The Tempting of America

Former D. C. Court of Appeals Judge and rejected Supreme Court Nominee Robert Bork writes in his book, THE TEMPTING OF AMERICA, that what a judge should do when interpreting the Constitution is determine “how the words used in the Constitution would have been understood at the time [of enactment].” This is the “Doctrine of Original Intent” or as it is known ‘Originalism.’” It contrasts with the Legal Process School, which was the subject of my first column and which emphasized the law should be interpreted in accordance with neutral principles derived from the text of the Constitution, statutes, and appellate court opinions with precedential value.

In fact Originalism makes a “cause” out of the intent of the framers to the point where Bork, again in his book says, “no person should be nominated or confirmed [for the Supreme Court] who does not display both a grasp of and devotion to the philosophy of original understanding.”

The justification for the almost religious fervor with which those Academicians and legal writers, as well as the few judges who subscribe to this judicial philosophy promote it is that wholesale subscription by the Bench to Originalism is necessary to curb judicial discretion in order to keep unelected judges from seizing power from the peoples elected representatives. However, as Judge Richard Posner and other legal writers and commentators have pointed out, there is no legal experience or evidence to support the proposition that this is the choice. Indeed, as Posner illustrates and the commentator Ronald Dworkin says, “the question posed by an originalist versus an activist or a pragmatic judiciary is not one of democracy or no democracy, but of the kind of democracy we want.”

Indeed, no court in this Country, including the Supreme Court, has ever been consistently originalist in its thinking. Nor do they need to be. Courts like all other institutions of government must have their decisions accepted by a significant portion of the population they serve in order to survive. The Court’s viability as an institution of government does not depend on its adherence to any particular judicial philosophy of interpretation and certainly not one as esoteric as Originalism.

So far in this space we have looked at the Legal Process School of Jurisprudence and the Doctrine of Original Intent. These judicial philosophies both subscribe, in different ways, to the belief that process is more important than results in interpreting the law. The Legal Process School or Formalism emphasizes being guided by neutral principles derived from the text of the Constitution, statutes, and precedents. That school of jurisprudence presupposes that these neutral principles can always be discerned and then applied to new circumstances correctly and consistently to guarantee fairness and stability. The Doctrine of Original Intent commands law be interpreted in accordance with the intent of the founders. It presupposes that the “original intent” can always be divined by wise judges who should apply it to new circumstances. This process will, in turn, produce results in every situation consistent with what the founders would have wanted to happen in that circumstance.

In this space next time, we will explore judicial philosophies that reject both these theories in favor of result oriented decision-making methodologies. In the meantime, have a joyous Holiday Season and a Healthy and Happy New Year regardless of your judicial philosophy.

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