JMC fellow Carson Holloway argues in the Public Discourse that interpreting the Constitution based on its original meaning is the surest protection against politically active judges. As Holloway shows, James Madison recognized the deference future generations owe to the Framers’ views because of the benefits the founding Constitutional vision wrought. Reliance upon given norms and rules, according to Holloway, is an essential aspect of human societies, and the American regime is no exception.
In Defense of Originalism
By Carson Holloway
From the Public Discourse
These days, popular and scholarly debates about constitutional interpretation and the role of the courts in our public life are dominated by the clash between originalists and living constitutionalists. Originalists hold that the Constitution should have a fixed meaning, that it ought to be interpreted according to the mind of those who wrote and ratified it. Living constitutionalists contend that our fundamental law should evolve, that it should be understood in light of contemporary values.
This constitutional divide closely corresponds to our political divide. Conservatives tend to be originalists, and liberals tend to be living constitutionalists. This is not very surprising, given the general dispositions of the people in question. Conservatives are inclined to revere the past and to treat it as authoritative. It is no wonder that when they become constitutional lawyers, they will be attracted to originalism. Liberals are interested in progress, in moving beyond a past that they regard as morally inadequate. It is reasonable that liberal lawyers would be inclined to the living Constitution.
This relationship between political orientation and preferred method of constitutional interpretation naturally makes us wonder whether politics is really driving the decisions of those who are entrusted with authoritatively interpreting the Constitution. Is constitutional law just politics by other means? This is a troubling suggestion, because we generally expect judges to be the neutral servants of the law, doing its bidding and not using it as a vehicle for their own substantive judgments about what is good or just.
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Carson Holloway is a Visiting Scholar in the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. He is also an Associate Professor of Political Science at the University of Nebraska at Omaha, where he has taught since 2002. He received a B.A. in political science from the University of Northern Iowa in 1991 and a Ph.D. in political science from Northern Illinois University in 1998. In 2005-2006 he was the William E. Simon Visiting Fellow in Religion and Public Life at Princeton University’s James Madison Program in American Ideals and Institutions.
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