Antonin Scalia, in his speech Originalism: The Lesser Evil, asserts that practically uncountable cases in U.S. judicial history have been rendered “not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.”
Judges using this desirability-of-outcome approach, often rely on what they believe to be, in Scalia’s words, “broad Constitutional values” or on some set of uncatalogued “fundamental values” of the Nation.
According to Scalia, the record is full of judges who get the results they want and then reason backwards to their premises and justifications. The judges achieve their outcome-based goals by “ignoring strong evidence of Original Intent” where it suits them, and sometimes making no pretense of historical support at all. Scalia makes it sound as if it’s the vast majority of judges who act this way, declaring that it is the “inevitable tendency of judges to think that the Law is what they would like it to be.”
DRAWBACKS OF THE DESIRABLE OUTCOME APPROACH
The “main danger” of the Desirable Outcome Approach, states Scalia, is that “the judges will mistake their own predilections for the law.” Scalia seems to include himself when he admits that “avoiding this error is the hardest part of being a conscientious judge.” Nevertheless, judges must refrain from a “personalization of the Law.”
“It is very difficult,” says Scalia, “for a person to discern a difference between those political values that he personally thinks most important, and those political values that are ‘fundamental to our society’.”
The Constitution, he continues, was not established as “a novel invitation to apply current societal values”— but just the opposite… to ensure that the core –the foundational– values of the Country are neither forgotten nor ignored.
If and when, after thoughtful reflection, the People wish to reject, change, or augment the old-time values of the Constitution, then it is right that they should do so. But in a Democracy, the appropriate venue to initiate such changes, believes Scalia, is through the People’s representatives in the Legislative Branch of Government. In spite of the apparent stability of fundamental Human Nature over Time and Place, history has proven that it is quite possible that the values of Society may change as Society changes. Even so, says Scalia, “the Legislature would seem a much more appropriate expositor of societal values” than the unelected, and virtually untouchable, members of the Judiciary Branch.
One alternative to the Desired Outcome Approach of jurisprudence, is “Originalism.” Originalism is closer to, and largely overlapping with, the approach championed by an older Scalia called “Textualism.” Under Textualism, very little outside the actual words of the law, as they were most likely understood at the time of the law’s adoption, are ever considered. Originalism includes the Textualist approach, but is broader…
Scalia explains that an Originalist would arrive at his decisions by examining not only the text of the law in question, but the debates surrounding the passage of the law. Also, the speeches, essays, or other opinions of the lawmakers or ratifiers who passed the law might be examined. Originalists might look at the tradition surrounding the subject under consideration, and how those who enacted the law might have viewed the law in the context of that tradition. They might even look as far back as the English legal tradition when it comes to certain long-standing phrases or traditional governmental powers. Even the laws or constitutions of other jurisdictions at the time of the law’s adoption might be considered.
Scalia believes that, of all the imperfect ways of interpreting and applying the Law, Originalism is “the lesser evil.” For one thing, since we possess a Government composed of the People’s representatives, the updating of laws to reflect evolving “current values” can be handled, and handled more democratically, via the Legislative branch. “Originalism,” says Scalia, “seems to me more compatible with the nature and purpose of a Constitution in a democratic system.”
From what I gather, Scalia views a Constitution in a Democracy as serving a purpose almost OPPOSITE to that assumed by those who contend that the meaning of the Constitution should change with the times. Instead of a “living Constitution,” Scalia appears to advocate a Constitution more inert– something like a rock to cling to, or an anchor to steady us, through all the storms of the democratic process. “The purpose of Constitutional guarantees of individual Rights,” explains Scalia, “[…] is precisely to prevent the Law from reflecting certain changes in Original Values that the Society adopting the Constitution thinks fundamentally undesirable.” Sure, such alterations in core values are possible with a rock-solid interpretation of the Constitution, but only through the Amendment process. Thus, before the masses, perhaps in a fit of passion or fear, toss overboard the old-school values upon which this great nation was founded, they must give pause and, as Scalia says, “devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.”
Scalia admits that even the historical research of the Originalists may produce “inconclusive” results and require a court to make a best-guess call at the end of the day… But Scalia is convinced that the Originalist approach will typically “lead to a more moderate rather than a more extreme result.” Of course, ultimately, we are led back to a matter of personal opinion– as what is “moderate” to one person may strike another as quite extreme.
If what Scalia wants is a court issuing decisions which are never SURPRISES, he may, himself, be surprised to learn that some of his own interpretations of the law are quite “surprising” to legal scholars. I, myself, who consider Scalia one of the greatest jurists in American history, have played the game of trying to predict how he would vote on an issue, and came away several times surprised by his line of reasoning and by which side he came down on (although, that said, Scalia always has a reasonable explanation for how he arrives at his opinion– only thing is, I think there are often SEVERAL reasonably arrived-at opinions for any particular case).
PROBLEMS WITH ORIGINALISM
As Scalia is the first to admit, even Originalism is “not without its warts.” Among Originalism’s drawbacks, from the standpoint of the judge, is that the approach requires a heckuvalot of work! “It is often exceedingly difficult to plumb the Original Understanding of an ancient text,” says Scalia. “Properly done, the task requires the consideration of an enormous mass of material.” The Originalist approach “requires immersing oneself in the political and intellectual atmosphere of the time– somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task sometimes better suited to the historian than the lawyer.”
Furthermore, as mentioned previously, even after hours upon hours of historical research, it may still prove impossible to arrive at an airtight opinion as to the precise meaning intended by a law, or even of a phrase within a law. The “greatest defect” of Originalism, says Scalia, “is the difficulty in applying it correctly.”
Another drawback to Originalism is that is sometimes, in Scalia’s phrase, “medicine that seems too strong to swallow.” By this he means that, unlike the Desired Results Approach, Originalists judges may find themselves– though scrupulously following the law and the intentions of the lawmakers– rendering decisions which appear unjust or even inhumane.
One of the starkest hypothetical examples of such a situation is that in which a judge, following the doctrine of Originalism, decides that “public lashing” was not generally considered “cruel and unusual punishment” at the time of the Constitution’s composition and ratification, and so allows the procedure to go forward.
Says Scalia… “Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any Federal judge–even among the many who consider themselves Originalists–would sustain them against an Eighth Amendment challenge.”
So what’s a good Originalist to do?
ORIGINALISM v STARE DECISIS
Scalia finds that Originalism works best if watered down with a bit of Stare Decisis. Under the principle of Stare Decisis, judges grant great respect to previous court, and attempt NOT to overturn precedents unless absolutely necessary. Almost every Originalist, says Scalia, would “adulterate” the pure application of Originalism with the doctrine of Stare Decisis.
Thus, declares Scalia, “Originalism will (as the historical record shows) end up as something of a compromise.”
Scalia’s respect for Stare Decisis is not altogether in conflict with his fundamental approach to the law– an approach that really goes deeper than Textualism, Originalism, or Stare Decisis. Scalia is a creeper– and I mean that in the best possible sense… That is, he does not think the Law should move in leaps and bounds, but that it should creep forward. The Law, as applied by judges, should rarely if ever make sharp, sudden turns. The laws benefit Society most when it is well-known and predictable in its application.