“Scalia himself admits that his preference for ‘originalism’ is purely a matter of opinion and that originalism and non-originalism of various types (including the ‘living constitution) are ‘two evils’ of which originalism is the one ‘I prefer.’ Confronted by the obvious problem with his problem with his preferred hermeneutic, however, Scalia admitted: ‘It’s not always easy to figure out what the provision meant when it was adopted. I don’t say it’s perfect. I just say it’s better than anything else.’ But ‘originalism’ is not, in fact, better than anything else. It is arguably even worse than the ‘living constitution’ of the liberals, as it embroils conservatives in a fossil hun for the petrified evidence of debatable 18th-century understandings, while the liberals confront head on the knotty issues of justice, morality and even theology inherent in such concepts as ‘life,’ ‘liberty,’ ‘property,’ ‘establishment of religion,’ ‘free exercise of religion,’ ‘freedom of speech,’ ‘cruel and unusual punishment,’ ‘privileges,’ ‘immunities,’ and ‘due process of law,'”
– Christopher Ferrara, Liberty the God that Failed –
Generally speaking, the jurisprudence adhered to by the progressive liberal considers the constitution to be a living document that changes it’s meaning over time according to cultural circumstances. So construed, justices adhering to this jurisprudence subordinate the written words of the constitution to the prevailing circumstances of the culture.
In opposition to this view is the conservative jurisprudence, which views the constitution as a “dead” document, as Justice Scalia once stated. This means that justices are to view the constitution through the lenses of “original meaning” or a textualist perspective. To borrow from Justice Scalia once again, “The constitution says what it means and means what it says.”
A problem with the progressive view is that it seems to be obviously incorrect to assume a written legal document can be interpreted according to the whims of a changing culture when the very purpose of the document is to avoid this situation in the first place.
However, this does not mean that the progressive view is entirely baseless.
The problem with the conservative view is that this theoretical approach to textual interpretation of the constitution seems to ignore the importance of the “living”, organically developing, unwritten cultural constitution which forces the government in to the position of making hard decisions concerning matters of justice.
The fact of the matter is that such decisions may have to be settled by those who are guardians of a culture’s deposit of tradition and justice.
This gets to an important point concerning these competing views of constitutional jurisprudence. A primary problem with the conservative view is that they seem to adhere to a jurisprudence that does not consider the important question of what a justice ought to do. What a justice ought to do when deciding a case is much different than focusing on what the constitution affords justices the power to do when deciding a case. Progressives, on the other hand, seem to be totally focused on the question of what a justice ought to do when deciding a case no matter the constraints within the text of the constitution. This is why progressive justices will “legislate from the bench” on certain issues; they believe they have a duty to sanction justice exceeding the constraints considered to be culturally arbitrary. The problem with the progressive view, I maintain, isn’t that they focus on what justices ought to, it is that they are the philosopher kings of an erroneous political philosophy informed by the tenets of a fallacious liberalism.
Consider this from the perspective of the current debate concerning marriage and the Obergefell decision overturning laws throughout the states that had enshrined the traditional, conjugal view of marriage. What if the justices had decided differently? What if the justices not only upheld the traditional marriage laws where they already existed, but overturned the laws in other states that opened marriage to redefinition while stating that the only valid laws are those adhering to traditional marriage? Now, if the traditional view of marriage is true, right, and just could any conservative seriously argue that this is an act of unjust judicial activism? Would it be unjust to protect the family from progressive redefinition? It is important to also consider whether something being unjust and something being unconstitutional is the same thing.
The justice adhering to the textualist interpretative view of the constitution may argue that they cannot make such a ruling because they have no power to do so. The constitution does not afford them the authority to rule on the definition of marriage. This perspective will most likely result in these justices not being able to rule as they ought to in this instance. If this is the case, then it is a reasonable criticism to say that the conservative view of the constitution prevents justices from doing as they ought to in cases requiring adherence to a higher view of justice afforded by the written text of the constitution.
But can this be a correct and moral jurisprudence, let the constitution reign though justice be thwarted?
– Lucas G. Westman