Faith, Beer, and Other Things That Interest Geoff

Edward Whelan Discusses How the New Yorker Doesn't Understand Constitutional Originalism

As the battle over the judiciary escalates, the media continue to describe Supreme Court rulings in the binary liberal-versus-conservative lexicon of American politics — i.e., as victories or losses for liberals or conservatives. But this results-oriented political lexicon obscures the deeper question of American political philosophy at stake: whether the unconstrained role that the Supreme Court has defined for itself in creating new constitutional rights can be reconciled with the core tenets of our constitutional republic. This is, of course, a question that the Left, as the overwhelming beneficiary of the Supreme Court's rights-invention, is not eager to highlight. Evidently acting on the premise that the best defense is a good offense, legal academics and their allies in the media have instead attacked and caricatured "originalism" — the traditional, common-sense understanding that the current meaning of the Constitution and of other laws is to be determined in accordance with their meaning at the time that they were promulgated.

Conservatives promote originalism because of our beliefs. Not because we want to judges to be the conservative mirror to liberal judicial activists.

"Although proponents of originalism claim that it is a politically neutral method, in Scalia's hands it usually leads to conservative results — at least on social issues like abortion, capital punishment, and gay rights."

What Talbot evidently does not comprehend is that on each of these "social issues" Justice Scalia's understanding of the Constitution binds him as a jurist to defer to whatever laws the people might adopt — including, for example, fully funded abortion through all nine months of pregnancy, the abolition of capital punishment, and the redefinition of marriage to encompass same-sex couples.

Stated somewhat differently, if Justice Scalia were in fact to read into the Constitution his own (presumed) substantive views on abortion, he would conclude that permissive abortion laws were themselves unconstitutional. Likewise, he would conclude that legislators could not abolish capital punishment and could not create same-sex marriage. His clear rejection of these positions demonstrates that on these issues Justice Scalia's originalism is in fact politically neutral. In other words, originalism will lead to "conservative results" on these issues only if, and to the extent that, elected legislators enact conservative positions into law. Conversely, originalism will lead to liberal results when elected legislators enact liberal laws. And, of course, the free play that originalism gives to the political process on these issues will allow the electorate the flexibility to change its collective position over time.