Oftentimes, academics couch their novel theories in sophisticated language and vague examples to make their ideas more palatable. This is nowhere more apparent than in the field of constitutional interpretation.
For most of American history judges were supposed to merely interpret the law, rather than provide their personal opinions. When describing the judicial system in Federalist No. 78, Alexander Hamilton distinguished the Supreme Court from other branches of government; “It may truly be said to have neither FORCE nor WILL, but merely judgment…” The judiciary can neither make new legislation nor enforce its decisions. Thus, it must adhere to the letter of the law in order to perform its function well.
In England, 18th century jurists also advised judges to defer to the law, rather than their personal wishes. Sir William Blackstone, whose Commentaries on the Laws of England had a tremendous influence on the Founders as well as the development of American law, stated that “it is an established rule to abide by former precedents, where the same point comes again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law…is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary according to his private judgment or sentiment.” Because England has no written Constitution, Blackstone’s conception of the law is somewhat different from ours. He stresses, however, that personal beliefs should not factor into a judge’s legal decision.
Sir Edward Coke, whose image graces the doors of our Supreme Court, made similar observations over a century before Blackstone. In a passage of his reports, he includes a phrase in Latin which translates to “It is better to judge according to the letter of the law than according to one’s own knowledge and feeling. Ignorance in a judge is a great mischief to the innocent” (trans. Sheppard). Hence, judges who misinterpret the law to fulfill their own wishes do a disservice to their profession.
In contemporary times, the inheritors of this restrained judicial tradition go by the name of Originalists. The doctrine of Originalism was perhaps most successfully expounded by the late Justice Antonin Scalia who argued that judges should interpret the Constitution in light of its original meaning. He once said that “The judge who always likes the results he reaches is a bad judge.” Justices are not meant to tell us what they want the Constitution to say but merely what it does say. According to Scalia, Originalists essentially “believe that the provisions of the Constitution have a fixed meaning, which does not change (except by constitutional amendment): they mean today what they meant when they were adopted, nothing more and nothing less.” Such notions are quite straightforward and common-sense.
Originalism is the doctrine that most of the “conservative” justices on the Supreme Court subscribe to. Far from promoting their personal politics these justices merely interpret the original meaning of the Constitution (which happens to be too conservative for many people).
It is a testament to the success of originalism that those who oppose it are broadly grouped as Living Constitutionalists. Although they come in different varieties, they all argue that the Constitution changes over time. Apparently, the laws have a way of becoming more favorable to the left as time passes. Such a view is often expressed with the obscurity and pseudo-profundity of an academic. While arguing against Scalia, Harvard Law Professor Laurence Tribe, said that “‘the Constitution’ speaks across the generations, projecting a set of messages undergoing episodic revisions that reverberate backward as well as forward in time.” While amendments may alter the Constitution, it does not project alternative “messages” that “reverberate.” In seeking to alter original meanings, Tribe, like so many others, has recourse to poetic jargon.
Fortunately, these seemingly dry academic debates are brought out into the open during actual cases. We are able to see judges using particular theoretical frameworks and how their judicial philosophies influence decision-making. United States v. Jonathan Skrmetti provides a perfect opportunity to see how anything other than Originalism leads to absurdities.
This case, which is currently being litigated, will determine whether or not Tennessee’s law against child transgender surgeries and hormone use is unconstitutional. During the oral arguments, the non-originalist Justice Sotomayor interjected when the Tennessee Solicitor General claimed that transgender treatment causes harm by saying “I’m sorry, counselor, every medical treatment has a risk. Even taking aspirin.” It appears that Justice Sotomayor is so desperate to follow her personal whims, that she is willing to compare deliberate mutilation to taking aspirin.
Similarly, the newest member of the Court, Justice Kentaji Brown Jackson compared banning transgender surgeries to outlawing interracial marriage. She claimed that arguments in favor of Tennessee’s law “sound in the same kinds of arguments that were made back in the day, 50’s and 60’s, with respect to racial classifications and inconsistencies. I’m thinking in particular about Loving, and I’m wondering if you’ve thought about the parallels…as to how this statute operates and how the anti-miscegenation statutes in Virginia operated.” It is Justice Jackson’s willingness to place her own convictions above the law that led her to make such a plainly absurd statement. To a clear thinker, racial discrimination has nothing to do with preventing the sterilization of children. Rather than interpreting the text of the Fourteenth Amendment as it was originally intended Justice Jackson hopes to distort it in order to benefit her ideological allies.
When reading these arguments one is exposed to the intellectual bankruptcy of Living Constitutionalism. Rather than adhering to the letter of the law, leftist judges prefer to force their own will upon the American people. But as Hamilton said, they are supposed to “have neither FORCE nor WILL.”
It is fitting to end with a quote contained in Sir Edward Coke’s Reports: “Meanwhile, farewell Reader; and remember that whoever mocks the genuine sense and force of any law, by scheming or craftiness, is to be considered a violator of the law” (trans. Sheppard).
