Originalism and the Constitution: does originalism always provide the answer?

• Author: Graglia, Lino A.
• Position: Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism

An endless stream of books and articles is written, and symposia-such as this one--are held, on the ever fascinating and intriguing subject of constitutional interpretation. Obviously, it is a matter of great importance. If the Supreme Court would only adopt the correct method of constitutional interpretation, the Court would get its constitutional decisions right. Because we have arrived at a system of government in which the Court's constitutional decisions determine the most basic issues of domestic social policy for the nation as a whole, there could hardly be, it would follow, an issue of greater consequence.

The dispute over methods of constitutional interpretation, however, is based almost entirely on a fiction, because Supreme Court rulings of unconstitutionality rarely, if ever, turn on an issue of interpretation. The fact is that the Constitution has very little to do with constitutional law. This was true of the Court's first ruling of unconstitutionality in Marbury v. Madison (1) in 1803, of its historically most significant, Dred Scott v. Sandford (2) in 1856, and of the perhaps most significant of its more recent, Planned Parenthood of Southeastern Pennsylvania v. Casey (3) in 1992.

There could hardly be a more purely or egregiously political decision than Marbury. (4) Chief Justice John Marshall sat on a case in which he was personally involved, and berated his political opponent President Jefferson, by finding a violation of a plaintiff's rights in a case in which the Court lacked jurisdiction. He then seized the occasion, probably concocted, to establish judicial review by fabricating a statutory provision that did not exist (5) to find that it violated a constitutional prohibition that also did not exist. (6) In Marbury, Chief Justice Marshall established not only judicial review, the power of judges to invalidate policy choices made by other government officials, (7) but also that ordinary standards of integrity, truth, and logic do not apply to Supreme Court decisionmaking. Judicial review was born in sin and has rarely risen above the circumstances of its birth. (8)

Judicial activism in constitutional law can most usefully be defined as a court declaring unconstitutional a policy choice that the Constitution does not clearly prohibit (9)--"clearly" because in a democracy the view of elected legislators should prevail over the view of unelected judges in cases of doubt. (10) By this definition all or nearly all Supreme Court rulings of unconstitutionality are activist. Belief in the Court's insistence that such rulings are based on an interpretation of the Constitution can be likened to the belief in the fable of the Emperor's new clothes. (11) Both beliefs are based on a need strong enough to overcome reality: the need to believe or be seen to believe a quasi-official opinion.

The Emperor's tailors were clever enough to convince him that they had made him a beautiful, though invisible, new suit of clothes. (12) Unable to believe, or unwilling to admit, that their Emperor had been fooled, his loyal subjects also admired the clothes until an innocent child, heedless of politics and propriety, pointed out that the Emperor was naked. (13) The Court is analgous to the Emperor's tailors in regard to its rulings of unconstitutionality. Although such rulings are obviously pure policy judgments, the Court wraps them in imaginary constitutional prohibitions, which professors of constitutional law, like the Emperor's loyal subjects, then claim to see, in the confident expectation that few others will be bold or observant enough to point out that the alleged prohibitions are entirely imaginary.

The only significant difference between the Emperor's tailors and the Court is that once the child pointed out the nonexistence of the clothes, everyone agreed that the Emperor was indeed naked. Pointing out that the Court's rulings of unconstitutionality are baseless and simply expressions of the policy preferences of a majority of the Justices-as all candid observers have done from the beginning (14)--seems not to make the slightest difference. The need to believe is simply too great, for the alternative is to admit that the rulings are pure policy judgments that should be left to elected legislators subject to majority will, the bete noire of the liberal American intellectual.

Proponents of activist judicial review cannot simply admit that they prefer policymaking by judges--a version of Plato's government by philosopher kings (15)--to policymaking by elected legislators, at least on some issues of basic social policy. Nor is it possible to argue that the Court's rulings of unconstitutionality are mandates of the Constitution in any ordinary sense. Liberals continue, therefore, to devise in a flood of books and articles ever more subtle and clever methods of constitutional interpretation, which purport to show that the Court's rulings of unconstitutionality can be somehow connected to the Constitution and therefore are not pure policy judgments. Their only effect, however, is to obscure the fact that nothing was being interpreted.

The Constitution is a very short document, much of it obsolete, easily printed with all amendments and repealers on a dozen or so pages, and very little of it is even purportedly involved in most putative constitutional decisions. Most rulings of unconstitutionality involve state, not federal, law, and nearly all of those purport to be based on a single constitutional provision (the Fourteenth Amendment), a single sentence of that amendment (the second sentence of the first section), and ultimately on one of two pairs of words ("due process" and "equal protection"). (16) Recognition of this fact should be enough in itself to end debate about methods of constitutional interpretation. No one really believes that the Court decides a myriad of complex and difficult issues of social policy by studying those four words. What, for example, was Justice Blackmun interpreting in Roe v. Wade, (17) "due" or "process"?

The Court has purported to find in those two pairs of words justification for its seemingly unlimited policymaking power. The words are said to be "open-ended," (18) which is true, but only because the Court made them so by depriving them of their intended meaning or any specific meaning. The oxymoronic doctrine of "substantive due process" was invented to convert the Due Process Clause from a guarantee of procedural regularity to a prohibition of any limitation of liberty--that is, any legislative policy choice--the Court considers "'unreasonable." (19) The Court similarly converted the Equal Protection Clause from a requirement of equal law enforcement into a prohibition of any classification or discrimination--that is, again, any legislative policy choice--the Court considers "unreasonable."

The result is to transform the two clauses from meaningful restrictions to simple transfers of policymaking power from legislators to judges. The Court thus granted itself the power to remove any policy issue it chose from the ordinary political process and assign it to itself for final decision. No debate about methods of interpretation can change the fact that the Due Process and Equal Protection Clauses were not meant to be what the Court has made of them--carte blanche grants of judicial policymaking power. If the Fourteenth Amendment could be restored to its original meaning as a federal guarantee of basic civil rights, the result would be to greatly reduce the scope of constitutional law and reinstate the constitutional system of representative self-government in a federalist system created by the Constitution.

If further proof of the irrelevance of the Constitution to constitutional law should be needed, it can be shown scientifically. A scientist can determine whether it is chemical X that causes a certain solution to turn blue by simply compounding the solution again without chemical X. If it still turns blue, he can conclude that chemical X is not the operative agent. Though controlled experiments are rare in the social sciences and law, one has, in effect, occurred on the issue of the constitutionality of school racial segregation. Everyone knows, or thinks they know, that the Equal Protection Clause was the basis for the Court's holding that school racial segregation was unconstitutional in Brown v. Board of Education. (20) What if it were possible to test that hypothesis by running the case again without the Equal Protection Clause?

As if to serve the cause of science, this is what in effect happened when on the same day as Brown, the Court also decided Boiling v. Sharpe, (21) involving school segregation in the District of Columbia, to which the Equal Protection Clause does not apply. (22) That fact had no effect on the result. School segregation was also held unconstitutional--the liquid still turned blue!--in the District of Columbia, (23) only now, the Court told us, because it is prohibited by the Due Process Clause of the Fifth Amendment (24)--which would seem to make the Equal Protection Clause of the Fourteenth Amendment, which also has a Due Process Clause, irrelevant. We must be willing to believe that a provision adopted in 1791 as part of a Constitution that recognized and protected slavery also prohibits racially segregated public schools. (25) The Due Process Clause just happened to be, the Court apparently thought, the best constitutional provision available. If Due Process was not available, the Court simply would have had to resort to some other instrument--perhaps the prohibition...