Updated: Mar 31
This essay is an updated version of a post I wrote during the confirmation hearings of Amy Coney Barrett.
Confirming nominees to the Supreme Court used to be a blasé bipartisan affair. Justices Scalia, Kennedy, O'Connor, and Stevens all received 100% votes in favor of confirmation. Ruth Bader Ginsburg? Ninety-seven percent.
More recently, however, nominations have become much more contentious and partisan. Neil Gorsuch (2017) received 55% and Brett Kavanaugh (2018) received just 51%. In 2020, Amy Coney Barrett received zero votes from Senate Democrats. What happened?
The Court was originally designed in such a way as to virtually ensure near-universal confirmations. Then, we thought we found a better way.
Originalism vs. Living Constitution
The architects of the high court knew that passion and faction represented a great danger to representative governments. Our legislative process was purposely designed to be difficult so as to distill reason and discard passion as much as possible in our deliberations.
Thus, if something becomes law it represents the most dispassionate, reason-based effort that elected representatives were able to arrive at. Amending the constitution itself is an even more rigorous process.
The judicial approach known as "Originalism" recognizes and respects that process and seeks only to determine the meaning of that pinnacle, that apogee, of democratic achievement. What did the people mean when they were at their very best? When passion had been painfully strained from their deliberations through long and vigorous debate? When the entire nation had weighed in and all possibilities considered? When all checks and balances had been exercised and compromise and consensus had been achieved?
In recent decades, however, another approach has become popular. Known as "living constitutionalism", it seeks to bypass the distillation that comes from deliberation, resulting in legislation from an unelected bench that is far more easily tainted by passion and faction - facilitating the "tempestuous waves" of "party rage" Hamilton warned of and which we've seen surround court nomination and cases these past several decades.
Originalism is apolitical and party-agnostic. Living Constitutionalism does an end-run around the carefully constructed system of checks and balances in an effort to get to the desired result faster.
Originalism requires that we wait for the water to pass through a complex filter. Living Constitutionalism drinks straight from the poisoned well. It moves deliberation from the legislative branch to the judicial branch, starting with the confirmation process. It concentrates power into far fewer hands.
Our departure from originalism is what made the confirmation process political in the first place. Similarly, every case that comes before the court is subject to the same contentiousness because under Living Constitutionalism, the hard-won will of the people can be quickly overturned.
The Problem of People
We humans are notoriously difficult to govern. We are capable of extremes, both transcendent happiness and absolute horror.
In 350 BC, Aristotle described the human problem this way:
“For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all; ...if he have not virtue, he is the most unholy and the most savage of animals, and the most full of lust and gluttony."
He continued, summarizing the solution to the problem:
"Justice is the bond of men in states, for the administration of justice…is the principle of order in political society.”
But how do we ensure justice? Philosophers and statesmen have long puzzled over how to properly structure government to minimize horror and maximize happiness. In Politics, Aristotle reviewed a laundry list of past governments and where they went wrong, and what might be done to improve upon them.
A Graveyard of Governments
Two thousand years later, the founders of the fledgling American republic grappled with the same problems, still unsolved, but with many more subsequent examples to learn from.
From their lofty perch, they looked back over thousands of years of attempts at government and the many failures - and particularly, the suffering of everyday people under them.
In Federalist 9, Alexander Hamilton trembled at the panorama of human suffering and tried to describe what he saw:
"Horror and disgust at the distractions with which they were continually agitated"
"Rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy"
"Overwhelmed by the tempestuous waves of sedition and party rage"
"Lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated"
"Wretched nurseries of unceasing discord"
In Federalist 10, James Madison observed:
"[Pure] democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths"
"A zeal for different opinions…[has] divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts."
In Federalist 1, Hamilton marveled that not only do we have bad intentions to deal with, but bias and bad judgment on the part of those with good intentions:
"So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society."
"Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question."
In Federalist 51, James Madison famously summarized the problem of human governments:
"What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
The founders' solution was to divide power into as small components as possible and disperse them as widely as possible - at the federal level, the state level, the county level, and in cities and towns.
At each level, power was divided among three branches, and the people, in whom both passion and sovereign power reside, were removed from the business of government, except in the election of numerous representatives who were given very limited responsibilities.
