The debate over Constitutional interpretation keeps clawing its way back into American political discourse, and, in this debate, two factions have risen to prominence. In one corner we have originalism, espousing an objective and literal interp retation of the original meaning of Constitutional text. In the other corner is judicial activism, an ad hoc philosophy holding that interpretation based on personal feelings and contemporary understandings is necessary to help an archaic document adapt to modern times. Such a philosophy brought us the land mark decisions of Roe v Wade and Obergefell v Hodges. So judicial activism deserves a round of applause, right? Wrong! Indeed, emphatically wrong.
Giving women such agency and guaranteeing the ability to marry who you love may sound like a win for individual liberty. But looking through the trees, these ostensible victories are overshadowed by the seriously undemocratic methods through with they were acquired. In both these cases, judicial activists on the Supreme Court simply declared rights via substantive due process – a recently invented legal idea that claims some non-enumerated liberties are so important that nothing suffices to take them away. And these select liberties are arbitrarily decided by the withering figures that sit on Supreme Court. Antonin Scalia best expounds the idea as “a theory that does not make any sense.”
But the greater implication is more profound. As said by Thomas Jefferson, “the Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” And this core goal of judicial activism entails some obviously dangerous stuff. For example, when judicial activists established unequivocally the right to abortion in Roe v. Wade, they set a precedent for future judges to also make up new rights not listed in the Constitution. If pro-life judges occupy the court in the future, the precedent has been set for them to overturn Roe v. Wade and declare the right of the fetus to life through substantive due process. Judicial activism renders the legal framework of our republic little less than a partisan shill, grounded in no principles but the whims of political trends.
The Constitution should not bend to the whims of the American populace as judicial activism suggests, lest we allow our emotions and knee-jerk reactions to corrupt it. This is precisely how the “separate but equal” doctrine of Plessy v Ferguson came to be. But being such a rooted philosophy, constitutional originalism transcends partisan influence. Justice John Marshal Harlan, notorious white supremacist and slavery advocate, was the sole dissent in Plessy v. Ferguson because of his adherence to originalist interpretations. That is the perennial power of interpreting the Constitution as it is and not as you want it to be – there is no room for corruption, no room for moral or ideological fallibility. Where the Constitution truly has neglected to protect individual freedoms, it offers the process to amend itself in Article V. Ignore those ever persistent platitudes of the “breathing document.”