Two strands of originalism
Yesterday Han highlighted the differences between two versions of constitutional originalism. On the one side, are those like Justice Clarence Thomas who contend that fidelity to the constitution requires “rolling back the welfare state, repealing regulations, and perhaps even putting an end to progressive taxation.” In contrast, Justice Antonin Scalia adapts a more pragmatic approach, arguing that “upending post-1937 case law and reversing settled principles would prove extremely disruptive, both in the courts and society at large.”
Scalia’s position is, in many
respects, intuitively appealing. Such a drastic shift in constitutional interpretation would no doubt be “disruptive” to institutions and the lives of citizens. But, “this faint-hearted originalism” is also problematic in that it introduces a subjectivity that his theory prides itself on avoiding.
By focusing on the original meaning of the constitution, originalists seek to prevent judges from basing their decision on personal political beliefs and values. For example, the question of whether the death penalty is unconstitutional for
minors depends solely on the common understanding of cruel unusual punishment at the time the constitution was ratified, not any personal feelings about capital punishment.
But, if Scalia admits that sometimes “settled principles” should be respected, than he has to make subjective choices about when originalism should be applied. Certainly rolling back the welfare state would be disruptive to a society, but so to would overturning Roe v. Wade. There is no objective criterion for deciding when past precedent should be respected and when it can be ignored.
Perhaps Scalia is right that it would be too costly to remain faithful to originalism in all cases, but such a concession also undermines part of what makes the doctrine of originalism appealing in the first place.
Image by Flickr user stephen.makser under a Creative Commons Attribution License