Relegating all legislative deliberation to Congress and all questions of Constitutional amendment to the states, the founders allowed and intended for the Supreme Court to stay free and clear of the "tempestuous waves" of "party rage".
What Originalism is and is Not
Originalists do not pine away after "the way things were" when women couldn't vote and blacks were still slaves. Nor do they yearn to overturn Roe v. Wade, per se.
Originalism doesn't mean those things. It doesn't pass value judgments like "abortion is good/bad", "women's suffrage is good/bad", or "the death penalty is good/bad."
Originalists believe that value judgments are the purview of the legislature where "we the people" through our representatives, debate, argue, and finally come to a consensus on the moral values we want our laws to embody. When a case comes before an originalist judge all she seeks to determine is, "what did the writers of the law mean when they wrote this law?" That is, what is the last known, democratically decided will-of-the-people? That's all.
Originalist judges leave their own values, religious beliefs, preferences, etc. out of the decision entirely. They judge the law. They DON'T make value judgments of right and wrong, per se. That can seem counter-intuitive, but that's what we mean when we say "justice is blind". It is impartial and objective, not subjective. Friends are treated no differently than strangers, and rich people no different than poor.
As such, originalism is fundamentally democratic. It holds that a Supreme Court justice's only responsibility is to determine the will of the people as most recently enshrined into law through their duly elected representatives. If our will has changed, let us enshrine those changes in law, state-by-state, or if necessary, through the amendment process.
Originalism intrinsically trusts that the people can pass their own laws and must be entrusted to do so if democracy is to thrive. Again, contrary to common misconception, originalism does not take a position on the morality of cases that come before the court: e.g. abortion, marriage equality, capital punishment, gun rights, corporate campaign donations, flag-burning, etc. Originalism's only concern is what did the people say?
Impatience and Sophistry
As stated above, the alternative to Originalism is the "evolutionary" or "living constitution" approach, sometimes called the "values-laden" approach by proponents such as Associate Justice Stephen Breyer, or "judicial activism" by its critics.
This is the idea, as Chief Justice Earl Warren, the father of the living constitution approach put it, that we "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" (Trop v. Dulles, 1958). It holds that our understanding of the constitution must change as our society changes, but we can bypass the people and their legislative process, if necessary. We don't need to amend the constitution itself to enact that change. This approach, advocates say, prevents the "dead hand" of prior generations from controlling important contemporary issues to an extraordinary and unnecessary level of detail (McConnell, 1997).
Originalists agree that society's standards of decency do evolve. They do not say the original Constitution or Bill of Rights are immutable. Both they and living constitutionalists agree with Thomas Jefferson who wrote in a July 1816 letter to Samuel Kercheval:
"Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. ...We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."
Where originalists and evolutionists differ, however, was well captured by Douglas Linder, Stanford graduate, and Professor of Law at UMKC who stated:
"We are free to touch the Constitution, to shape it to fit current needs, even, if necessary, to tear it up and write a new one. What we are not free to do is to ignore it."
Originalists, therefore, don't care if an amendment is 200 years old or 20 days old. Their allegiance is to the law, the democratically enshrined will of the people. The question posed by originalists then is not if constitutional law should change, but who should change it. Three-fourths of the states? Or nine unelected judges? Should power be dispersed? Or concentrated?
Originalists are not against "evolving standards of decency." The question is one of jurisdiction - who decides what those evolving standards are? Holders of the originalist view do not believe judges are put in place to judge right and wrong, which is subjective. Rather, they are entrusted to judge the law, which legislators attempt to make objective, based on the will of the people, which, we all hope is based on a solid moral foundation.
When a question of right and wrong comes before the court that is not already explicitly answered in the Constitution and its amendments, the proper course is to remand such decisions back to the people through their democratically elected representatives, thus preserving the democratic nature of our society.
The alternative is for the justices, five of them, to subjectively decide what is right or wrong and impose that will on everyone in the country. In effect, the ideals of democratic rule and rule of law are thwarted and their strength diminished. The populace focuses its attention on courting and convincing politicians, rather than on persuading their fellow citizens.
