by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Syracuse law professor Tara Helfman shares with Commentary magazine readers a thoughtful essay on the significance of Antonin Scalia’s departure from the U.S. Supreme Court. Helfman’s article features a succinct defense of the originalism Scalia championed.
The trouble, of course, is that judges may be tempted to construe the law not as it is, but as they wish it to be. The interpretive enterprise invites abuses of discretion, and so the manner in which judges decide cases is essential to preserving the separation of powers. “To avoid an arbitrary discretion in the courts,” Hamilton wrote, “it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
As a judicial philosophy, originalism seeks to bind judges to strict rules of interpretation. As a philosophy of government, it privileges the will of the people over the will of individual judges on the ground that there is no higher expression of the popular will than the text of the Constitution itself. To the originalist, this text should not be interpreted in light of changing times and changing circumstances. Rather, it should be interpreted in accordance with the original meaning of the text.
Originalism is committed to the proposition that the Constitution means what it says and says what it meant when it was written. The Constitution is neither a dead letter nor a living document. It is an enduring frame of government. It is the function of the judge to recover, interpret, and apply the original meaning of the text of the Constitution no matter what novel situations arise. This is no semantic game. It is an enterprise that cuts to the very essence of political legitimacy.
As Justice Scalia explained in Reading the Law,
Originalism is the only approach to text that is compatible with democracy. When government-adopted texts are given a new meaning, the law is changed; and changing a written law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators and (in the case of authorized prescriptions by the executive branch) elected executive officials and their delegates.
The approach is not perfect, but it offers something that no other interpretive approach can offer: a fixed criterion by which to interpret laws and judge cases.