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January|February 2005
Originalist Sin By Lincoln Caplan
Lex et Veritas By Harold Hongju Koh

Originalist Sin

By Lincoln Caplan

AS HIS SECOND TERM ADVANCES, PRESIDENT George W. Bush will call for fundamentalism in reading the Constitution. The subject is paramount because, beginning with William Rehnquist's retirement as chief justice, the president is expected to fill more seats on the Supreme Court (four is the common estimate) than anyone since Franklin D. Roosevelt—who appointed nine justices. Bush will set a new course for American law, and he has made clear where his constitutional faith resides.

When he pledged during the campaign to pick justices who know the difference between "personal opinion . . . as opposed to strict interpretation of the law," Bush underscored his alignment with a legal movement that's been gathering momentum for two decades. It's against the right of a woman to choose an abortion and of gay couples to marry. It's for the right of students to pray out loud in school and of the president to detain enemy combatants without due process.

The specifics matter, but the movement is defined by a more general conviction—that justices should read the Constitution as the framers intended, much as fundamentalists believe that Christians should follow the Bible's exact words. The goal of originalists like President Bush is to restore the interpretation of the Constitution that favored laissez-faire economics. This view prevailed until the Roosevelt majority laid the foundation for modern American government by permitting social legislation like the Social Security Act and by expanding the power of the executive branch.

During the Reagan years, the originalists were challenged by evolutionists who regard the Constitution as a living charter that can be understood only in light of how the Supreme Court has interpreted it over time. The fight was joined during the battle over the nomination of Robert Bork. In words echoed by President Bush, Bork, an originalist, accused the "imperial judiciary" of relying on "personal values" to reach "corrupt" decisions. But in response to questions from Republican senator Arlen Specter, an evolutionist, Bork acknowledged that the meaning of the Constitution's key sections is found beyond the text and through legal reasoning.

The Bork defeat is traceable to that exchange, and so is the recent flap over Specter's chairmanship of the Senate Judiciary Committee. Emphasizing both court precedents upholding the right to abortion and the importance of consistent legal reasoning, Specter said that he expected the president not to nominate candidates who favor overturning Roe v. Wade. After his colleagues on the same side of the aisle reported receiving a flurry of calls from pro-life supporters, Specter was threatened with the loss of his chairmanship. Abortion wasn't the primary reason Specter was publicly scolded, however. The greater threat Specter posed was to the president's fundamentalist beliefs about the law.

Liberal scholars regard the persistence of originalism as a sign that constitutional interpretation is now swayed by politics, and they point to Bush v. Gore, the illegitimate 2000 ruling that made Bush president. Some urge the court to use judicial minimalism as a buffer against politics, to make decisions on the narrowest possible grounds. Others argue against judicial supremacy from the left, claiming that only the parties to Supreme Court cases must obey its rulings because "We, the people" have the power to decide which court decisions to accept and which to reject.

Yet just as Democratic churchgoers responded to the 2004 election by disputing the biblical interpretation of their fundamentalist counterparts—there is more authority in the Bible for pushing anti-poverty programs than anti-gay-marriage efforts, they say—legal thinkers across the spectrum will be called on to challenge the Bush view of the Constitution. Their mandate will be to assure that America's constitutional faith is grounded in the rule of law as it's been developed in recent generations and not in a discredited fundamentalism.

THE DEVELOPMENT OF A MAGAZINE is a feat of collaboration, and the inclusion of this one on the Chicago Tribune's list of the country's "best magazines," along with other accolades, is a tribute to many contributors. But Yale Law School deserves special recognition for its enthusiasm when the magazine was proposed in 1994, its support since we incorporated four years ago, and its encouragement since we launched in April 2002. The school is widely considered among the country's best, and it has been a privilege for the magazine to be associated with Yale. The school has supported in particular the magazine's editorial independence and the goal of our eventual autonomy. With Legal Affairs successfully incubated, it's no longer "A Magazine of Yale Law School," as it was formerly identified on the masthead. My colleagues and I are grateful for the confidence the school has vested in us, and we're excited about being fully independent.

Lincoln Caplan is the editor and president of Legal Affairs.

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