The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but also to establish the foundational principles that would sustain and guide the new nation into an uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: "freedom of speech," "due process of law," "free exercise" of religion, "equal protection of the laws." The Constitution sets forth governmental powers in similarly general terms: Congress may regulate "commerce . . . among the several states," the president will "take care that the laws be faithfully executed," the courts are authorized to decide "cases" and "controversies."
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs."
For the last half-century, conservatives have argued that the Supreme Court went too far in the 1950s and '60s in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. They condemned what they derided as the "judicial activism" reflected in Warren Court decisions requiring one person/one vote, protecting the rights of people suspected of crime, holding unconstitutional laws forbidding mixed-race marriages, and prohibiting state-sponsored school prayer. They therefore demanded the appointment of judges committed to judicial restraint. But although judicial restraint is surely appropriate in appropriate circumstances, its sweeping, reflexive invocation would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and therefore undermine a critical element of the American constitutional system. As Alexander Hamilton observed in the Federalist Papers, constitutional protections and limitations can "be preserved in practice no other way than through the medium of courts of justice."
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, conservatives next came up with the theory of "originalism." First popularized in the 1980s, originalism presumes that courts should exercise judicial restraint unless the "original meaning" of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the "original meaning" of the clause.
Originalism is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of their specific meanings, it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today's conservative legal agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But the notion that any particular moment's understanding of the meaning of the Constitution's open-ended provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrongheaded to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.
We have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as "conservative activism." Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down restrictions on corporate political expenditures, laws regulating the sale and possession of handguns, affirmative-action programs, and the laws of Florida in the 2000 presidential election, are unmistakably using the power of judicial review in a highly selective manner that cannot credibly be justified by any principled theory of constitutional interpretation. Despite all of the conservative rhetoric about originalism, "strict construction," "judicial restraint," "applying rather than making the law," and "calling balls and strikes," this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
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