Franken's speech is worth noting only because it is the purest, most simplistic expression of a liberal argument. "Originalism," he says, "isn't a pillar of our constitutional history. It's a talking point." The real purpose of judicial interpretation, he continues, is to "defend our individual rights and liberties against corporate encroachment." Any liberal constitutional ruling immediately becomes sacred precedent. Any judge who overturns a law in service of a liberal ideal is a hero. Any resistance to either practice is conservative judicial activism. Franken mocks Roberts' description of the role of a judge as an umpire, applying rules he does not create. "How ridiculous," Franken says. "Judges are nothing like umpires."
No, in Franken's view judges should be more like the Committee of Public Safety during the French Revolution -- an unelected group of super-legislators who issue binding verdicts based on their own advanced conceptions of justice and the class warfare.
Originalism is not a talking point; it is a developed, consistent theory of judicial interpretation. But that does not make it easy to apply. As most advocates of originalism have long recognized, there is no single intent of the fractious Founders. The Constitution's meaning is found by examining the way it was generally understood at the time of its passage -- not only by the Constitutional Convention but also by the state ratifying conventions and informed citizens. Some constitutional provisions are straightforward -- a president must be at least 35. Others -- such as forbidding "cruel and unusual punishment" -- seem intentionally vague. The determination of the Constitution's original public meaning leaves room for disagreement and judicial discretion, as the spirited historical argument between Justice Antonin Scalia and Justice John Paul Stevens in the Heller decision on the "right of the people to keep and bear arms" demonstrates.
But theories of constitutional interpretation that become untethered from the text give judges unchecked power. When the late Associate Justice William Brennan argued that the Constitution "embodies the aspiration to social justice, brotherhood and human dignity that brought this country into being," he was awarding himself permission to impose his own conceptions of justice, brotherhood and dignity, instead of enforcing a set of specific legal protections.
To restrict or legalize abortion, to allow or forbid gay marriage, a legislator would need to write and pass a law, get it signed by the president or a governor and perhaps override a veto. A Supreme Court justice need only persuade four other people. If he or she is not internally constrained by the authority of a text, he or she is not constrained.
Franken is attempting to be serious, but should not be taken seriously. A judge who does not think himself an umpire may end up an autocrat.
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