia, J., dissenting). Such an idea of this oligarchic Court is not only flawed based on the undemocratic nature of the jus­tices and the small number of decision-makers, but, most im­portantly, their lack of diversity in representing America. The truth is that the justices are all well-educated (mostly of the Ivy League), typically from the coastal states, and usually old­er. In his dissent from Oberge­fell v. Hodges (2015), Justice Scalia writes about such lack of diversity: “The strikingly un­representative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judg­es, answering the legal question whether the American people had ever ratified a constitution­al provision that was under­stood to proscribe the tradition­al definition of marriage” (ibid).

At the time of the Obergefell decision, 11 states had legalized same-sex marriage. This was a major topic in American dis­course. Democracy was thriv­ing, and discourse was valued. There is serious merit in the de­bate over what ought to be clas­sified as marriage. The Supreme Court, in its ruling, murdered the American conversation, the people’s desires, and throned it­self the king. With this interpre­tation of the Constitution, the Court effectively enacted legis­lation and imposed its will upon the legislatures of the states (and Congress). The Court or­dered that same-sex marriage is a proper definition of marriage and that it must be equally pro­tected. 

A question that can certainly be raised is why the Court has decided to legalize same-sex marriage across the entire Unit­ed States and does not protect a Mormon or a Muslim man’s re­ligious right to marry multiple women. Perhaps this could be interpreted even more broadly: why has the court not enshrined the right for anyone to marry as many people as they want? Why can three people not get mar­ried? Why are “persons-with-at­traction-to-multiple-persons” not their own protected class in which equal protection applies? I suppose the Court has not de­cided to legislate on these issues yet. These are all situations in which the Fourteenth Amend­ment does not apply via an orig­inalist interpretation. Ideally and based on the principles of Originalism, these issues would all be decided by the people of the states.

Another example of how this power can be abused is in return­ing to the subject of abortion. The Court, using a particular interpretation of the Fourteenth Amendment, could either take away the right to abortion for all of America or force it to be legal for all of America. The vote of nine unelected judges (lawyers) could say that abortion ought to be unquestionably legal un­der the Fourteenth Amend­ment’s Due Process Clause (as happened in Roe). Or such an unelected body could interpret (based on their own will) that abortion must be illegal for all of America using the exact same clause. Using “liberty” to create a right to privacy and abortion is just as legally unsound as us­ing “liberty” to justify a baby’s right to life. Rather than under­stand that abortion would not have been read as being relevant to the Fourteenth Amendment in 1868, the Court, using the philosophy of judicial Develop­mentalism, could use Substan­tive Due Process to rule in any way that it desires.

Obergefell and Roe are not unique in the application of judi­cial Developmentalism to their decisions. This has been an on­going problem for decades. It is not necessarily aligned with one political ideology, and, as can be seen in the case of abortion, can have negative political ramifi­cations across the entire politi­cal spectrum. Overall, many of the decisions that have helped expand the American public’s skepticism for the Court have been based on decisions involv­ing Substantive Due Process and judicial Developmentalism. No longer must a justice be a good lawyer, but a good politi­cian. Their personal opinions should not matter, but in the modern political world, they do. Now, their values define the laws of the United States. In the modern era, the Supreme Court often abandons its beacon of objectivity for control over the American Culture Wars.