Thursday, August 25, 2005

Clueless on Originalism

Kevin Drum on originalism:

ORIGINALISM....Of all the pillars of modern conservatism, the one that has long struck me as the most obviously absurd is the doctrine of originalism. Think about it. Are we really supposed to take seriously the idea that the Supreme Court of 2005 — in an era of spyware, genetic mapping, and billion dollar hedge funds — is supposed to make its judgments based on divining the intent of a small group of men who lived in a simple agrarian community 200 years ago? Presented baldly, it's an idea that wouldn't pass muster with a bright 10 year old.

Marc Lynch even compares Originalism to Islamic Salafism.

Originalism - or the "original intent" approach to Constitutional jurisprudence - sounds very, very familiar to these Middle East expert ears. Basically, it sounds like
Islamic fundamentalist (salafi) jurisprudence.

Islamic jurisprudence after the passing of Mohammed revolved around establishing procedures for interpreting the Quranic message. For most Muslims, this expanded to include the "hadith", or stories about the life and sayings of the Prophet. Competing schools of jurisprudence argued over what sources could be considered legitimate, how to interpret the meaning of the text of the Quran and the Hadith. Elaborate rules were created for establishing the "authenticity" of various hadith - who first told the story, the chain of transmission, how to adjudicate different versions of the same story. Over the course of Islamic history, an enormous and complex body of interpetation and jurisprudence accumulated, divided into distinct
schools. The Islamic reformers - the original salafis - in the late 19th and early 20th centuries - called to sweep away these centuries of accumulated traditions and return directly to the text of the Quran and authentic hadith.

Kevin and Marc are both wrong. For such intellectuals, they fail miserably in understanding constitutional philosophies. Originalists do not believe that the constitution is base on the intent of the founding fathers. Rather it should be interpret literally. This does not mean that the constitution cannot be changed or written in stone. It can be changed through the amendment process. In fact the constitution should be changed to adapt to the time.

However the responsibility for amending the constitution is a legislative responsibility, not a judicial one. Even if a certain provision/article of the constitution is out-of-step with modernity or even outright unjust; Jurists should interpret it as it is written. If the provision/article is unjust, the decision will highlight the injustice. And the outrage electorates will force their elected legislators to amend the provision/article. This process ensure that legislators are responsible toward the electorates and ensure that the new article/provision receive have consensus within society.

Activist judges by interpret the constitution as they see fit, prevent the constitution from being properly amended. The greatest harm of judicial activism is that they takes the debate away from the public realm and prevent the people from participating in the constitutional process.


Blogger Baron Bodissey said...

The problem is that the people who have the most to risk (elected legislators) have abdicated their power to those who face less risk (the judges). That way the politicians are re-elected over and over and get to keep their cushy pleasant jobs with all the perks. Meanwhile the judges get to have fun telling the rest of us what to do in order to catch up with "progressive" modernity.

What a scam.

2:27 PM  
Blogger Pedro said...

If you think about it, without some deference to the concept of originalism -- that is, without a priori accepting that the constitution means what it says -- why even bother having a constitution at all?

5:49 PM  
Blogger MaxedOutMama said...

Excellent post, Minh-Duc.

If the text of the Constitution does not bind the judges and limit their scope, than nothing does. This would not be a society of laws, but a society of men.

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