Activists and Originalists: Two Takes on American Jurisprudence

The Constitution was created to provide rights to all Americans, originalism is the path to follow. 

By Katelyn McCarthy
Opinion Columnist

Much of the political infighting our nation grapples with today stems from warring ideas about what America is. Since what America is is determined by her Constitution, matters of jurisprudence are central to defining her. 

Such jurisprudence is generally divided into two camps: an originalist understanding and an activist understanding. An originalist believes that the Constitution means what it said when it was written. An activist believes that the Constitution can be reinterpreted by the courts to correspond to America as she exists today.

The activist interpretation can come off initially as the more human understanding, as it seems to take into consideration our current concerns. The originalist understanding, on the other hand, can seem unnecessarily pedantic, unforgiving, and worshipful of an old document.

In actuality, however, the activist understanding is the dangerous interpretation. If the Constitution means what any one judge decides, then one’s rights are open to interpretation. This understanding provides less security for the safeguarding of the rights of the citizen against the government.

If, on the other hand, the Constitution means what it says (as it does under the originalist understanding), then one’s rights are clearly delineated and less able to be tinkered with. 

Ultimately, the philosophy supporting the activist understanding of the Constitution is based on the idea that society inevitably advances and improves with the passage of time. We moderns tend to think that humanity’s trajectory is linear, with an upward slope. If this is the case, then what problem could there be with the Constitution’s meaning evolving as we do? After all, we can only be better tomorrow than we were today, right?

But is it true that humanity necessarily progresses? This notion may be ingrained into our pattern of thinking, but, seeing as the twentieth century was the bloodiest century yet known to man, I don’t think it holds much water. We ought not place our hopes in an inevitable progress.

This is not to say that the Constitution is not a living and breathing document. Its heart pulses within Article V, which details the process by which it may be amended. The Founding Fathers devised a system by which it may be purged of its flaws and applied to the present day; that system is not judicial activism but “activism” on the part of either the federal or state legislatures. An unelected judge who is not accountable to the people is the last person a free nation should entrust with pumping the ink through her constitution’s cursive veins. 

As the process of amending the Constitution requires high levels of support either from Congress or state legislatures, it is not easily accomplished. Perhaps this is why judicial activism is practiced, since it provides a route around the Constitution’s normal and difficult amendment process. Perhaps it is also employed because it can be used to promote policies which would not likely pass through any given legislature or be voted for by the people.

The question of jurisprudence ultimately comes down to the place in which the citizen desires power to be vested. Shall it be vested in a document designed to protect his rights and that can be amended as necessary, or shall it be vested in the hands of a few who, over time, can squeeze out of it just about whatever they might want? Shall the judiciary serve as a super-legislature, or not? Shall it judge, or shall it rule? Shall Lady Justice leave her blindfold on, or shall she remove it? Originalism will give you the former; activism will give you the latter.