Originalism
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Originalism is the idea that one should apply "the original intent" of the framers in deciding Constitutional questions. It is a constellation of theories and views, which vary from person to person, but which all have their roots in the idea of legal formalism. Simplistically, legal formalism is the idea that laws should be applied like technical specifications, that they should be regarded as having black and white meanings. This is in contrast to the tradition of equity, which views the law as a source of justice, to be applied according to discretion and common sense to maximize fairness with the text taken as a guide rather than a proscription.
If we talk about what law is, in the sense of how it really operates, it is both formal and organic. It will always be both, and it almost surely should be both. Where to dial in the multidimensional space of legal theory is the very hard question.
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Fundamental Problems
- The Constitution just doesn't say much. To the extent that we apply a formalist approach, it's silly to reference the Constitution in all but a small number of cases except to say, "The Constitution provides little guidance."
- To get around the limitations of the paucity of text, originalist apply the impossible and ludicrous standard of "a reasonable person alive at the time". Of course, reasonable and average people long dead and gone always tend to agree with one's pre-existing bias so it's hardly any kind of useful standard.
- There were a lot of lawyers at the Constitutional Convention so we must assume--and the originalist doubly so--that the vagueness of the constitution is quite intentional. This fact is at odds with the notion that the constitution can be clearly interpreted to apply as an unambiguous, technical prescription to a broad range of questions.
Empirical Problems
There are clear examples where application of the logic of originalism leads to a different conclusion than that proposed by so-called originalists.
- The Copyright Act of 1790 tells us exactly what the framers and the reasonable average person thought a limited copyright should be, yet originalists have consistently upheld copyright extension. [1]
- Corporations at the time of the founding were limited purpose, tightly controlled entities and the idea that they should be considered persons would clearly be ludicrous and most likely offensive to both the framers and "the average reasonable person." Yet the court has consistently upheld the idea of corporations have rights. [2]
TODO: need more references
Meta Problems
In theory, a judge can separate their personal feelings regarding the goodness of a law from the legality of that law. Overturning a law on "constitutional" grounds, for the originalist, should mean that very, very few laws get overturned. Roe v. Wade: probably not a constitutional question. Citizens United v. Federal Election Commission: probably not a constitutional question. Eldred v. Ashcroft: clearly a constitutional question, but the constitution goes the other way...
Now, for others these cases may be constitutional questions, but not for the originalist. This puts the originalist at a disadvantage, so it's not surprising that originalists play fast and loose with their application of the theory.
My problem is that this is the theory they chose. No one made them be originalists, they decided to claim it. But that should mean taking the good with the bad. Or giving up on originalism. Any thing else is disingenuous, cynical, and a bit pathetic. The originalist justice wants to wrap themselves in the mantle of objectivity and claim the mandate of the founders, but it's nothing but a cheap trick. They simply apply that claim to whatever it is they feel like applying it to.
Summary
Originalism hinges on a assumption that the Constitution has a fixed meaning and that meaning can be unambiguously ascertained. The succession of the Presidency clearly has unambiguous and fixed meaning. Whether "hate crimes" legislation is Constitutional is not so clear.
To me, it's rather clear that the Constitution just doesn't say much on may subjects. I believe the Supreme court should stay silent on the majority of cases because their job, in the originalist sense, is not as the court of last resort, but the court to decide constitutional questions. These are not the same thing.
In reality, every justice is their own person and is going to decide cases based on their bias and agenda and policy preferences. There will be rare occasions where they step outside themselves and make decisions based on theory and some objective understanding of law, but these are rare. And that's okay. Okay because that's the way it's always been and we've made it this far, so we shouldn't get to twisted up.
Yet the situation is far from ideal. There are many problems with the judiciary (though of the three branches, they are perhaps least problematic), but to my mind the leading problem is the hypocrisy and disingenuous way in which the judiciary pretends to be impartial and claims adherence to ideas such as originalism in order to mask their bias. The bias is clear, their own violation of the theory is clear, yet the theory is proffered as justification for what they do and we accept that at face value. It's preposterous.
