Why Originalism Matters (Part IV)

Levels of Scrutiny:

There are many levels of scrutiny applied by the Court and it depends on the issue at hand as to what level of scrutiny applies: strict, intermediate, or rational basis scrutiny. Strict scrutiny is used by the Court to defend most Fundamental Rights. In these cases, such as free speech, the burden of proof is on the government to show that a law regulating free speech is necessary and proper or compelling to achieve a government objective. The government must also show that the law is the least restrictive means to achieve its ends. Rational basis scrutiny is the opposite of strict scrutiny. The burden of proof is on those claiming the law violates some right and the government can choose any means to achieve the ends they want. The government does not have to show any evidence or empirical data to back up its claims. Cases such as Carolene Products and Williamson are good examples of rational basis scrutiny cases. The problem with these two types of scrutiny is that the government rarely wins in strict scrutiny cases and the government almost always wins in rational basis scrutiny. Since levels of scrutiny to be applied for most cases is open for debate, Justices can pick the level of scrutiny that achieves the result they desire. Like presumption, this is another way Justices can avoid “judicial review” and refuse to say what the law is. Both conservative and liberals are guilty of this technique to evaluate cases. In FEC v. Beach Communications it is Justice Stevens who objects to the conservative choice of the rational basis test saying “it is difficult to imagine a legislative classification that could not be supported by a reasonable conceivable state of facts.” He is right. In fact, the only case that failed a rational basis test that I can recall is City of Cleburne v. Cleburne Living Center (I am sure there are a few others).

Contracts:

The Constitution is similar to any written contract in many respects. Contracts are interpreted textually. Take for instance the parole evidence role “which rejects evidence that contradicts the meaning of the contract at the time of its formation.” The Constitution is no different: “Written documents cease to perform their function if meanings can be changed in the absence of an equally written modification or amendment.” Furthermore “overriding written contracts to reach results that some deem superior places the rights of everyone at peril.” What is binding government if not the Constitution? Unfortunately, it is the opinions of legislators and justices who want to expand their power and corruption at the expense of citizens’ rights.

Amendments:

The Constitution can be amended to keep up with the changing times. Unfortunately, most people do not have the patience (the partiality principal and issue with majority factions) to go through this process so they must rely on the Court to legislate decisions for social and moral justice. In well over two hundred years the Constitution has only been amended 17 times (and 2 were for prohibition and the repeal of prohibition). That means only 15 new ideas have been amended. And two of those Amendments (Sixteen – Income Tax, and Seventeen – Choosing Senators by popular vote) should have never been passed because they provide the federal government with unlimited coercive powers. I take the limited amount of amendments to mean that the original meaning of the document must be sound. If the Constitution fails to meet modern requirements to the satisfaction of a special interest group or people this is a problem with the Constitution, not originalism. Originalism is still a valid method to interpret the Constitution.

Experimentation:

There have been many times when the Court has deferred to state laws in the name of experimentation but there have been other times the Court has failed to yield the same type of patience with state laws. Louis Brandies said a "state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” A good example of this in modern times is medical and recreational marijuana. Many states are experimenting with marijuana laws even though the Federal Government views marijuana as illegal. States should be allowed to experiment as long as laws do not infringe on the rights of its citizens. Experimentation is no different than the concept of federalism found within the Tenth Amendment. The Supreme Court does not have to act on social issues such as marijuana, gay marriage, and abortion. It should be left up to the states to experiment with laws to find those laws that work best and those that do not. For instance, it should not be up to the Supreme Court to legislate its trimester theories in Roe v. Wade, which were later abandoned in Casey v. Planned Parenthood less than 20 year later. The Supreme Court is not an expert on marijuana or abortion and therefore it is outside their realm to make legislative directives on such topics. This is the true meaning of federalism: to let States figure out laws through a trial and error process and through the will of the people in each state so long as they do not violate the rights of citizens without compelling reasons. Once something becomes socially accepted, recreational marijuana or gay marriage can be amended to the Constitution like previous civil rights and social issues such as women’s suffrage and the abolishment of slavery. We do not live in a perfect society, humans make mistakes, and sometimes we need to learn from those mistakes before laws are perfected. Remember, mistakes made through state legislation are much more desired than mistakes made by the Supreme Court which can violate the rights of millions more persons.