WHY ORIGINALISM
By Clint Bolick, Arizona Supreme Court Justice . His opinions can be found at azjustice44.com.
In this week’s Constitutional Conversations post, Arizona Supreme Court Justice Clint Bolick offers his explanation of originalism, and his observation that, with all its “flaws and shortcomings,” it remains the surest way to sustain the rule of constitutional law in the United States.
Whenever I defend originalism, sage observations from two of the greatest British political leaders come to mind.
Winston Churchill once quipped that “[d]emocracy is the worst form of government, except for all the others.” So too is it with originalism as a method of constitutional interpretation: it has flaws and shortcomings, but nothing compared to other methods.
Relatedly, Margaret Thatcher defended her controversial polices with the acronym “TINA”: there is no alternative. Read any critique of originalism and you’ll find plenty of pejoratives and straw-man arguments, but never a cogent, principled alternative method of constitutional interpretation. Because there isn’t one.
Originalism is simply the belief that a constitution should be interpreted according to its original meaning, applied to contemporary circumstances. Within originalism are different schools of thought. Like the late Justice Antonin Scalia, I am a textualist, which means that I strive to discern and enforce the original public meaning of a constitution’s words. Most of the current U.S. Supreme Court majority focus instead on history and tradition to determine constitutional meaning. But all originalists believe that judges cannot change original constitutional meaning.
By contrast, originalism’s critics all espouse a form of philosopher-kingism: that judges have the power and duty to “evolve” constitutional meaning to meet contemporary realities and needs. Except, of course, when the outcomes differ from the critics’ own policy preferences, in which case the judges are acting in a “partisan” or “political” fashion.
Originalism is compelled by our oath as judges and by separation of powers. As judges, we swear to enforce the Constitution. Every constitution contains methods of amendment, and they are typically difficult. Nowhere have I ever seen a provision allowing constitutional amendment by judicial fiat.
Indeed, such judgments are not and cannot be law. As the belatedly revered Alexander Hamilton observed in The Federalist No. 78, the judiciary is an excellent barrier against the encroachments of the political branches of government; but it would become a danger if ever it exercised the powers assigned to the other branches. Yet advocates of “living constitutionalism” demand exactly that: a judiciary that usurps powers assigned exclusively to the legislative branch, the states, and as to many state constitutions, the people themselves.
Many court decisions illustrate this propensity, but perhaps none better than the infamous Kelo v. City of New London decision in 2005. In that case, the city wanted to use its eminent domain power to bulldoze a working-class neighborhood to make way for amenities for a Pfizer plant. Standing in its way were the words of the Fifth Amendment, which limit property takings to “public use.” But the Supreme Court’s 5-4 living-constitutionalist majority found those words too inflexible in light of the modern needs of government, and rewrote them into a much more elastic “public benefit” requirement. The taking was upheld, the neighborhood was demolished—and the amenities were never built.
So too in 1965 did the Court recognize a right to privacy in the federal constitution. I believe that the Constitution protects a common law right to privacy through the original meaning of the Ninth Amendment and the 14th Amendment’s privileges or immunities clause. (Justice Arthur Goldberg’s concurrence was rooted in the Ninth Amendment, which lamentably disappeared from federal jurisprudence.) But Justice William O. Douglas, perhaps feeling unduly constrained, instead discovered the right in “penumbras, flowing from emanations” of other constitutional provisions. In other words, instead of a privacy right based on and bounded by law, Douglas fashioned a right from intellectual quicksand that he and other living constitutionalists could mold as they liked.
And mold it they did. The newly fashioned privacy right—combined with the oxymoronic doctrine of “substantive due process” that was created by a conservative Court in the early 1900s—was wielded eight years later in Roe v. Wade not only to recognize a right to abortion, but to dictate a highly prescriptive trimester regime that greatly resembled judicial legislation, which courts are not supposed to do.
Perhaps the most scathing critique of Roe’s methodology came from pioneering women’s rights litigator and later Supreme Court justice Ruth Bader Ginsburg. She would have rooted a right to abortion in the equal protection guarantee—in other words, in constitutional text. “Doctrinal limbs too swiftly shaped,” she presciently warned, “may prove unstable.” She also criticized the Court for “fashion[ing] a regime blanketing the subject,” thereby inviting backlash and “stop[ping] the momentum on the side of change.” Interpretative methodology matters greatly; and whether one supports or opposes a constitutional right to abortion, Roe’s utilitarian approach clearly sowed the seeds of its own undoing.
For those who believe in a rule of law whose foundation is neutral principles, we should applaud that unlike living constitutionalist judges, who always seem to produce the outcomes they personally desire, originalist judges often vote against their personal policy preferences. Indeed, then-Supreme Court nominee Neil Gorsuch spoke for all true originalists when he remarked that a judge who agrees with all of his or her opinions is probably not a good judge. In that regard I think of Justice Scalia, probably one of the most fervently patriotic judges of all time, yet who provided the decisive vote in Texas v. Johnson that determined flag burning was protected speech.
That doesn’t mean that originalists do not have good faith disagreements—witness the District of Columbia v. Heller gun-rights case, where the majority and dissent both made compelling originalist arguments—or that originalist judges are immune from making decisions that reflect their own values rather than neutral principles. But originalist judges, whatever their politics, always attempt to subordinate their personal values to constitutional meaning, and they understand to their core that the rule of law depends on judges doing so.
Originalism is always a target, especially among academic elites, precisely because it has substance; and substance, as opposed to inchoate abstraction, is always easy to attack. But that substance also ensures that originalism will continue to dominate judicial methodology. Because, TINA.