Where Activism Ought to Stop
Brett Kavanagh’s recent confirmation as the newest Associate Justice of the United States Supreme Court highlighted an important schism in the American body politic. Roughly half of the nation sees Kavanaugh as another tool for the accomplishment of a conservative agenda, while the other half braces for the nightmare of a Republican-dominated Congress, a problematic chief executive, and a conservative-leaning Court. I will argue that the way each side views the Court—as a powerful interpretive body that ought to allow the context of the “now” to inform the reading of the Constitution—is not only fundamentally mistaken, but also largely responsible for the uproarious response that the nomination of a new Supreme Court Justice elicits. The solution I endorse in this piece involves not more “liberal” or more “conservative” justices; to the contrary, appointing constitutional originalists to the Supreme Court restores the Court to its rightful place in our constitutional republic, thereby removing the Court from the hyper-partisan battleground on which the rest of politics is conducted.
Before addressing the conversation that ensued following Kavanaugh’s nomination, it’s wise to define constitutional originalism. The term “originalism” was coined in the 1980s by Paul Brest in The Misconceived Quest for Original Meaning, and gained more widespread notoriety during the late Justice Antonin Scalia’s tenure on the Court. At its core, originalism is a legal philosophy that holds the Constitution ought to be interpreted in accordance with the original public meaning of the document at the time of its ratification. Critically, this approach does not entail that the nine justices today try to “read the minds” of the Founders or the U.S. citizens that voted to ratify the Constitution. Instead, it simply requires that the nine justices recognize that the Founders wrote the Constitution down, choosing the words carefully, and that the subsequent ratification is properly understood as a collective agreement to be governed in a particular manner. Originalism can alternatively be conceived of as a legal philosophy that respects the democratic agreement that was made in 1789; like any democratically agreed-upon measure, the decision is respected until a similarly democratic process makes an alteration.
The judiciary’s rather straightforward role of simply adjudicating legal disputes—as opposed to the sort of judicial activism in which the Supreme Court has frequently engaged—is explicitly described in Hamilton’s Federalist No. 78. Two quotations in particular do much to support an originalist interpretation of the Constitution. First, Hamilton leaves little up for interpretation regarding the relative influence of the courts when he says that “the judiciary is next to nothing” compared to the legislature and the executive. Today, one may favor the Court as an avenue for change because of the relative dysfunctionality of Congress and unpredictability of the executive, but relative ineptitude does not confer undue powers to the judiciary. For the Founders, power ought to be correlated with the democratic tendencies of the branches of government. In the newly created federalist system; the Judiciary was “next to nothing” because the Justices were elected and appointed for life. Further supporting the claim that the Founders never intended the Supreme Court to be a powerful activist body, Hamilton declares in the same Federalist Paper that the judiciary will have “neither force nor will, but merely judgement.” What lacks both force and will would seem also to lack the means to substantially reinterpret the Constitution each time a novel idea presents itself to the court.
At this point, a well-intentioned reader may invoke one or both of the following counterarguments. First, is not the Constitution’s brevity a tacit hint that the founding document is meant to be but a guide, necessitating a more detailed and time-sensitive legal analysis in order to deal with contemporary policy issues? Or, in rare times of great national disagreement over such fundamental rights as same-sex marriage, in an era of unprecedented Congressional gridlock and presidential unpredictability from administration to administration, should not the Supreme Court intervene and provide a definitive answer? Those who bring these counter-arguments may be called “living constitutionalists,” as they believe the Constitution ought to be loosely interpreted so as to address issues of modernity with greater precision.
Many a constitutional originalist shares the concerns of the hypothetical living constitutionalist described above; concerns regarding American progress and the protection of fundamental rights, especially those of minority groups, are shared by both ideological camps. Originalists, however, are simply unwilling to grant more power to the judiciary than the Constitution calls for, and fear that normalizing the Supreme Court’s “emergency” ruling actually worsens the democratic atrophy the above living constitutionalist addresses. Let us finish this discussion further analyzing this line of argument, as it most directly addresses the climate surrounding the Supreme Court in the wake of the Kavanaugh’s confirmation.
The living constitutionalist’s argument that the Constitution’s brevity allows each generation after ratification to progress unencumbered by an aging document is correct in a very limited sense. The Founders crafted a brief Constitution because they knew that they could not possibly predict the troubles that awaited future generations. The Founders were exemplary political scientists and statesmen insofar as they knew they were not nearly wise enough to legislate posterity for centuries to come. Where originalism radically differs from living constitutionalism lies in how the former considers the Constitution’s brevity to be compelling evidence in favor of the sanctity of the words themselves, the latter, proof that the Founders never intended the document to have a strong influence on modern affairs.