Making Legislators of Our Judiciary
During the confirmation hearings of Amy Coney Barrett, she was called "conservative", even "ultra-conservative." These terms did not refer to her political party affiliation or mean that she would actively seek to move the court to the right.
Conservatism in the judicial sense means that one seeks to interpret or understand, i.e. conserve, the original intent of the law as currently enacted, and not take it upon oneself to interpret it differently, which is in effect an act of legislation.
The "living constitution" approach makes legislators of our judiciary. Instead of remanding decisions back to the people, these justices take it upon themselves to modify the law. The power shift that this represents is enormous and is the reason why Supreme Court nominations are now so contentious. Of course, they are. We now have five lawmakers instead of 435 - or thousands if we include state, county, and city lawmakers who are now removed from the process entirely. Thus, the "living constitution" approach is fundamentally undemocratic. It is a concentration of power, from many hands to very few. It is a breach of one of the separations of power.
Alexander Hamilton wrote decisively on this subject in Federalist 78:
"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.
"...It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. ...The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proves anything, would prove that there ought to be no judges distinct from that body."
Once, when asked about this principle, Associate Justice Antonin Scalia said (paraphrased):
"The people know values. The people should decide. I was appointed to the court because I'm a good lawyer. I don't know any better than you do whether there ought to be a death penalty or there ought to be a right to an abortion. But I can read the text and see what was meant when it was adopted.
"If judges are implementers of good values, they should be elected or you should select them based on their values, which is actually what we now see in the confirmation process. "The people are not fools. They recognize that we are changing the meaning of the constitution from decade to decade. Now it's not so important whether this nominee is a good lawyer, a good person, or has a modicum of judicial temperament.
"Now, the most important thing is I want to put someone on the court who has my values - who wants to allow or prevent abortion, allow or prevent capital punishment. You convert what was supposed to be a lawyerly institution into a political institution."
If we the people believe something very strongly, let us advocate amongst ourselves, convince our fellow citizens and seek legislation, including amendments, that embody those values. Yes, it is time-consuming, burdensome, and frustrating. It is democracy. Involvement and advocacy are the price of freedom.
Citizens on both the right and the left should advocate for constitutional originalism. It protects us all. If we are worried that an originalist might encroach upon our sacred cows perhaps we should question the method we used to force that sacred cow upon our fellow citizens in the first place. If we believe our position is so correct that it warrants forcing it on others outside of the amendment process, we have entered the territory of dogma.
What About All the Good Done by Activist Courts?
None of this is to say that the living constitution approach can't arrive at "good" decisions. On the contrary. Just like any ruler or ruling body, be it a king, czar, parliament, or despot, those in power can always "do good."
Indeed, originalism can result in verdicts that seem "bad" to some citizens, like not outlawing flag burning or pornography.
Living constitution proponents may often make "correct" judgments between right and wrong. But they always take the wrong route to get there. They placate the present and damage the future.
It isn't the role of the Supreme Court to "do good" or "do bad" or enforce "right and wrong." Their sole role is to arbitrate the law. The people through their representatives pass the laws that embody right and wrong. It is dangerous to place that much power in the hands of one or a few unelected persons. Instead, we require an amendment process which albeit slower, has the legitimacy that deliberation and ratification would provide.
Judicial Activism and the Seduction of Power
On several occasions, Justice Scalia expressed the concern that the evolutionary or activist theory is extremely seductive to those in the law profession, especially Supreme Court justices, lawyers, and law professors.
The living constitution approach grants them enormous power and significantly enhances the importance, power, and prestige of the judiciary in society. Their opinions, writings, and speeches are in much greater demand.
Justice Barrett compared this seductive power to the siren song Odysseus was warned of. The mast of his ship is constitutional law and the ties that bind him are originalism.
It is understandable and expected that a Justice should be tempted to supersede her role as an arbiter of the law and attempt instead to be the arbiter of justice itself. How wonderful to be able to right wrongs from the bench! How wonderful to be lauded by your contemporaries as a heroine of social justice!
