The Supreme Court has recently made some interesting decisions, many of which are based on a conservative legal philosophy best represented by the Federalist Society. Indeed, all six of the conservative justices on the court have ties to the Federalist Society and its approach to the law.
This philosophy is aptly represented by a description on their website — they believe “that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” This has also commonly been used as a defense of recent judicial decisions that many might consider extremely conservative, such as the ruling on Dobbs v. Jackson or the more recent affirmative action rulings on Students for Fair Admissions v. North Carolina and Students for Fair Admissions v. Harvard College.
The approach to the law and justice is not only a more textual interpretation of the United States Constitution, but it is also a dangerous philosophy in an era of change and increasing strides toward justice.
An extremely important division between those who might be considered liberal or conservative in their respective views of the law is illustrated by the Federalist Society’s beliefs about the Constitution and how it should be interpreted. They believe that the law is static and unchanging since its establishment.
Additionally, those who are given the power to make judicial decisions should not make them considering the contemporary context to which they are being applied, but should instead place themselves inside the original text itself, and should focus their debate on the intent behind the original meaning in the text.
This legal philosophy also goes by the name of originalism. Originalists hold that our legal texts should be interpreted in judicial decisions by the meaning that was given to them and was understood at their adoption. But in this article, I want to explore the deeper meaning behind these arguments surrounding originalism and textualism.
In former Supreme Court Justice Thurgood Marshall’s 1989 bicentennial speech, he advocated against treating the Constitution as a holy document. Rather than blindly accepting patriotic arguments that the document should be celebrated for its protection of liberty and justice, he instead made an argument for caution. He said that some people “may more quietly commemorate the suffering, struggle and sacrifice that have triumphed over much of what was wrong with the original document.”
If we accept that the Constitution is static and that statutes should be interpreted as how their creators intended them to function at the time of passage, we lose the justice and equality that results from fixing our legal mistakes. Marshall concluded his speech by saying “I plan to celebrate the Bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.”
Conservative legal scholars may attack today’s progressive justices for abandoning the central beliefs of the Founding Fathers. What these scholars fail to recognize, however, is that the Constitution was never intended to be a document written in stone and revered, but a living representation of our democracy at each stage of its development. If you were to read the majority opinions that were produced in Dobbs v. Jackson, you would hear the conservative justices talking about a more literal interpretation of the words in the Constitution when they say that it does not protect the right to an abortion.
But if we treat the Constitution as non-static and its protections of liberties and pursuits as flexible writing that can be revised and edited via court opinion, then there is more room for the personal liberties of women to have rights over their own bodies. Indeed, this is the argument that the dissenting liberal justices made.
We would not expect — as adults — to follow the moral principles of a child or a toddler. Their brains are still developing, and they still have much more to learn before fully developing a moral philosophy. In the same way, we must reduce our reverence for a document that was crafted at this nation’s infancy.
At that time, many of the moral perspectives on liberty, justice and equality were still in their infancy, and many evil indications and horrible perspectives were placed in the founding document. We should, instead, treat the Constitution and laws passed as a whole living creature that learns, grows and changes its mind, and so we should base our legal opinions on the growth and life of our legal code — not get trapped in the past.
Sean Reichbach is a senior majoring in economics and philosophy, politics and law.