What I Agree About Originalism & What I Disagree With Judicial Review

 I have put my research project into Indiana's Bill of Rights on hold as I await feedback. One issue that arose is originalism. As I see matters, Indiana has silently adopted the United States Supreme Court's theory on originalism. What is the problem with originalism? Selecting the source for the original meaning determines the outcome. It does not mean that the court has roamed through the whole of the historical record. In Indiana, the court went looking for abortion in The Debates of the 1851 Convention. A legislative subject not one for constitutional debate. I argue what should have been looked for was the meaning of liberty and the pursuit of happiness; the words that were actually debated as being rights.

 But this paragraph from Brian Fitzpatrick's Originalism: What it is, what it isn’t and why it’s the most democratic option for the Supreme Court from The Conversation, I do agree with.

Originalists think the Constitution can be changed only by the American people through the amendment process. Conversely, living constitutionalists believe it can be changed by judges through reinterpretation of the existing document. 

It is also disingenuous at both the federal level and in Indiana. At the federal level, the amendment process is so arduous that it is easier to pack the court with ideological judges. When the Indiana Supreme Court suggested abortion should be put to the people as a constitutional amendment, it ignored the amendment process needed the cooperation of the very legislature that passed the abortion ban.

Cute. Not to be taken as a cure-all.

Now, about judicial review, the power of a court to determine a law unconstituional. I have a problem with Who Is Supreme, the People or the Court? (Los Angeles Review of Books). Maybe two. The first issue is the focus on the federal level. 

Just as the folk story of Brown is simple enough to state, so too is the basic thesis of Supremacy. Bowie and Renan take on the Supreme Court’s power of judicial review, meaning the court’s power to decline to enforce federal laws. Bowie and Renan contend that judicial review, so defined, is fundamentally inconsistent with the republican, democratic foundation of the Constitution, and also that, in practice, judicial review has been weaponized for antidemocratic, illiberal ends. Indeed, judicial review has consistently been opposed on those grounds by abolitionists, labor organizers, and other progressive groups. It would be impossible to recount the entirety of the story that Supremacy covers, so I will merely highlight some of its key claims (while begging readers to get the book as soon as they can.) 

The states might have given a different answer - the amendment process is easier at the state level and there are states still electing their appellate court judges. An Indiana Supreme Court case held that judicial review was meant to protect citizens rights against a despotic legislature. That opinion emphasized the final judges of natural rights were the people. 

However, I cannot argue with this. 

Would a ban on judicial review—or even targeted restrictions on judicial review—fix everything at the Supreme Court? No, and I don’t take Supremacy to suggest otherwise. For one thing, I’d bet almost anything that this Supreme Court, which is full of judicial supremacists, including Chief Justice John Roberts, would invalidate any federal law that attempted to limit the court’s power.

And yet, Bowie and Renan make a powerful argument against judicial review. Don’t let this review displace your own review—you should dig into their case.

 

sch 10/4