Judicial Activists’ Twisted View of Originalism
The New York Times Magazine will publish this article on Sunday about Justice John Paul Stevens, probably the most left-leaning judicial activist currently on the Supreme Court. Jeffrey Rosen wrote this fawningly favorable salute to Stevens. Those who read the article will find an interesting examination of Stevens’ beliefs.
One jurisprudential point deserves a response, because Stevens gets this point so wrong. Justice Stevens claims that he is an “originalist” — that he attempts to understand the original meaning of the Constitution, as Justice Scalia and others do. But Rosen explains Stevens views with an important twist that really nullifies any commitment to original meaning of the Constitution that Stevens might have:
Stevens’ final judicial theme is that the court has an obligation to protect ideals of equality and liberty in light of the nation’s entire history, rather than legalistically parsing the original understanding of the Constitution. As the court moved right during the past 20 years, Stevens increasingly saw it as his role to interpret the Constitution with fidelity to all of American history, rejecting the claim of Justices Antonin Scalia, Clarence Thomas and Judge Robert Bork that the original understanding of the 18th-century framers is all that matters.
So, Stevens believes the original meaning of the Constitution is what the original drafters meant, as modified by the whole of American history. This takes a valid, reasonable point and twists it in an entirely illogical direction to empower judges to impose their personal views on others.
If we are trying to find out the original meaning of a constitutional text, the relevant historical data are those of the people who actually drafted the provision. While the experiences of later generations might inform us that we need to change the Constitution. Sometimes the Framers got it wrong and we have to amend the Constitution to correct the flawed and unworkable provision. The Founding Fathers were not omniscient archangels. They made errors. For example, Americans passed the Twelfth Amendment correcting the procedure for casting of ballots for president and vice-president in the Electoral College. This was a response to the election of 1800, where Thomas Jefferson and Aaron Burr (Jefferson’s VP candidate) had earned the exact same number of votes in the Electoral College, throwing the election into the House of Representatives.
But the change came by elected officials following the procedure laid out in Article V to amend the Constitution. The Supreme Court did not step in via a lawsuit and say it would interpret the clear text of the Constitution differently because of the nation’s negative experience with the presidential election of 1800. If the people believe a certain provision of the Constitution should be changed, they have the power to do it under Article V. But the existence of any perceived “flaw” in the Constitution does not empower the courts to correct the “flaw.”