Nonoriginalist Adjudication: A Troubling Approach to Constitutional Interpretation
In the 1980 law review, “The Misconceived Quest for the Original Understanding”, Paul Brest challenges traditional approaches to Constitutional interpretation by proposing non-originalist adjudication, a method that “accords the text and original history of the Constitution presumptive weight, but does not treat them as authoritative or binding” (p. 70). This method directly conflicts with originalism, the method of interpretation supported by Antonin Scalia, but generally agrees with semantic intentionalism, the approach proposed by Ronald Dworkin. The difference in the outcome of nonoriginalist interpretation is especially seen in cases involving morality and equality, for example, if applied hypothetically to the 1971 Supreme Court case, Roe v. Wade. The comparison of different approaches to Constitutional interpretation and the examination of the supposed legal outcome of nonoriginalist adjudication brings us to the realization that a method that allows the law to stray so far from the Constitution is truly dangerous to our traditional notion of government and threatens the stability of our Constitutional system.
Nonoriginalism, Originalism, and Semantic Intentionalism
Nonoriginalism and originalism, the approaches to constitutional interpretation put forth by Paul Brest and Supreme Court justice Antonin Scalia contrast as much in philosophy as they do in name; nonoriginalism allows the interpreter to stray from the purview of the Constitution for the sake of social progress, while originalism holds the interpreter within the limits of the text, in order to preserve traditional values. To begin with, Scalia’s originalist understanding of the Constitution emphasizes the text and the meaning of the words at the time they were written. According to Scalia, interpretation and application of the Constitution must be confined to the limits of the text, otherwise justices may freely interpret the Constitution to fit their desired outcome, or as Scalia calls it “legislate from the bench”. Scalia contends that changing the law in this manner is undemocratic, as judges are appointed officials and should not assume the role of the elected legislature. For the same reason, Scalia also makes a case against intentionalism, as he believes looking at the intent of the writers who died centuries ago leaves too much up to the interpretation of the justice, allowing him to manipulate the historical context and supporting documents to bend the Constitution to mean what it he thinks it “ought to mean”. Brest, on the other hand, supports the opposite philosophy. Brest believes that justices actually should be able to interpret the Constitution to mean what they and society think it “ought to mean”, in light of social norms of the time. Brest (1980) says we should treat the text and original history as “presumptively binding and limiting, but as neither a necessary nor...