Originalism Versus Objectivism

The modern day debate over the interpretation of the constitution by Justices boils down to Originalism versus Objectivism. Conservative Supreme Court Justice, Anthony Scalia, is often revered as the classic originalist; meanwhile all progressive Justices routinely follow the concept of objectivism when deciding cases.

The originalist interpretation of the constitution is very narrow and rigid. They apply the original text of the constitution to any case. In other words, an originalist is not influenced by their personal beliefs, and other external factors including changes in society, current events, or any scientific studies that may influence decisions. Originalists believe that there is a means to amend the constitution if there needs to be changes to update and modernize the document. Originalist Supreme Court Justices also believe their power is limited and most power in the judicial system resides within the states. For instance, Scalia does not believe that the Supreme Court has the jurisdiction to rule on many social issues including abortion. He believes that the individual states should be making these decisions. In fact, it would not be surprising if he felt that the individual states and not the federal government should decide on matters such as healthcare and immigration laws for its citizens. An originalist is often referred to as a constitutionalist: a person that interprets the text in the same light as our founding fathers.

On the other hand, objectivists such as retired Supreme Court Justice, David Souter, have not only a very broad interpretation of the constitution, they believe that their interpretation is fluid and can constantly changing over time. In essence, an objectivist can change their mind over time based on their personal experiences, current events, and modern society norms. There is no question that there have been many Supreme Court decisions over the history of our great nation that have overridden previous precedent. Thus, one could easily surmise that the Supreme Court has mostly followed Souter’s objectivist philosophy over the years. The originalist will argue that objectivism is flawed because it gives Supreme Court Justices too much power to create laws (The constitution clearly states the legislative branch enacts laws, not the judicial branch) instead of ruling on the law.

One key argument made by objectivists is that many our freedoms may conflict. For instances, freedom of speech may conflict with other personal freedoms. For example, a person that posts information on the internet that teaches people how to get away with pedophilia behavior may be considered practicing a questionable form of free speech. In this instance, the originalist would rule in favor of protecting the person’s first amendments rights, whereas, the objectivist may view modern technology as a means to constrain what is protected free speech. The originalist is however, correct. Law enforcement could police those using the website and capture anyone that is physically carrying the words used on the internet. Remember, it was objectivists who expanded freedom of speech to cover things such as freedom of ‘expression’. Thus, objectivists would not have a problem with an individual burning an American Flag or protesting in the nude. This only confuses matters as to what ‘expression’ is legal and what is illegal. A pedophile that follows the instructions on the internet site may claim they are only ‘expressing’ their first amendment rights.

One classic example made by objectivists that wrongly exhibits the flaws of the originalist’s philosophy is segregation. Objectivists point out that we would still live in a segregated society if originalists ruled solely on the words in the constitution. This is a bunch of nonsense! First, the Supreme Court ruled that no school can deny anyone access. When this failed to stop segregation (blacks still decided to go to black schools), the court then overstepped its bounds by ruling school districts had to bus students to schools to meet quotas. Many lawsuits drafted against this legislation were made by African-Americans who did not like the fact their kids sat on buses up to 4 to 6 hours daily. Secondly, states would have naturally evolved and ended segregation over time. The great economist, Milton Freidman, proclaimed that businesses and colleges that did not end segregation would have eventually been forced to or gone bankrupt. Thirdly, things progress faster without federal government interference. Once the government gets involved, people will fight it passionately, case in point, the recent healthcare reform legislation and the Arizona immigration law. Fourth, the civil rights act was passed merely 5 years after the Supreme’s Courts last interpretation of segregation laws. Fifth, states adapted similar segregation laws as the federal government and sixth, the nation most likely would have drafted as an amendment to the constitution to end segregation. Once again, the originalist point of view is the correct one, there were plenty of other legal avenues to get segregation abolished and to have it abolished in a timely matter. In essence, the Supreme Court overstepped its power and authority in the constitution to not only rule on segregation, but to create legislation on the issue.