• Video

Originalism: A Theory of Political Legitimacy

Courts have a great deal of power to interpret the Constitution. Professor Lillian BeVier argues that the originalist method is needed to properly restrain the judicial power. Unelected judges should evaluate laws passed by elected officials in accordance with the original public meaning of the Constitution. https://youtube.com/watch?v=DNFKijU9EXE


Under originalism, the job of courts is to discern the original public meaning of the Constitution, or another way to suggest that is a little bit more broadly, the original general meaning of the words of the Constitution. But the important thing about originalism is that it goes back to the text of the original document. Originalism is a theory of political legitimacy. Think about the Constitution as law, and recognize that what it does is to establish and limit a representative democracy. Judicial review has been established as a means by which judges take the product of representative democracies and evaluate it in terms of its conformity to the Constitution and the Constitution's legal boundaries. If you think about it, you have to be sort of puzzled by the fact that the judges have that power in a Constitution. This problem is often referred to as the counter-majoritarian difficulty. We have a democratic republic, but we have a system in which the judges have the final say about constitutionality. Originalism is a theory that makes that okay, that sort of dissolves the counter-majoritarian difficulty. Basically, what it does is compare acts, or enactments, or products of representative democracy against the original text of the Constitution, its original public meaning. And if, in making that comparison, the original public meaning does not prohibit the act of the representative democracy, then it is not unconstitutional, but if you can find a prohibition for what the government has done, or for the act of the government, in the original Constitution, then it makes perfect sense, given that the Constitution is law, to say that what the government has done is unconstitutional, and it justifies judicial supremacy, if you will. I think one thing that originalism does is provide a criteria against which to measure what decisions the Supreme Court reaches. And it's not always easy to know what the originalist solution is, but when you're arguing about an originalist solution, whether it's the right one or the wrong one, you're arguing about an objective criteria. And it's the best way I know to constrain judges or justices from imposing not the views of the Constitution, but their own personal, subjective views onto the people of the country.

Related Content