Steven Calabresi (my colleague at Northwestern) writes about originalism in the Wall Street Journal (it is available free here):
The Right Judicial Litmus Test
[T]he proper basis on which we should evaluate the Court’s performance in this term and in the future is not whether it reaches “conservative” or “liberal” results in constitutional cases, but whether it reaches results that are faithful to the Constitution as written and understood at the time of its adoption. Likewise, the test for presidential candidates on the judiciary should be whether they can be trusted to nominate Justices who will follow our written Constitution.
The belief that judges and Justices should decide constitutional cases on this basis is known in academic circles as “originalism.” This approach may seem so obvious that it should hardly need a name, let alone a defense.
Nevertheless, analysis of whether this was or was not what the Justices did was strikingly absent from most of the discussion about the Court’s last term. Indeed, the possibility that judges and Justices can even decide cases on the basis of the Constitution as written is the view only of a small, though growing, minority in the legal academy. Originalism is often dismissed as either hopelessly naïve or as cynical obfuscation. . . .
In fact, much of the complaining by the left about the Supreme Court’s decision last spring to uphold the federal partial birth abortion statute was that it was not a faithful effort to apply the Court’s abortion precedents as they had previously been understood. Many on the left claimed this was a profound threat to the rule of law.
There is no good reason, however, to think that the rule of law requires us to follow newly-minted Supreme Court precedent but not the Constitution. To the contrary, it is crystal clear that there will be many times when the exact opposite is the case.
The Court’s own power to decide constitutional questions derives only from the Constitution’s status, together with treaties and federal statutes, as “the supreme law of the land.” The Constitution’s character as law makes it binding on the courts of law, including the Supreme Court. This is what empowers those courts to decide what the Constitution means.
Accordingly, the Supreme Court must have the duty and power to overrule its own unconstitutional precedents, just as it has the duty and power to disregard unconstitutional statutes and treaties. This authority is well established and indeed has been recognized since the earliest days of the republic.
This authority is also a practical necessity. Because the Court is composed of human beings, it is inevitable that it will make mistakes. This includes big mistakes about the meaning of the Constitution that, left uncorrected, work a continuing, significant distortion on how our government functions. This is exactly what happened, for example, in Plessy v. Ferguson, where the Court upheld a law requiring segregated rail cars that violated the words of the Fourteenth Amendments.
One solution to a mistake like Plessy might be a constitutional amendment. But while amendments to overturn Supreme Court decisions have been proposed thousands of times in the 218 years of American history, only four have passed. A constitutional amendment can currently be blocked by one house of the legislature in 13 states. The 13 least-populous states comprise less than 5% of the U.S. population. In other words, an amendment could be supported by 95% of the population and yet it could still be blocked, even if all the amendment did was to restore the original meaning of the Constitution.
Thus, a constitutional amendment outlawing segregated schools, for example, would never have passed in 1954. In situations like this, fidelity to the Constitution and the rule of law absolutely demanded that the Supreme Court be able to correct its own mistake by, as in this situation, overruling Plessy root and branch.
Calabresi’s WSJ op-ed launches a newly published collection of essays on the rounds of the originalism debate that Calabresi and the Federalist Society helped to initiate a quarter century ago.
Although that debate has influenced my thinking considerably, I have trouble fully embracing any particular strand either of originalism or of the idea that used to be called the “living Constitution.” As I get older, perhaps I might acquire enough wisdom on constitutional issues to develop a coherent judicial philosophy—or perhaps all that will happen is that my hair will become thinner and grayer.