Steven G. Calabresi, a law professor at Northwestern University and co-founder of the Federalist Society, argues in this WSJ op-ed article in favor of a strict originalist interpretation of the Constitution. That is, he contends that the only sure way to interpret the Constitution is to apply “the original public meaning that [it] had when [it was] enacted into law.”
“The belief that judges and justices should decide constitutional cases” based on original intent, laments Calabresi, “may seem so obvious that it should hardly need a name, let alone a defense.” He notes that people would go nuts if any court were to interpret “statutes, contracts, wills and even old Supreme Court opinions” based on any standard other than their original public meaning. He wonders how these documents are somehow held to a higher standard than the Constitution itself; the basic law upon which all of these others merit any standing at all.
Calabresi is not ignorant of arguments that modern interpretations of the Constitution should flex to reflect “evolving standards of decency that mark the progress of a maturing society.” However, he contends that doing so destroys the very authority upon which these interpretations are based. He writes, “Non-originalist judicial review severely distorts the allocation of powers that is central to the Constitution.”
Citing a great deal of whining that the Supreme Court failed to follow some earlier court precedents in recent rulings, Calabresi argues that the Constitution itself should always take precedent. He cites the clearly erroneous 1896 Plessy v. Ferguson ruling that upheld racial segregation. He says the court plainly ruled correctly in 1954 to overturn this long-standing precedent, despite the fact that no constitutional amendment to correct the ruling could have passed at that time.
Speaking of those that agree with originalist interpretation of the Constitution, Calabresi states, “We think the Constitution is enforced by the Madisonian system of checks and balances, of separation of powers, and of federalism. We do not think that the Supreme Court is some kind of Supreme Council of Ayatollahs that can do anything it wants to do on a 5-4 vote.”
If you don’t use original intent as the basis for interpreting a document or a law, what valid basis can be applied? All that is left is the personal philosophies of the judges and justices. Although they may cite various sources as pseudo backup, you end up with rulings where they create new law out of thin air. Why should anyone believe this tiny group’s personal philosophies to be superior to those of the citizenry and their elected representatives?
Relying on “an unelected, unaccountable, life-tenured, elite group of judges” to determine “the most sensitive issues of morality and religion” according to their own philosophies (or erroneous precedent) instead of according to the Constitution’s original intent, argues Calabresi, “concentrates absolute power in one place, when the whole thrust of the U.S. Constitution was to disperse and balance power through the system of checks and balances.”
The courts have their appropriate role, of course. But it is important to keep them strictly within the boundaries of that role. Of this, Calabresi writes, “It is legitimate for courts to decide such [sensitive] issues only when they are enforcing the Constitution as originally understood and ratified by the people--and not enforcing the justices' own views as to what is good public policy.”
Any other standard is no standard at all.