Tuesday, January 10, 2006

The problem with originalism

In the past I have written in defence of originalism (any theory that supposes the U.S constitution has a fixed and knowable meaning) as it would have prevented the federal authorities from cracking down on medical marijuana even in states (e.g. California) where it is legal. Originialism, as a theory of interpretation, is a family of theories and it is important to understand the differences between these theories if we are to understand the difference between conserivative judges like Antonin Scalia and Clarence Thomas.
The school of thought that Scalia heads rejects objective law and original intention and hence sees freedom not as a principle, but as a frozen abstraction. He thinks the interpetation of the constitution ought to be based upon what it meant at the time of ratification, which is to say, it asks this question:
"What would a reasonable person living at the time of ratification have understood these words to mean?"
This cannot be considered objective. According to Scalia, slavery would be accepted, because at the time of ratification, it was considered legal. Hence when we come to issues like the illegality of homosexaulity in Texas we find Scalia on the Supreme Court arguing that Texas has legitimate authority to punish a man for a consensual act. When we ignore intentions we freeze law at the 18th century
Tara Smith explains further:

Laws are necessarily written in broad terms, designed to govern an array of cases that are similar in principle but different in particulars. Judicial rulings are needed when the proper application of those laws, in a specific case, is not transparent. The logical application of a Constitutional provision to novel circumstances is not, therefore, a case of creating new rules ex nihilo. Rather, it is exactly what we need judges to often do. While Article I, for instance, provides for the common defense and the specific maintenance of an army and navy, courts have not been activist dictators by also allowing an air force. While the First Amendment protects freedom of "speech" and of "the press," courts have not brazenly "legislated" by treating written letters as also protected.
In doing their job, judges must be mindful of the 9th Amendment. The Constitution does not provide an exhaustive catalog of every right that citizens possess. The 9th Amendment explicitly instructs us that those rights not named in the Constitution are retained by the people. It is thereby laying down a principle to guide Constitutional interpretation. Accordingly, judges must apply the law in a way that respects all the rights of the citizens, unenumerated as well as enumerated. It is no more legitimate to subtract from the Constitution, by ignoring this provision, than to arbitrarily add to it.