But to do so is to take upon oneself the role of the legislator, enshrining into law one's own opinion of the way things ought to be or one's perception of society's values, bypassing the legislatively enacted will of the people and placing limitations on democracy. Judicial activism has at least five effects that damage and endanger society:
power is concentrated in the hands of the very few
laws lack the legitimacy that would have been gained through the crucible of the democratic legislative process
laws can be made quickly - and changed quickly by a future court, resulting in anxiety and uncertainty among the people because the law is volatile
agitation and dismay whenever a judge is to be nominated or confirmed
the people feel coerced, rather than convinced, potentially stagnating or reversing the democratic tides of changing morals
Abortion is a classic example that illustrates these effects. Even Justice Ruth Bader Ginsburg lamented that Roe v. Wade stopped the democratic momentum that abortion-rights advocates had and gave the right-to-life movement a "great organizing tool" in what they viewed as a "most undemocratic decision made by nine justices whom nobody elected to make decisions for the country."
While falling short of advocating that such a question should be left entirely to the legislative (democratic) process - consistent with her living constitution position - she did express that "it would have been healthy" to have both the judiciary and legislature involved in the incremental back-and-forth dialog of "change and what is good for society", much like the two were indeed involved in the question of no-fault divorce where within ten years every state in the nation had some form of no-fault protection. She said, "that would have been my ideal picture of how this issue would have gotten resolved instead of having the Supreme Court as the single decision-maker."
Incrementalism is a hallmark of classic liberalism. Coercion is the hallmark of all despotic machinery.
Who Protects Minorities?
Proponents of a living constitution viewpoint argue that the justices can use their power to protect minorities from the majority.
Antonin Scalia agreed that the court has a role to play in protecting minorities, but not by legislating from the bench. The court's role in protecting minorities is in striking down lower laws that contradict the protection of minorities that exist in constitutional law.
For example, in Yick Wo v. Hopkins, 118 U.S. 356, the Supreme Court struck down a San Francisco law (the majority) that unfairly discriminated against Chinese laundromat owners (the minority), because it infringed on the 14th amendment.
In truth, it is the role of the majority to protect the minority, via the dispassionate deliberation of the Constitution's ratification and amendment processes. The majority, by enacting the Bill of Rights and subsequent amendments, are in reality placing limitations on what they and future majorities can do to minorities.
Rights related to speech, religion, assembly, self-defense, press, protest, due process, women's suffrage, etc. are limitations the majority places upon itself with respect to the rest of the country. When we say that Congress shall make no law... what we are really saying is the majority shall make no law.
By legislating from the bench, the Supreme Court denies the majority the legitimacy this act of self-restriction would give. This role of the majority is perhaps one of the things John Adams had in mind when he said, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other" (Adams, 1798). Just as Justices must not apply to natural law (values) when hearing cases, the majority must adhere to natural law, the law of nature and nature's God, to know what restrictions to place upon itself.
Endangering the Ship of State
The originalist view of a Justice as an arbiter of the law and not a law-giver is not only an important check on the executive and legislative branches of government but on the justices themselves. Combined with the many other restraints on power designed into our system of government, these checks as I've said elsewhere create an American ship of state designed like the honeycombed bulwarks of a ship of war.
Vertical and horizontal powers, checks and balances, auxiliary precautions, and other devices act like watertight doors that are put in place and kept closed to curb, channel, and isolate power so that overreach or corruption in one area would be prevented from spreading long enough for corrections to be made.
Former Associate Supreme Court Justice, Louis Brandeis, coined the term "laboratories of democracy" to communicate this idea - that change should happen locally where others can observe and adapt as they see fit.
The adoption of the evolutionary approach by Supreme Court justices opens one of these watertight doors. Instead of remaining impartial and apolitical, nominations are now highly contested, even panic-inducing.
During the confirmation hearings for Justice Barrett, I had friends who wailed on social media that "this woman is frightening", "we're screwed", and "we're f**ked." Pundits howled that Barrett would "strip", "gut", and "destroy" cherished rights enacted by prior activist judges. They didn't say this because they thought she was a bad lawyer or her credentials were in question or lacked judicial temperament - traditionally the criteria for a nominee. They said this because they thought her values on social policies differed from theirs and she was up for nomination to the Supreme Court where justices are now encouraged to introduce their values in decision-making, under the living constitution view.
They would have nothing to fear had they been advocates of originalism and the amendment process all along. Enshrined in amendment law, their values would be beyond the reach of the Supreme Court. The battle of values belongs in the election and deliberations of the legislature, not the appointment of the judiciary. They are meant to be impartial and originalism provides that.
