Constitutional Originalism Versus Judicial Activism: The Judges Speak


courtroom, benches, seats

Amy Coney Barrett was just appointed as the Supreme Court Justice to replace the late Ruth Bader Ginsberg. You likely know that this changes everything, but why? What do originalists believe, and how is it different from the “living document” approach favored by Ginsberg?

I had a conversation on the topic via Facebook with a friend who was puzzled to see a female judge subscribing to an originalist view of the United States Constitution, and I thought you might like to join our exploration of the topic.

What is Originalism?

An originalist believes that a document should be taken for face value, as it would have been understood by the people living in the time and space where the document was written.

Amy Coney Barrett (hereafter referred to as ACB) interprets the Constitution literally, based on the words on the page. Ruth Bader Ginsberg (RBG) funneled the words through her understanding of current issues, making the document much more malleable.

The Contrast With Judicial Activism

Here’s what ACB thinks about the Constitution, quoted from her acceptance speech when she was sworn in as the next Supreme Court Justice:

It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy roles aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them.

In contrast, RBG said:

I see my advocacy as part of an effort to make the equality principle everything the founders would have wanted it to be if they weren’t held back by the society in which they lived and particularly the shame of slavery. I don’t think my efforts would have succeeded had it not been for the women’s movement that was reviving in the United States and more or less all over the world at the time.

Put simply, judicial activists feel they have a right to edit the Constitution to fit their own ideas and the time in which we live. Originalists feel they need to stick to the written words as the writers intended them.

This is not to say that the Constitution cannot be edited. In fact, provision was made for editing the Constitution by the legislature. That is the crux of the matter.

Congress has the authority to amend the Constitution because it is composed of people who were elected for the purpose of writing laws. Listen to ACB’s take on this:

Federal judges do not stand for election. They have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government.

In choosing an originalist, Trump has given both sides a win. The left has lost its ability to change the Constitution to fit its goals, but the right has NOT gained the ability to change the Constitution. Originalists don’t do that.

A judge declares independence, not only from Congress and the President, but also from the private belief that might otherwise move her. The judicial oath captures the essence of the judicial duty. The rule of law must always control.

My fellow Americans, even though we judges don’t face election, we still work for you. It is your Constitution that establishes the rule of law and the judicial independence that is so central to it. (ACB)

What the Most Recent Justices Have Said About the Constitution

Let’s hear from the current Supreme Court Justices, plus Antonin Scalia, who died in 2016:

Antonin Scalia:

The judge who always likes the results he reaches is a bad judge.”

Brett Kavanaugh:

In our constitutional system, a judge must be independent, must keep an open mind in every case and must decide cases based on the facts and the law, not based on personal or policy views.

Neil Gorsuch:

Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.

Clarence Thomas:

The job of a judge is to figure out what the law says, not what he wants it to say. There is a difference between the role of a judge and that of a policy maker… Judging requires a certain impartiality.

Samuel Alito:

A judge can’t have any agenda. A judge can’t have a preferred outcome in any particular case.

Let’s head toward the other side now, where precedent is more highly regarded, and judges filter the law through their own lenses:

Chief Justice John Roberts:

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

Stephen Breyer:

Independence means you decide according to the law and the facts.

Sonia Sotomayor:

Personal experiences affect the facts that judges choose to see.

Elena Kagan:

Perhaps most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.

Did the Founders of the Constitution Want Us to Be So Literal?

Fortunately for us, the people who wrote the Constitution left behind a great deal of documentation to let us see what they actually intended when they wrote it.

The Father of the Constitution, who had the most influence on its ideas and its wording, was James Madison, who later became the fourth President of the United States.

Alexander Hamilton was a delegate at the Constitutional Convention and later became the first Secretary of the Treasury for the United States.

John Jay was not a delegate to the Constitutional Convention but did attend the First Continental Congress, which predated the Constitutional Convention, and was President of the Continental Congress in 1778.

He was a member of the New York Constitutional Convention. Later he was the first Chief Justice of the Supreme Court.

Madison, Hamilton, and Jay collaborated under the pen name “Publius” to explain the proposed new Constitution to the people of New York in a series of 85 long and detailed letters to the editors of New York papers.

Because of them, we know exactly what the founders meant when they wrote the Constitution. See the full text of the Federalist Papers at guides.loc.gov.

In Federalist Paper #78 Hamilton explains that the judiciary was intended to have a less influential role than it has today:

[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them…It may truly be said to have neither FORCE nor WILL, but merely judgment.

Hamilton did not intend to assign any enforcement or legislative role to the Supreme Court:

[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

Hamilton wanted the Supreme Court to remain faithful to the text of the Constitution:

 The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law…the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

But Haven’t There Been Changes Over the Years?

Changes to the Constitution are accomplished with amendments, which formally change the text to meet the challenges of the current day. The Constitution itself makes provision for these changes in Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

This is an arduous process by design, so that changes are not made lightly without knowing the will of the people. The wheels of government turn slowly to avoid crushing the will of the people. See the full text of the Constitution at the National Constitution Center.

