The Case for Originalism in Restoring Judicial Integrity

The U.S. is at a time of political turmoil. Among many factors that have led to this unfortunate state, one primary issue is the politicization of the Supreme Court. Its cause is from the judicial ideology of Evolutionism/Developmentalism. This is based in the idea that the Constitution is a living and changing document that ought to be interpreted differently as times change. The opposite and less initially popular-sounding ideology (yet fundamentally superior) is that of Originalism. This supposes that the Constitution and its Amendments ought to be read as they would have been at their times of adoption. Rather than embrace Originalism and interpret the law with neutrality, the Supreme Court, through Judicial Evolutionism/Developmentalism, has taken upon itself the responsibility of representing the desires of the people (and itself). 

Roe v. Wade (1973) and Obergefell v. Hodges (2015) are interpretations of the Fourteenth Amendment’s Due Process and Equal Protection clauses (respectively). An originalist interpretation would say that the words of the amendment are not specific to either abortion or same-sex marriage and that they may not be used to remove these issues from the legislation of the States. Judicial evolutionists/developmentalists, over time, have used this amendment to invent constitutionally protected rights and classes of people in what is known as Substantive Due Process. The Fourteenth Amendment’s Due Process Clause reads, “[the States shall not] deprive any person of life, liberty, or property, without due process of law. This does not mean that there should be secret “[liberties]” that can be created that exist beyond the context of the text of the Constitution. The purpose of this clause was to apply the Bill of Rights to the state governments, what previously only applied to the United States. The “[liberties],” as they are referred to, are those that are protected by the Constitution already (particularly in the Bill of Rights). For example, any supposed “right to privacy” that might justify abortion as constitutionally protected – or anything else –is nonexistent. 

Furthermore, the intent of the people at the time of the adoption of the amendment would not have applied same-sex marriage to the Equal Protection Clause of the Fourteenth Amendment. The amendment reads, “[the United States and the States shall not] deny to any person within its jurisdiction the equal protection of the laws.” In reality, the objective of this amendment was to enshrine racial fairness, not to allow the courts to create unlimited protected classes of people as it desires. This is the basis by which men and women are treated differently under law (particularly in the context of the draft). The Equal Protection Clause is not designed to say that every law must apply equally to everyone. If this were the case, hopefully, tax laws would apply like this. Certainly, this is not how the amendment would have been interpreted in 1868.

The expansion of protected classes of people under the Fourteenth Amendment without a judicial framework supporting how the text would have been read at the time of its adoption allows the Court to expand protected classes of people to hypothetically anyone. For example, these nine unelected judges could interpret transgenderism as a new protected class. The Court could, in doing so, outlaw all laws that might restrict transitions for minors. Using this method of interpreting the Constitution and inventing protected classes of people, the Court becomes a new oligarchy that legislates. The debate over whether transitions for minors is acceptable, or the debate over the legitimacy of transgenderism as a whole becomes stricken from the democracies that are the States (and even the federal government).

Judicial Evolutionism/Developmentalism supposes that interpretations of the Constitution ought to change as the times change. However, if there is a matter of such grave importance and change in overall perspective that it has become necessary that the federal government must protect it (assuming they had no right to do so in legislating under the provisions of the Constitution), the country ought to come together and pass an amendment. A perfect example of this exact phenomenon was in the ratification of the Nineteenth Amendment regarding women’s right to vote. But in the cases of Roe and Obergefell, the intent of the people at the time of the Fourteenth Amendment’s ratification has been disregarded by unelected judges who would rather use their own moral values to decide cases. 

If the Supreme Court ought to interpret the Constitution based on how they think the people’s values are or merely based on their own, they are nothing more than an additional Congress (only one that is unchecked). But this undermines the fundamental existence of the Supreme Court. “Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant.” Obergefell v. Hodges, 576 U. S. 644 ____ (2015) (Scalia, J., dissenting). Such an idea of this oligarchic Court is not only flawed based on the undemocratic nature of the justices and the small number of decision-makers, but, most importantly, their lack of diversity in representing America. The truth is that the justices are all well-educated (mostly of the Ivy League), typically from the coastal states, and usually older. In his dissent from Obergefell v. Hodges (2015), Justice Scalia writes about such lack of diversity: “The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.” Obergefell v. Hodges, 576 U. S. 644 ____ (2015) (Scalia, J., dissenting).

At the time of the Obergefell decision, 11 states had legalized same-sex marriage. This was a major topic in American discourse. Democracy was thriving, and discourse was valued. There is serious merit in the debate over what ought to be classified as marriage. The Supreme Court, in its ruling, murdered the American conversation, the people’s desires, and throned itself the king. With this interpretation of the Constitution, the Court effectively enacted legislation and imposed its will upon the legislatures of the states (and Congress). The Court ordered that same-sex marriage is a proper definition of marriage and that it must be equally protected. 

The question now is why it is fair that the Court has taken the responsibility of legalizing same-sex marriage in all 50 states (and on the federal level) and yet does not protect a Mormon or Muslim man’s right to marry multiple women. Perhaps this could be interpreted even more broadly: why has the court not enshrined the right for anyone to marry as many people as they want? Why can three people not get married? Why are “persons-with-attraction-to-multiple-persons” not their own protected class in which equal protection applies? I suppose the Court has not decided to legislate on these issues yet. These are all situations in which the Fourteenth Amendment, when enacted, would not have been read as applying to them. Ideally (based on the principles of Originalism), these issues would be returned to the people of the states who are not obliged to allow these actions nor deny them. 

Another great example of how this power can be abused is in returning to the subject of abortion. The Court, using an interpretation of the Fourteenth Amendment, could either take away the right to abortion for all of America or force it to be legal for all of America. The vote of nine unelected judges (lawyers) could say that abortion ought to be unquestionably legal under the Fourteenth Amendment’s Due Process Clause (as happened in Roe). Or such an unelected body could interpret (based on their own will) that abortion must be illegal for all of America using the exact same clause. “[L]iberty” expanded to a right to privacy, expanded to abortion, is just as unsound of a legal protection as “liberty” being used to justify a baby’s right to life. Rather than understand that abortion would not have been read as being relevant to the Fourteenth Amendment in 1868, the Court, using the philosophy of Judicial Evolutionism/Developmentalism, could use Substantive Due Process to rule in any way that it desires.

Obergefell and Roe are not unique in the application of Judicial Evolutionism/Developmentalism to their decisions. This has been an ongoing problem for decades. It is not necessarily aligned with one political ideology, and, as can be seen in the case of abortion, it can have political ramifications that can upset anyone on the political spectrum. Overall, many of the decisions that have helped expand the American public’s skepticism for the Court have been based on decisions involving Substantive Due Process and Judicial Evolutionism/Developmentalism. No longer must a justice be a good lawyer, but a good politician. Their personal opinions should not matter, but in the modern political world, they do. Now, their values define the laws of the United States. In a time of such political turmoil, the Supreme Court has abandoned its beacon of objectivity for control over the American Culture Wars.