Many conservatives promote a judicial philosophy called "originalism," according to which the Constitution must be interpreted according to how its words and ideas were "originally" understood. Some think that this is an objective perspective that rises above personal and political beliefs today. In reality, it's clear from how it's applied that it's just a rationalization of personal and political beliefs.

David Bernstein writes:

If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents."

It especially looks like political preference because judicial deference to government exercise of arbitrary power was traditionally a "Progressive", not conservative idea. Conservatives adopted "judicial restraint" as a mantra to attack the Warren Court, not because it's either a conservative or an originalist idea.

Well.... duh. Did Berstein really believe that "judicial restraint" and "originalism" ever amounted to anything else? Has he truly never realized that people on both the left and the right tend to adopt judicial philosophies in order to justify particular conclusions and agendas (even if they are only intuitively or dimly understood), rather than adopt judicial philosophies and follow them wherever they might lead?

We not only shouldn't expect anything else, we probably shouldn't want anything else. Law, including legal philosophy, should be evaluated by its consequences. Legal philosophies which harm people are bad, regardless how appealing they might appear to be in theory. People who adopt a legal philosophy and follow it wherever it leads, even if it leads to harm, are not being "principled" or "objective" — they are be sociopathic.

Principled legal philosophy means adhering to the principle that the law serves the interests of the people and doesn't harm them. People who follow a legal philosophy wherever it leads, even if it causes harm, are being unprincipled.

Not surprisingly, it's Justice Thomas who has expressed the most willingness to try to figure out how to reconcile originalism with the facts created by stare decisis. Let's hope that he succeeds Scalia as the intellectual leader of the conservative majority. I hope that Alito and Roberts, as members of Thomas's generation and not Scalia's and Bork's, will not prove to be "fainthearted."

Thomas, we must remember, has endorsed the idea that individual states should be allowed to establish religions. This is the "originalism" of Thomas which Bernstein would like to see furthered by people like Roberts and Alito. Bernstein doesn't "mean to endorse every vote Justice Thomas has ever cast," but state-level establishments of religions are consistent with an originalist understanding of the Constitution and unless Bernstein means to advance his own version of a "fainthearted originalism," this is one of the conclusions he has to accept as not only legitimate, but required.

This is what happens when one adopts a judicial philosophy and is willing to follow it wherever it leads, even if it leads to harming the people. Such people are unfit for positions of authority within the legal system because they place adherence to abstract philosophies above the needs and experiences of people. Law is not a divine system handed down from on high; it is, instead, a product of human experience — a system designed to regulate human conduct based upon our knowledge of human behavior and human needs. The law cannot extract itself from that context without ceasing to be relevant and legitimate.

 

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