Modern Objections to Originalism

Here are the objections my friend raised, and my answers.

Objection: I agree the supreme court shouldn’t create laws. But don’t you find it ironic to to have a female supreme court justice who claims to be an originalist?

My Answer: No. Females have brains and opinions independent of your conceptions of what they should think.

Objection: Agreed! So why do you support her then? She doesn’t believe in a living constitution.

My Answer: What makes you think the Constitution changes? It is the standard by which laws are judged.

Objection: Amendments, now it is acceptable to white men to have a woman supreme court justice, black men and women have equal right to vote, you are allowed to keep your guns even though you are not in the military, the term “press” now extends to private citizens in print, internet, TV (modern inventions that weren’t even conceived 200+ years ago), etc.

Originalists can’t have it both ways. The mere fact that she is being considered to be appointed to the supreme court shows that originalism has its limitations.

The men who wrote the constitution didn’t consider women or non-white males to be equal citizens. Society changed, thank goodness!, and so does the standard by which laws are judged.

My Answer: I just reread the whole document for your sake. Nothing about having to be male or white to be elected or appointed to any office. Some state Constitutions had those restrictions but the US Constitution did not.

The Bill of Rights was passed before the Constitution went into effect, and guaranteed that your right to bear arms “shall not be infringed.” Boy, is that being infringed!

Amendments are fine, because they come from the Congress, which is the legislative arm of the government. Judges decide whether the law is faithful to the Constitution, not whether it meets their personal standards. That is the system of checks and balances that keeps one branch from overpowering the other two.

Objection: Even Scalia wouldn’t use a dictionary newer than Webster’s 2nd edition. If you claim you’re from an originalist theory, then you have to read the constitution based on the speech of 1700s.

At that time women were considered property of their father’s or husband’s. The mere fact that the 13th and 19th amendments exist says that originalism is archaic. If the standards by which laws are judged didn’t change with modern times, women and non-white males would still be considered second class citizens, like it was in the 1700s.

I wouldn’t be able to own my own house, have a credit card, deserve equal pay for equal work, etc. On the issue of “bear arms”, again that changed with modern times, from bow and arrow and musket to semiautomatic, automatic, ARs, and hand guns.

Originalists can’t have it both ways. If they want to interpret the constitution based on the language used in the constitution when it was originally written, then stick to the original words. Use your bow and arrows and muskets. Modern advances in weaponry shouldn’t be allowed, according to originalism.

However, they are, per the supreme court. Therefore, modern standards of society have influenced how laws are judged. In regards about checks and balances, that’s a bit of a laugh.

Executive orders, presidential pardons, the existence of a two party system of government, career politicians, etc.

To name a few reasons why that theory is archaic, too. Good system in theory but not in practice when not done properly.

My Answer: By your logic, every new technology needs a new clause in the Constitution. I shouldn’t have free speech on my cell phone because the Founders did not imagine cell phones.

Congress cannot regulate interstate traffic done in cars but should only regulate horse drawn conveyances. That is too limiting.

The speech of the 18th century is not really all that different. I have read the 85 Federalist Papers written by John Jay, James Madison and Alexander Hamilton when I researched the Constitution and I understood them just fine. In fact, I recommend you read them. They are easy to find on the internet.

The Constitution does not set the standards for voting. It allows the states to use their standards until you get to the Amendments that specifically allow voting for women and minorities.

And this nonsense about modern weapons not being foreseen? “Arms” means weapons, then and now. We have the right to defend ourselves against tyranny because our Founders had just liberated themselves from the King of England.

They set up a system that would allow us to have a way out if the government became too oppressive.

And the executive orders are way out of control. Obama’s threat to write his own laws was shameful.

Washington, by the way, agreed with you on the problem with political parties. He wanted people to vote on individual issues, not popular groups like we have today.

Democrats and Republicans now are embarrassingly similar.

They say they want different things but we get the same things from both parties.

Except Trump. The Washington establishment hates him because he actually does what he promises.

The Bottom Line

Senator Ted Cruz, whose name has been offered for a seat on the Supreme Court when the next opening occurs, said this:

You want to know what judicial activism is? Judicial activism is judges imposing their policy preferences on the words of the Constitution.

Originalism preserves the integrity of the Constitution by keeping the Supreme Court from becoming an extension of the legislative branch of the government.

Constitutional amendments have their place, because each generation does face new challenges. When it is time for the next amendment, Congress can use the system already in place to make the needed changes.

ACB has promised to be faithful to the text of the Constitution. I leave you with the conclusion to her speech:

The oath that I have solemnly taken tonight means, at its core, that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences. I love the Constitution and the democratic republic that it establishes and I will devote myself to preserving it.

Keep reading my blog for more helpful information on your Constitutional rights.

Use our coupon code “double10” to get 10% off your first purchase with these online retailers:

Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

Recent Posts