Originalism and the Supreme Court

by

 

       M. Richard Maxson

 

      Originalism is not some competing theory of fairly recent origin, or even of 19^th century origin. It has been the dominant method of documentary interpretation in our legal system—and a central feature of the rule of law—for at least five centuries. Anglo-American courts had been applying originalist methodology for centuries. Specifically, the “intent of the makers” had been the lodestar of documentary construction since at least the 1500s. In 1782, the Virginia Supreme Court of Appeals decided Commonwealth v. Caton. It applied originalist methods to the Virginia constitution, with judges referring repeatedly to the “makers of the constitution” and what was “intended by the framers.” That is how it was

intended to be.

     In recent history we see something different, judges ruling, not what the Constitution says, but what “they believe” society wants. It has created precedents that are contrary to the wishes of the Founding Fathers. That's the doctrine that a court should "rule" the same way a previous court did, even if the judges in the 2nd court feel the first one violated the constitution. It created "stare decisis" which is the legal principle of determining points in litigation according to precedent. It is precedent over the Constitution itself.

      “Legislating from the bench.” It's a common complaint today and a dangerously common practice. But it was never intended to be that way."The despotism of an oligarchy," that's how Thomas Jefferson described and warned about the federal court system we live under today. Sometimes the Constitution’s attempt to address an issue is phrased in a way that could allow multiple interpretations, leaving experts disagreeing about what it means and making it difficult or impossible to address a pressing problem which is why adherence to originalism is paramount. Founder after Founder hammered this home.

 

• Rufus King: "The judges must interpret the laws; they ought not to be legislators."

• Nathaniel Gorham saw no “advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.”

• Charles Pinckney also “opposed the interference of the Judges in the Legislative business.”

• Roger Sherman “disapproved of Judges meddling in politics and parties.”

       The question arises only because at some point in time, the Supreme Court abandoned originalism, and prior originalist precedents, and came up with new law altogether. When precisely this happened is beside the point; it surely happened at different times for different doctrines. The point is, once the Supreme Court decided to change the law, the Supreme Court began to reaffirm its changes. These new legal decisions were now “precedents,” but they were unlike the older precedents in that they were outside the bounds of permissible textual interpretation. This doctrine treats an opinion of the court like super statutes, their language to be parsed and applied  as though it was legislation.

 

       The root of the problem is that so many people have embraced this absurd system that empowers judges to run their lives. As a result, many will view this SCOTUS appointment as very nearly a matter of life and death.

        In the end, to most Americans, there is nothing more significant than who sits on the Supreme Court. Politics aside, the Supreme Court and ALL courts need to follow the Constitution as it was intended…..and they don’t…..and that reveals a big problem for the Republic.