Supreme 'Originalism'

Article excerpt


As the third term of the new Roberts Court is under way with several important cases on its docket, this is an appropriate time to consider and celebrate our nation's commitment to the rule of law. It is in that spirit that the Federalist Society has just published a remarkable new volume of essays and debates titled "Originalism: A Quarter-Century of Debate," as part of its 25th anniversary commemoration this week.

The legal philosophy of "originalism" should be instinctively familiar and obvious to every American - even if the word itself is not. When

two people enter into a contract, common sense dictates that the contract should be enforced in light of the parties' original understanding of their obligations, as reflected in the words of that document. It would be unfair - not to mention lawless - for one party to add or subtract words to or from the contract, to manufacture a completely new meaning for certain contract terms, or to just ignore the words of the contract altogether.

In short, contracts should be interpreted in good faith. And our Constitution, of course, deserves no less respect.

Properly understood, originalism knows no political ideology or partisan loyalty. Just as there are conservative lawyers and judges who believe in originalism, there are moderate and liberal ones who believe the same.

Originalism has come under attack in recent decades, however. Dominated by political liberals, opponents of originalism argue that courts should adhere to certain political viewpoints. The motivation behind these attacks is simple: Unable to implement certain policy views through the democratic process established by our Founding Fathers, some hope to force their will onto the nation by judicial fiat.

Of course, these opponents of originalism don't put it so bluntly. Instead, they turn the tables and claim, ironically, it is the originalists who are substituting personal ideology for law. For example, the New York Times recently suggested that originalist judges rule by simply asking one question: "What outcome would a conservative Republican favor as a matter of policy? …