Friday, March 19, 2010

Some problems for originalist jurisprudence

It is important to realize that our country's was founded on something of a moral contradiction. On the one hand we have the Declaration of Independence, (all men are created equal), and the Bill of Rights, which suggests that we all are supposed to have rights, and yet large portions of the country practiced Negro slavery (including the author of the Declaration), and women were denied the right to vote until the 20th century. Because the South dropped out of the body politic through secession, we were able to amend the Constitution in order to end Negro slavery. Thus, through amendment, we were able to make our laws more morally consistent. But the Supreme Court didn't help reach this, it produced the dreadful Dred Scott decision. Women got the right to vote through constitutional amendment. But separate but equal held sway until Brown vs. Board of Education. At that time there were certainly enough Southern states who would have prevented a school desegregation amendment had one been proposed, since you need 3/4 of the states to amend the Constitution. Under those circumstances, the originalist slogan "if you don't like the Constitution as it is written, amend it," would never have worked. Now maybe a originalist argument could have been made for school desegregation, but the actual jurisprudence in Brown seems not to have been that. The originalist has to be prepared to tolerate what they perceive as a deep injustice, hoping for a future amendment, if they can't pull the required change out of the text of the constitution. And to my mind, that is a price to pay.

On the other hand, an out of control judiciary can maybe make the wrong decision, and a lot of people think that that is what happened in Roe. But when I was a kid people talked about an out of control judiciary, but when they did they usually complained about decisions like Miranda, which protected the rights of the accused? Was "You have the right to remain silent," now a staple of every cop show going as far back as Hawaii Five-O, a misguided decision? Unfortunately, I think I want the court system protecting the rights of the accused. I can't trust the body politic, who is generally motivated by "law and order," and can be swayed by such things as the Willie Horton ad, to provide sufficient political will.

And then you've got to ask if judicial activism started with Marbury vs. Madison. After all, judicial review isn't even specified in the Constitution.

I think I want my judiciary to be able to strike down injustice even if that means stepping beyond the borders of original intent, even if that leaves the door open for the judiciary to make some wrong decisions. I think the implicit doctrine at the foundation of the Constitution is the principle of equal rights for everyone, in spite of the fact that it got enshrined in the text of the Constitution only imperfectly.

There's a lot to think about when you select a judicial philosophy.

I wonder who was making the originalist arguments at the Council of Nicaea? The Arians were arguing that you couldn't find homoousion in the text of Scripture, so you couldn't define orthodox Trinitarianism as Christian doctrine.

If fetuses really are persons, if every conception of personhood that places the onset after conception is arbitrary, then shouldn't the equal protection clause of the 14th Amendment be applied to them?


J said...

...then you've got to ask if judicial activism started with Marbury vs. Madison. After all, judicial review isn't even specified in the Constitution.

Jefferson, however flawed, considered Marshall's ruling in Marbury vs. Madison anti-Constitutional, and a tacit approval of a sort of judicial monarchy. At any rate , M. vs M. weakened the power of the legislature, and greatly increased the power of the...Black Robe posse (though admittedly, the SCOTUS has a few times done the right thing, when the House or Senate hasn't. But on whole they haven't...)

Victor Reppert said...

Since the Supreme Court is now the only branch of government now dominated by Republicans, we will have to see how many complaints of "judicial activism" we will see over the next few years. Striking down campaign finance reform was, of course, the very soul of judicial restraint and close adherence to original intent.

J said...

Is that irony, VR? The campaign reform legislation was bipartisan-supported, hardly radical. The anti-corporate fat-cat aspects of the campaign reform seem fairly American really--give everyone a shot instead of letting wealth decide all.

In that case, the judicial gang errored, and the judicial review a farce (they did the same with medical pot a few years ago)--in effect, the argument becomes "there's nothing in the Constitution about it, so it's not allowable"--why not strike down the 19th Amendment then (if not anti-slavery codes). The Black Robes apply Jud-Rev. (ie M vs M) inconsistenly and haphazardly for the most part.

The "originalist" stance favored the legislature, I believe--.

Victor Reppert said...

It was called McCain-Feingold. That's about as bipartisan as it gets.