• Jai Kasera

Upholding American Democracy


Composed of nine justices appointed by the President and confirmed by the Senate, the Supreme Court has been trying to find the fairest way to interpret the centuries-old Constitution through different judicial theories. Originalists believe the Constitution should be interpreted the same way as it was during the time it was written, while non-originalists aim to apply and expand the Constitution to current societal structure and values. America is based on democracy, and as such, the Court should aim to promote this principle. Originalists and the Dobbs v. Jackson Women’s Health Organization (2021) draft opinion succeed in doing so, as they rebalance individual rights and representative democracy as the founders intended. Non-originalists, however, by expanding individual rights beyond the outline of the Founding Fathers, take power away from the people as shown in Roe v. Wade (1973) and insert their own personal biases in these important decisions. Because of this, although it can be difficult to apply as it requires the review of a large amount of historical text, originalism is the only judicial theory that can be used to promote a properly functioning democracy because it restores power to the state legislators and allows each state to make its own decision based on its communal values.

Originalists argue that the rights outlined by the Constitution should not be expanded to encompass modern values. Instead, former Justice Antonin Scalia believes that the legislative branch should take current societal values into account: “If the Constitution were not that sort of a ‘law,’ but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than the legislature? …Quite to the contrary, the legislature would seem a much more appropriate expositor of societal values.” (Scalia 2). This fixed and narrow Constitution creates more space for the legislature to make a difference and serve as an “expositor of societal values,” which can compensate for the Constitution being solely representative of values of the Founding Fathers. Current societal values are best understood by the public, not unelected judges, which is why these values should be promoted in the legislature rather than the Court. Social issues such as abortion that are not mentioned in the text of the Constitution should therefore be decided by the states.

Non-originalists advocate against this view, allowing unelected judges to wield disproportionate power by using their own biases to amend the Constitution to current times, which will invariably lead to the destruction of American democracy. They claim that because of the majoritarian process promoted by originalism, this theory jeopardizes individual rights. However, the solutions framed by non-originalists give power to unelected judges, which goes against democracy. By concentrating so much force in a few people, the Court almost becomes analogous to a tyranny, in which the personal biases of these judges will influence decisions that impact the entire nation. Former Associate Justice William Brennan tries to justify giving judges this power by relying on revisions of past court decisions to correct any mistakes that these judges might make: “Yet, again in my judgment, when a Justice perceives an interpretation of the text to have departed so far from its essential meaning, that Justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path” (Brennan 8). Brennan claims that justices can oppose stare decisis when a previous judge overextends their power and makes a wrong decision and that this revisionist aspect of the court will regulate the power of these justices. However, this will not undo the injustice caused by a wrong decision during the time it was in effect, which could be years or decades. This implies that justices will be able to make a wrong decision because of their extreme amount of power, and the only way to reverse this decision would be for a justice in the future to override it, which will undoubtedly take a great deal of time and will cause suffering to those affected by the decision. Thus, Brennan’s argument about how judicial power will be limited in non-originalist theory is flawed.

Non-originalism is further delegitimized when examining the actual effect of implementing this theory in Roe v. Wade. In the Dobbs draft opinion, Justice Alito describes how Roe v. Wade is based on generalizations and does not ground itself on historical facts. Additionally, the Court used its power to make rules that neither party in the case suggested:

Dividing pregnancy into three trimesters, the Court imposed special rules for each…Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed. (Alito 42-43)

Under the veil of applying constitutional values to a current issue such as abortion, the justices were able to create new regulations and make a nationwide decision about abortion without the support of the public, including those directly involved with the case. Furthermore, the Court did not provide appropriate reasoning for these detailed rules.

Although originalism does have imperfections, these flaws do not significantly hurt American citizens unlike those of non-originalism. For instance, an objection to originalism is the difficulty of applying it especially due to the large amount of historical material needed to be examined. Even though this might cause a lack of applicable information, it is better than having biased information from a non-originalist method that can lead to drastic results: “And the principle defect of that [originalist] approach — that historical research is always difficult and sometimes inconclusive — will, unlike nonoriginalism, lead to a more moderate rather than a more extreme result” (Scalia 5-6). Because abortion is not outlined in the Constitution, originalism creates a moderate result — giving the liberty to each individual state to decide for itself — while non-originalism, as demonstrated by Roe v. Wade, produces an extreme result of imposing a nation-wide law supporting abortion regardless of the input of the elected state legislators. It is better for this moderate result to occur, as it leaves the decision up to the democratic process.

Because the public has dissenting opinions about abortion, the Court must return the decision to the states for individual communities to decide based on their own values. Although this type of majoritarian system is not perfect, as it does not always respect the minority opinion, it upholds American democratic ideals that non-originalism directly opposes. Over 20 states will likely restrict abortion if Roe v. Wade is overturned, which shows that there is considerable support against abortion. Because of this, unelected judges who do not represent these people should not make a nationwide decision whether or not to allow abortion in states. Instead, the public’s elected representatives will make a more informed decision for their respective states and ensure the most amount of pleasure for the greatest number of people.

Works Cited:

Brennan, William J. Jr. “The Constitution of the United States: Contemporary Ratification.” Guild Practitioner, vol. 43, 1986, p. 1, https://heinonline.org/HOL/Page?handle=hein.journals/guild43&id=11&div=&collection=.

Scalia, A. Originalism: The Lesser Evil. 2017. Semantic Scholar, https://doi.org/10.4135/9781071800942.n22.

Staff, POLITICO. “Read Justice Alito’s Initial Draft Abortion Opinion Which Would Overturn Roe v. Wade.” POLITICO, https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504. Accessed 11 June 2022.