The Strengths and Weaknesses of Originalism

Introduction

Originalism is one of several judicial theories used to interpret the Constitution and further analysis of this theory will help for a better understanding of decisions made by justices such as the late Justice Scalia and current Justice Thomas. Originalism is

What is Originalism?

Originalist as Cass R. Sunstein refers to as fundamentalist in his book, Radicals in Robes Why Extreme Right-Wing Courts Are Wrong for America, "believe that the Constitution must be interpreted according to the 'original understanding'".

Perfectionism is

fundamentalism, which tries to interpret constitutional provisions to fit with how they were understood at the time of ratification.

Perfectionism, long favored by liberals, is rejected on the ground that it would cede excessive power to judges. Fundamentalism, now favored by some conservatives, is rejected on the ground that it would radically destabilize our rights and our institutions (and also run into historical and conceptual muddles).

They take the text at face value and apply it, as they understand it, quite rigorously and consistently

The Strengths or Originalism

A. Limited Governance

Perfectionist constitutional interpretation goes against the conventions of democracy that are instilled by the very work they are trying to protect. Perfectionism relies on the theory that judges should "interpret the Constitution to make it the best that it can be." However, this theory is very problematic because although they believe they are extending democratic principles they are in fact legislating from the bench, which is not in their constitutional authority and is a power that is delegated to the legislative branch. Originalist believe in separation of powers and that originalist constitutional interpretation will reduce the likelihood of unelected judges taking the power of those who are elected by the people, the legislature.

The separation of powers is a model for the governance of a state. Under this model, a state's government is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches

"The history of American constitutional law is, at least in a part, the history of 'precedents that evolve, shaped by nations of fairness and good policy' that inevitably reflect the modern milieu of the judges."

B. Non-originalism allows for judges to impose their subjective values into decisions.

In the case of perfectionism, perfectionist judges are permitted to "read the Constitution in a way that fits with their own moral and political commitments".

C. Originalism ensures clarity

Originalism ensures clarity by reducing the judge's ability to shift with political winds.

The Flaws of Originalism

A. Incomplete Theorized Agreements

B. The Unconscious Mind vs. History

"A sad fact nonetheless lies at originalism's heart. For all its, virtues, originalism has failed to deliver on its promise of restraint. Activism still characterizes many a judicial decision, and originalist judges have been among the worst offenders. They may sincerely strive to discover and apply the Constitution's original understanding, but somehow personal preferences and original understandings seemingly manage to converge. The fault lies with the theory itself. Originalism, like nay constitutional theory, is incapable of constraining judges on its own. And instead of recognizing this flaw, originalism provides cover for significant judicial misadventures. The result is too often a new breed of judicial activism masquerading as humble obedience to the Constitution."

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