Thomas Gordon


Thomas Gordon (LLB Law, Newcastle University)

‘To look for the original meaning, or not to look for the original meaning?’ That is the question on literally a few people’s lips. That the US Constitution is ‘living’ is a fact. Judicial interpretations of laws such as the Commerce Clause have changed over the past 200 years, and continue to do so. Whether or not ‘Originalism’ should be preferred is merely an academic debate. Even the supposedly originalist judge Justice Scalia does not absolutely prioritise original meaning when stare decisis makes it impractical to do so.

Indeed, the ‘Living Constitution vs Originalism’ debate is a smoke screen for the highly political impulses lying beneath such rhetoric. Take, for example, the above mentioned Justice Scalia in Lawrence v Texas. In this case, the majority declared a state law banning sodomy between consenting homosexuals to be unconstitutional. Dissenting, Scalia used reasoning based upon the ‘rational basis’ approach found in substantive due process jurisprudence. He therefore implicitly accepted a line of jurisprudence arising NOT from Constitutional text, but a theorising footnote from Carolene Products. Presumably ‘stare decisis’ was the reason behind this.

However, the same judge is all too ready to let the world-and-his-wife know about how he would overturn Roe v Wade. The time difference between Roe and Carolene Products, if stare decisis is a great concern, is 35 years (a small proportion in the, admittedly young, life of the United States). There have been other major cases paying lip service to Roe as well (most notably Casey). Its international fame and judicial acceptance means that Roe is one of the most embedded decisions in US Constitutional law.

Why is there a difference in approach between the two cases?

The clear answer is personal politics. Scalia’s opinions favour socially conservative results. This would be acceptable if a defensible method were consistently used to reach them. However, he does not do this. Scalia criticises Roe by saying that the right protected in that case is not found in the Constitution, but dissented in Lawrence using a form of reasoning that is judicially invented.

What is even more ugly, beneath the attractive velour of originalist rhetoric, is that he is a judge showing a level of self-belief that is actually destructive of the republican philosophy he supposedly supports. Republicanism is an approach to governance where ultimate power rests with the people. The democratic legitimacy theory behind Originalism, that the government should only have the powers that the public thought they were giving it when they voted upon the Constitution, is therefore rested in republicanism. However, Scalia is too ready to ignore the powers that people currently think should lie with central government. The fact that Roe has not been overruled by Constitutional Amendment shows a level of acceptance by the American public that ought to be respected.

Additionally, he is incredibly ready to support invented legal categorisations, as he did in the ‘Obamacare’ decision Sebelius in relation to the Commerce Clause, to strike down a President’s signature piece of legislation. This hardly shows a willingness to respect the idea of a social contract between the governed and the governing that he would sometimes like people to believe.

A judge that did show a willingness to respect the democratic process was Justice Jackson. Two of his key decisions – Steel Seizure Case and Wickard v Filburn, allowed current politics to decide upon the constitutionality of federal action. This approach is preferable to Scalia’s legalistic methods. This is because when a case reaches the Supreme Court, the federal level of government is determining the Constitution’s meaning. However, it is the only branch of the Federal Government that is not elected by the public. Therefore, where federal legislation appears to be Constitutional (as the Obamacare legislation appeared to be acceptable under the Commerce Clause), the nuanced debate over the extent of governmental power should rest with the elected branches’ wishes, as Justice Jackson recognised in both of the mentioned cases. Moreover, Justice Scalia does not have a defensible method that he remains loyal to. He is unpredictable, and ultimately is willing to usurp elected decision making for his own personal preferences. His stated desire (to prioritise self governance as a value) is better served by a more lenient Jacksonesque approach than the one he currently takes.