An Inconsistent Originalism Beats 'Politics by Another Name'


In a recent FindLaw essay, the Cato Institute's Robert Levy notes that John McCain has promised to appoint judges who "understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power." That much is encouraging, he says, but McCain's avowed preference for "strict constructionists" and believers in "original intent" is troubling, assuming the Republican nominee understands how those terms are used by constitutional scholars. Levy prefers originalism, a.k.a. textualism:

Originalists interpret the Constitution in accordance with its meaning when the underlying textual provisions were ratified. Sometimes originalists are called "textualists" because they assign great importance to the words actually in the Constitution. As the term implies, originalists insist that the text be interpreted as it was originally understood by those who first wrote and read it—not the meaning that would necessarily be derived from a modern reading of the text.

Originalism is not, however, synonymous with "original intent"—a distinct interpretive tool, supposedly favored by conservatives, that focuses on the values and objectives of the drafters and ratifiers when they enacted a particular provision. As Justice Antonin Scalia has written, "It's the law that governs, not the intent of the lawgiver."…

Just as textualism is not the same as original intent, neither should it be equated to strict constructionism….

Strict constructionism is often identified with more conservative legal scholars. Yet Scalia has carefully distinguished it from his own preference for textualism: "Strict constructionism…is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be….A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Levy worries that if McCain is elected and really does appoint disciples of original intent or strict constructionism, they will be insufficiently inclined to pursue "his professed goal to rein in federal power." Even an avowed commitment to textualism, of course, is no guarantee that a judge's decisions will serve that goal. As I've argued, Scalia has been on the side of liberty more often than is commonly appreciated. He broke with strict constructionists by reading the First Amendment to cover flag burning, for example, and insisted on enforcing the plain meaning of the Suspension Clause with respect to "enemy combatants" captured in the United States. His positions on eminent domain, infrared searches, and the federal sentencing guidelines likewise show how applying the original understanding of the text to modern conditions can help curtail the government's power. Most recently, in D.C. v. Heller, he strove to illuminate the meaning of the Second Amendment "as it was originally understood by those who first wrote and read it." At the same time, Scalia somehow managed to read the power to regulate interstate commerce as an excuse to prevent AIDS and cancer patients in California from growing an herbal remedy authorized by state law.

Notably, though, so did the Supreme Court's "liberal" members, and there's little reason to believe Obama's appointees would be any more inclined to enforce the principle that Congress has only those powers specifically enumerated in the Constitution. Furthermore, Levy argues, based on Obama's preference for judges with "empathy" toward members of disadvantaged groups and his belief that "our courts should stand up for social and economic justice," his appointees probably would favor one version or another of "living Constitution" doctrine, which holds that the meaning of the text changes with the times. "When the text of our written Constitution is trumped by evolving societal needs," Levy warns, "then the judicial function is just politics by another name." His Cato colleague Roger Pilon warns that "a 'living constitution,' interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain." 

In an August column, I noted that McCain joins Scalia in making a marijuana exception to the principles of federalism.