The originality of originalism
Conservative commentator Ramesh Ponnuru has an interesting take on judicial activism in today’s New York Times. According to Ponnuru, conservatives have become caught between identity politics and judicial activism, essentially advocating in favor of activism when it thwarts identity politics. Writes Ponnuru:
Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.
The Voting Rights Act decision was a case in point. Eight justices avoided weighing in on the constitutionality of the law’s requirement that certain jurisdictions, mostly in the South, get Justice Department permission before making any changes to election procedures. Instead they ruled that a utility district in Texas that wanted to be freed from the provision should have an opportunity to try.
But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed.
Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment.
What I have always found curious about originalism is that it’s an approach to historical texts somewhat opposite to one prominent view in academic circles. Led by Cambridge scholar Quentin Skinner, many intellectual historians have disposed of the idea that historical documents — even constitutions — have any significant meaning outside of their immediate social and political contexts. (An interesting interview with Skinner that addresses some of these issues can be found here).
This is to go further than even many non-originalists, who would say that the Constitution is a living document. Instead, it is to say, as would originalists, that the Constitution is fixed. But it is to then add further that the Constitution — being fixed — is no longer relevant to our present circumstances. That is a conclusion some originalists mind well find profane.
–Sam
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- First principles and the court
- Is judicial activism a red herring?
- From the source
- How should we pick judges?
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