Before and after his death, Supreme Court Justice Antonin Scalia was criticized and lauded for his originalist legal philosophy.
While Scalia was a respectable justice, originalism, or interpreting the Constitution strictly as it was written, is nothing more than a partisan tactic to make the law political.
In an interview with University of California, Hastings College of Law professor Calvin Massey, Scalia noted, “in its most important aspects, the Constitution tells the current society that it cannot do whatever it wants to do,” aligning with his originalist doctrine.
Scalia said he believed if the courts give constitutional provisions the breath of life and “an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all,” he said.
This doctrine differs from a more logical approach known as loose construction or “living Constitution,” which abides by the fact that societies and politics evolve, and thus legal cases are circumstantial.
For example, Scalia and many other originalists hate the idea of using the equal protections clause of the 14th Amendment to determine cases of sex discrimination. From this view, an amendment created directly after the Civil War was only intended to protect African-Americans from discrimination shouldn’t apply to discriminatory cases toward women and men more than a century later.
To make such rigid distinctions helps the cause of conservative beliefs. Legal rule moves at such a slow pace under this doctrine compared to the evolving speed of the country, and it’s oh-so convenient that originalist philosophy prevents the law from keeping up with the people.
It’s obvious that the founding fathers had infinitesimal disagreements about what to include and what language to use in the original documents.
In “The Audacity of Hope,” former president Barack Obama outlined his own loose constructionism and why it makes more sense than meeting the original intentions of provisions written centuries ago.
“The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece,” he said. “Before the ink on the constitutional parchment was dry, arguments had erupted not just about minor provisions, but about first principles; not just between peripheral figures, but within the revolution’s very core.”
Legal doctrine cannot presume a stagnant society. People change. Institutions change. Governments revise their mistakes by amending governing documents. Originalism assumes that this doesn’t happen, nor should it.
For being ridiculously convenient for modern conservatism, originalism should be seen as a partisan ploy. However, Scalia’s long line of legal disciples will make it difficult for the doctrine to go away any time soon.
