Originalism

Robert VerBruggen at The American Spectator features an article on judicial conservatism and originalism. Excerpts:

A “conservative” judge is not one who always votes to uphold conservative laws and to strike down liberal ones. Rather, when observers call a judge “conservative,” they typically mean that he is to some degree an originalist. That is, he believes that laws have reasonably definite meanings, set by the words within them, and that these meanings do not change over time. Originalists do not believe that the Constitution is “living,” and most originalists agree that judges should avoid looking beyond the text of enacted laws, except to learn the context and meaning of the laws themselves.

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Adherents to the “Old Originalism,” such as Berger, had often focused on original intent: what the writers of a given law meant to do. The obvious counterargument was that it is impossible for us to read the minds of the dead—and even if we could, we might find that different drafters wanted different things from the same laws. In response, many originalists, including Scalia, began emphasizing laws’ original public meaning instead. The idea was that it didn’t matter what the Framers subjectively wanted; they passed laws made up of words, and at that time, those words had specific, objective meanings. One can ascertain these meanings by consulting contemporary writings, particularly dictionaries.

“The ‘New Originalism’ is much less interested in reining in the judiciary than in getting the Constitution right—even where the meaning of the Constitution would authorize greater judicial review, or constrain Congress or the president,” says Randy Barnett, a legal theory professor at Georgetown University and author of Restoring the Lost Constitution (Princeton University Press, 2005). For example, New Originalists often decry how Congress has used its right to “regulate commerce…among the several states” to justify just about any law it feels like passing—and also decry that the Court has let Congress get away with it.

The whole concept of the Constitution as a “living document” is a dangerous one. It allows activist judges and progressives to ignore whatthe Constitution actually says in favor of what they think it might have meant had it been written by contemporaries who share their political values. Interpreting the law based upon how you’d like it to be read instead of what it actually says is not a solid basis for a system of jurisprudence — it is a basis for a system or rulership by men who make such fiat decisions. We are a nation of law, not of men, and such a means of interpretation has no place in our country.

Read the whole article here.

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