The Black Republican

Following a link from GOPinion today, I was led to a very interesting piece on originalism at The American Thinker by J. Peter Mulhern, referencing an earlier article by Mr. Mulhern and a rebuttal by Steven M. Warshawsky. If you have the time, I recommend each of these visits to hear a fair argument on the merits, though I have some bones I could pick with Mr. Mulhern's interpretation of how an originalist views his own judicial interpretation.

In the course of reading, and with my usual cross-referencing at sites like Wikipedia and FindLaw, I came across an excellent refutation of originalism by Justice John Paul Stevens.

The original understanding of the type of "religion" that qualified for constitutional protection under the Establishment Clause likely did not include those followers of Judaism and Islam who are among the preferred "monotheistic" religions Justice Scalia has embraced in his McCreary County opinion. The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall and Justice Story. Indeed, Justice Scalia is unable to point to any persuasive historical evidence or entrenched traditions in support of his decision to give specially preferred constitutional status to all monotheistic religions. Perhaps this is because the history of the Establishment Clause's original meaning just as strongly supports a preference for Christianity as it does a preference for monotheism. Generic references to "God" hardly constitute evidence that those who spoke the word meant to be inclusive of all monotheistic believers; nor do such references demonstrate that those who heard the word spoken understood it broadly to include all monotheistic faiths. Justice Scalia's inclusion of Judaism and Islam is a laudable act of religious tolerance, but it is one that is unmoored from the Constitution's history and text, and moreover one that is patently arbitrary in its inclusion of some, but exclusion of other (e.g., Buddhism), widely practiced non-Christian religions. Given the original understanding of the men who championed our "Christian nation"--men who had no cause to view anti-Semitism or contempt for atheists as problems worthy of civic concern--one must ask whether Justice Scalia "has not had the courage (or the foolhardiness) to apply [his originalism] principle consistently."

I wholeheartedly agree with Justice Stevens' insinuation that Justice Scalia's interpretation of the Establishment Clause is beyond the boundries of the rules of originalism. And that he successfully caught Justice Scalia in a trap of his own making, proving him either inconsistant or hypocritical. I will also agree that - like Justice Stevens - I find Justice Scalia's interpretation to be both laudable and correct. Am I rejecting originalism? Not quite.

In another portion of the same Wikipedia article, Justice Scalia is quoted from a news account of a speaking engagement echoing Winston Churchill:

It's not always easy to figure out what the provision meant when it was adopted...I don't say [originalism] is perfect. I just say it's better than anything else.

Originalism as the basis of a legal doctrine is better than "all those other forms that have been tried". This is not to say that stare decisis and common sense are thrown out the window. But balancing originalism with these two is far better than Stevens' (and Mulhern's) resignation to the whimsical (and often farcical) inspiration of nine lawyers in black robes.

Like the current debate in the political sphere, opponents of originalism have to take note of the perpetual failure of Democrats to state what they are for, not merely what they are against. Increasingly, judicial activists are "for" whatever strikes their fancy - and that is proving to be a lousy basis for jurisprudence.