Textualism: A Bulwark of Democracy

A photo of the Constitution of the United States of America.

At the University of Dayton, Justice Antonin Scalia remarked that “the paramount truth of democracy is process.” The judiciary comprises an essential part of this process. However, non-originalist methods are fundamentally tainted by personal preferences, failing to uphold an objective process. Living constitutionalism posits that the meaning of the Constitution evolves based on social norms. How does an unelected, socially removed panel of judges determine what societal norms are? If a poll showing majority support is sufficient, why don’t the people themselves democratically enact change? Such nebulous standards are merely a guise for judicial preferences. Pragmatism determines cases based on the perceived best outcome. However, because what is practical is subjective, the law becomes subjective as well. The effect of these non-originalist methods is a lack of judicial integrity, the presence of majoritarian tyranny, and a degradation of the Rule of Law.

A free society rests on a Hayekian conception of the Rule of Law, where individuals must be able to predict government action to plan their own activities. If the law’s meaning ebbs and flows based on a judge’s personal preferences or the immeasurable shifting of social norms, individuals lack a definite set of rules upon which to rely, enabling arbitrary government action threatening liberty. To exchange the text of the law for judicial preference is to have no law at all. 

Sweeping judicial policymaking under non-originalist methods is unnecessary. If society deems the current law to be a hindrance to their desired end, amendments or new laws can be passed to properly achieve this end. By determining for itself what the law ought to be through non-originalist methods, the Court usurps democratic powers previously left to the people. With the Constitution no longer a barrier to judicial policymaking, justices are appointed based on moral views rather than legal qualifications, resulting in increasingly contentious appointment hearings. Beyond the appointment process, Congress has attempted to pass laws teetering on unconstitutionality, hoping that a court, driven by pragmatism over originalism, will green-light such legislation. A prime example of this phenomenon is NFIB v. Sebelius (2012), where Justice Roberts pragmatically classified the Affordable Care Act as a tax rather than commerce to avoid overruling President Obama’s signature policy achievement. Public perception then shifts from legal judgment to partisan preference, contributing to declining confidence in the Court following partisan cases such as Dobbs v. Jackson (2022).

The usage of non-originalist methods effectively nationalizes moral questions. Per Federalist No. 51, our system of federalism protects the minority from the tyranny of the majority by creating two layers of government. The states can resist the federal government when it overreaches, and vice versa, with each having separate constituencies and officials. Non-originalist methods reject the flexibility of federalism for the misattributed “flexibility” of evolving social norms. By construing rigid individual or governmental rights from the Constitution where they do not exist, living constitutionalism imposes a strict morality upon the entire country. Alternatively, such matters could be determined flexibly by the individual states, allowing them to be the “laboratories of democracy.” For example, Roe v. Wade (1973) imposed the three-trimester system for abortion, a deeply personal and moral issue, onto all fifty states outside of the democratic process. Judicial decisions ought not be a matter of desired outcomes, but of institution-preserving processes.

One might say, however, that this nationalization of morality through living constitutionalism merely protects liberties—an overexpansion of liberties is surely more harmful than unrighteous curtailment. This is false. In Kelo v. City of New London (2005), the Supreme Court allowed a city to seize private property through eminent domain. The Court expanded the definition of “public use” well beyond its original 18th-century meaning, weakening private property rights.

All of this is not to say that originalism is perfect. The originalist, like the living constitutionalist or pragmatist, can arrive at an end through improper means such as committee reports, floor speeches, or private communications. Only legislation passed by democratically elected representatives carries the full weight of law. While individual legislators might possess their own original intent for a law, the original intent of the entire legislative body can be found only in majority-passed legislation. The most proper historical evidence to utilize is documents ascertaining the commonly understood meanings of legislative language, such as in D.C. v. Heller’s (2008) dissection of the Second Amendment. Judges who cherry-pick historical documents to create an original intent separate from the meaning of the law itself are no better than non-originalists. However, textualist originalism, when utilized properly, is the only method of judicial decision-making that provides an objective marker—the text of the law—to constrain judicial preference.

By adhering to textualist originalism, the judiciary protects the Supreme Court’s integrity, preserves democratic accountability, and ensures the Constitution remains a predictable, stable guide for society. While society might agree on a desirable end, a law-based process must be used to achieve it.