Supreme Imbalance: Why Originalism and Conservative Activism Are Wrong

05/25/2011 12:15 pm ET
  • Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago

In earlier posts in this "Supreme Imbalance" series, I identified four approaches to constitutional interpretation - judicial passivism, originalism, conservative activism, and liberalism. In my last post, I considered and rejected one of those approaches - judicial passivism. In this post, I will evaluate (and reject) originalism and conservative activism.

"Originalism" purports to respect the intent of the Framers. But it has gained no credibility over the past quarter-century, despite the earnest efforts of its proponents, in part because it does precisely the opposite. The central premise of originalism is that courts should hold nothing unconstitutional that the Framers themselves did not intend to hold unconstitutional. But this conception of constitutional law fundamentally misreads the intent of the Framers. It assumes that the Framers intended to limit the effect of the Constitution to only those outcomes that they themselves consciously expected and intended.

But in drafting the Constitution, the Framers were not enacting a series of specific and predetermined rules. "Congress shall make no law" prohibiting the "free exercise" of religion or abridging "the freedom of speech," No person shall "be deprived of life, liberty, or property, without due process of law," and no person shall be subjected to "cruel and unusual punishment" were not designed as crabbed, narrow ordinances like speed limits. Rather, they were intended to serve as open-ended aspirations that would gain meaning and vitality over time.

As men of the Enlightenment, the Framers conceived of rights as inherent in nature and "founded on the immutable maxims of reason and justice." They understood them much as they understood the laws of science. That is, just as they knew that they did not know all there was to know about biology and physics, so too did they know that they did not know all there was to know about their rights. Just as reason, observation and experience would enable man to gain more insight into philosophy, science, and human nature, so too would they enable him to learn more over time about man's "inalienable rights," which would have to be distilled from experience, reason and justice.

With this mindset, the notion that any particular moment's conception of rights should be taken as exhaustive would have seemed patently wrong-headed to the Framers, just as it would have seemed wrong-headed to them for anyone to assume that their knowledge of the human body or of the universe should be taken as final and conclusive. Such a conception was antithetical to the very core of Enlightenment thought and to everything the Framers stood for.

They were not timid men. They were bold. As the Harvard historian Bernard Bailyn has observed, they knew full well that the rights they had identified did not "exhaust the great treasury of human rights." They knew that their understanding of these freedoms "marked out the minimum not the maximum boundaries" of man's inalienable rights.

The "preservation of liberty," they knew, "would continue to be what it had been in the past, a bitter struggle with adversity," which would demand constant vigilance both to protect the rights they had recognized and to be alert to the recognition of new rights yet to be discovered.

The narrow, frightened originalism of Clarence Thomas and Antonin Scalia would have seemed absurd to the Framers. As a constitutional methodology, it not only invites the manipulative and result-oriented use of history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution.

This brings me to third conservative methodology -- "conservative activism," which sounds like an oxymoron, as it should. But it is in fact the dominant form of jurisprudence on the Supreme Court today. It is conservative activism that explains the Court's decisions invalidating regulations of commercial advertising, invalidating campaign finance regulations, invalidating affirmative action programs, invalidating the use of race to promote integration, invalidating zoning laws, invalidating laws prohibiting the Boy Scouts from discriminating against gays and lesbians, and invalidating federal laws dealing with the environment, handguns, domestic violence, and age discrimination.

Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities, not in order to protect the rights of minorities, or the powerless, or the oppressed, or the disenfranchised, or the dispossessed, or the poor, or the downtrodden, or the accused, but in order to protect the interests of corporations, the wealthy, the privileged, the majority, and the powerful. Like the Lochner era of which it is the constitutional and moral descendent, modern-day conservative judicial activism is a perversion of the values that the Constitution was designed to protect and, more specifically, of the values the Framers relied upon the Court to protect.

This is the fifth in a series of six posts on the make-up and direction of the Supreme Court.