Why Did This Happen?
The living constitution viewpoint is consistent with the progressive approach to governance that has increasingly characterized and polarized our politics over the past 100 years. In an attempt to solve society's problems quickly and centrally, progressives advocated successfully for the concentration of power at the federal level. The conservative right, while making occasional lip service objections to these changes, has accepted them as their own with an emphasis on quasi-imperialism and supporting the military-industrial complex. Accumulation of power and debt occurs under both parties.
This centralization is equivalent to the opening of the watertight doors of a ship. Damage or corruption flows more freely. Elections matter much more than they should. Citizens are estranged from one another because it's not your fellow citizen you need to convince to evince change.
And, we risk the tyranny of the majority. Associate Justice Antonin Scalia said it this way:
"The American people have been converted to belief in The Living Constitution, a 'morphing' document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against - the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all" (Scalia, 1995).
In 1987, opponents to the president's nomination to the high court led to the now-infamous character assassination of Robert Bork. As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing and cited Bork's strong originalism as a reason for his opposition to the nominee. In 2001, Latino immigrant, Miguel Estrada, was nominated and boasted a unanimous "well-qualified" rating from the American Bar Association to the U.S. Court of Appeals for the D.C. Circuit. Members of the opposite political party, fearful that an attractive candidate like Estrada might one day be nominated to the Supreme Court, kept him in limbo for over two years, including a six-month filibuster, the first of any court of appeals nominee, and the first that ever prevented a judicial nominee from joining a court. All this in spite of Estrada enjoying majority support within the senate. Estrada, finally having had enough, withdrew his name from consideration.
In 2013, Senator Harry Reid used the "nuclear option" to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments. Within a few years, Senator Mitch McConnel retaliated, extending the nuclear option to Supreme Court nominations as well.
Fast forward to 2016 when the Senate exercised its separation-of-powers right to postpone its "advice and consent" role until after that year's election. Obama nominated Garland in mid-March. There was plenty of time to hold hearings on the nomination, but the gloves had long since come off. The tradition of political hardball when it comes to judicial confirmations was well established and it had all started out of fear that an originalist judge like Bork would undo prior "living constitution" decisions made by the court. A tangled web we indeed have woven.
We have centralized far too much power at the federal level, resulting in an all-or-nothing power tug-of-war, on constant replay. Unless we fix that we're just going to see increasingly bitter division and contentious power plays like those we see with Justices Kavanaugh, Barrett, and Jackson. We will continue to see questions like "Can you provide a definition for the word 'woman'?" or "Is it your personal hidden agenda to incorporate Critical Race Theory into our legal system?"
Those are questions for the legislature, not the judiciary, but we have made the judiciary the legislature devoid of the tools of filtration and deliberation imposed on Congress and the states by the Constitution.
Power corrupts and absolute power corrupts absolutely. Passion also corrupts and is the reason factions seek power to begin with. The makers of our high court recognized these evergreen pitfalls in human nature and carefully designed a constitutional structure that would separate the judiciary from the passion of public discourse and distill the passion of public discourse into the reason-based consensus of legislation or amendment law.
We play Russian roulette with our democracy when we open the watertight doors of power the founders so carefully shut.
Justice Barrett discusses her views on the judiciary in an address in Washington D.C., sponsored by Hillsdale College here.
Another insightful address by then Professor Barrett at the Jacksonville University Public Policy Institute here.
Aristotle. (1955). Nichomachean Ethics (Vol. 9). Encyclopædia Britannica.
“From John Adams to Massachusetts Militia, 11 October 1798,” Founders Online, National Archives, https://founders.archives.gov/documents/Adams/99-02-02-3102.
Hamilton, A., Jay, J., Madison, J., Carey, G. W., & McClellan, J. (2001). The Federalist. Liberty Fund.
Michael W. McConnell, "Textualism and the Dead Hand of the Past," 66 George Washington Law Review 1127 (1997). Available online here.
Scalia, A. (1995, March 8). Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. Retrieved September 28, 2020, from https://tannerlectures.utah.edu/_documents/a-to-z/s/scalia97.pdf