Of paramount importance, however, is the fact that the Bill of Rights and Civil Rights Era amendments say not what the citizens may do, but rather, what the government may not do. This is to say that nearly anything that the Constitution does not expressly prohibit can be legislated, regulated, incentivized, banned, etc. through democratic means. Consider the 2015 case of Obergefell v. Hodges, which legalized same-sex marriage nationally. Justice Scalia’s dissent in that case is infamous, for it so astutely endorses an originalist interpretation of the constitution, while enraging, quite understandably, proponents of extending marriage benefits to same-sex couples. In his dissent, Scalia states that one’s personal opinion regarding same-sex couples is of no import when it comes to constitutional interpretation; what is important, instead, is the process through which same-sex marriage is legalized. It is undeniable that same-sex marriage is not mentioned in the Constitution. In other words, one does not have an inherent right to have a state-recognized same sex marriage in the way that one is entitled to unequivocal freedom of expression. Perhaps most recognized—and it is worth quoting in full—is Scalia’s statement regarding the outcome of the Hodges decision: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Scalia’s view is undeniably controversial. In fact, it can be convincingly argued that except for religious convictions held by a minority of Americans, there is simply no good argument against nationally recognized same-sex marriage. The example of same-sex marriage, by default, may offend some; but the rationale behind delegating the regulation of marriage to individual states transcends partisan politics. In fact, the use of the Court to legalize same-sex marriage, is, whether expressly recognized or not, one of the main reasons why Kavanaugh’s appointment was as dramatic as it was. Even those inclined to refrain from a full-throated condemnation of Kavanaugh’s character based on a perceived insufficiency of evidence may still fear that Kavanaugh’s appointment jeopardizes the right to an abortion per Roe v. Wade or suggests an impending move towards stricter curtailment of immigrant immunities.
By focusing only on the Obergefell ruling, I do not mean to portray the Supreme Court’s activism as unique to its liberal justices. In advocating for originalism, I do not intend to advance a socially conservative agenda. Socially conservative activism is just as facially incompatible with originalism as the liberal activism observed in the Obergefell ruling. For instance, the famed originalist Justice Antonin Scalia’s opinion in the 2005 case Raich v. Gonzales supports the federal government’s criminalization of medicinal marijuana, even in states that have legalized the plant for medicinal uses. Here, Scalia endorses the very same logic that he rejected with regard to Obergefell! Namely, that what the Constitution does not mention (e.g., marijuana) is rightfully dealt with on a state-by-state basis.
Perhaps social conservatives support a strong, national ban on marijuana, but this conservative “victory” tramples on the idea of enumerated powers. Quoting Justice Clarence Thomas’s opinion is useful here: “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the federal government are "few and defined," while those of the states are "numerous and indefinite." Taken together, Obergefell and Gonzalez demonstrate that the attempt to apply the Constitution according to the political needs of the present day is fallacious, and that we should instead ascertain and apply the document’s words according to their original public meaning.
That so many fear that the appointment of a single justice will substantially change what is considered a right indicates a serious departure from the role the Founders envisioned the judiciary would fill. Through examining the case of Obergefell v. Hodges and the fear surrounding a reversal of Roe v. Wade and other cases dealing with historically marginalized groups, one sees that both the Right and the Left can be offended by the Supreme Court’s nationally impactful rulings. As such, the antidote to the rancor infusing our national discussion over the Court cannot entail appointing more justices of a particular political persuasion to the highest court; the Supreme Court is inherently undemocratic, and thus should exercise only its discretionary power to apply the words of the Constitution, not its “spirit.” We have acquired a zero-sum mentality with respect to the Court, embracing the belief that having the “correct” political party in control of the Supreme Court ensures prosperity, while a shift towards the other political pole runs the risk of utter ruin.We should fear that the prevalence of this mentality is indicative of citizens and elected representatives shirking their civic responsibilities to govern themselves.
Democracy does not always yield entirely desirable results; perhaps a nation wherein some states withhold certain privileges from same sex couples is such an example. But in exchange for what one hopes is a more just nation, one cedes yet even more of one’s democratic power to an undemocratic body. With lobbyists influencing elected officials, executive action becoming a common practice for the President, and unelected, so-called experts “giving teeth” to nearly every piece of legislation, one wonders why many Americans support an activist Court. Even more worryingly, one wonders to what extent Americans are still dedicated to the idea of democratic self-governance.
(Overhead picture: a portrait of Justice Antonin Scalia by Nelson Shanks, collection of the Supreme Court of the United States.)