Originalism - Pros and Cons - Arguments Favoring Originalism

Arguments Favoring Originalism

• If a constitution no longer meets the exigencies of a society's evolving standard of decency, and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The Living Constitution approach would thus only be valuable in the absence of an amendment process.
• Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the "opinion of this Court so obviously upon nothing but the personal views of its members". Scalia has averred that "there is no other" criteria to constrain judicial interpretation.
• Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.
• If a constitution as interpreted can truly be changed at the decree of a judge, then "he Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please," said Thomas Jefferson. Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.
• If a constitution is to be interpreted in light of the evolving standards of decency, why, in most democratic countries, should the highest authority of judicial branch (e.g., the Supreme Court in U.S.) be the ones to have the final say over its interpretation? Is not the legislative branch which is elected, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgments? If originalism is wrong, then Marbury v. Madison—which holding underpins judicial review of constitutionality, that is, the meaning of the constitution — was wrongly decided, and two centuries of jurisprudence relying on it is thereby on shaky ground.
• Sometimes the Ninth Amendment to the United States Constitution is cited as an example by originalism critics to attack Originalism. Self-described originalists have been at least as willing as judges of other schools to give the Ninth Amendment no substantive meaning or to treat it as surplusage duplicative of the Tenth Amendment. Bork described it as a Rorshach blot and claimed that the courts had no power to identify or protect the rights supposedly protected by it. Scalia held similarly: "he Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people." Troxel v. Granville 530 U.S. 57 (2000) (Scalia, J. Dissenting). Scalia's interpretation renders the Ninth Amendment entirely unenforcable and moot, which is clearly contrary to its original intent. However, this is a criticism of specific originalists—and a criticism that they are insufficiently originalist — not a criticism of originalism. The theory of originalism as a whole is entirely compatible with the Ninth Amendment. Alternative theories of originalism have been argued by Randy Barnett that give the Ninth Amendment more practical effect than many other schools of legal thought do.
• Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is there any requirement that they have to. There is room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Usually, that is easy to discern and simple to apply. Sometimes there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment of the U.S. constitution guarantee of "the freedom of speech" apply to new technologies that did not exist when the guarantee was codified - to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires, and that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them.
• If the people come to believe that the constitution is not a text like other texts; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they elect to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the constitution ought to be. If the courts are free to write the constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This suggests the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.