Originalism: be careful what you wish for
I have some questions for those who are clamoring for a strict originalist to be appointed to the Supreme Court.
A little background: in 1973, the Supreme Court famously ruled in Roe v. Wade that states could not outlaw abortion because the Constitution contains a right to privacy that would be violated by such laws. But repealing Roe v. Wade would not automatically outlaw abortion again. It would simply leave that option open to the states.
So here's my first hypothetical for everyone who is a strict originalist: let's say that Roe v. Wade is repealed, and although every state is now free to outlaw abortion, all states defeat proposed laws against it, and actually end up continuing to allow abortion. Would you be satisfied with such a result, since a strict originalist ruling was followed, even though abortion would remain every bit as legal as it is today?
Griswold v Connecticut, the 1965 case that established the right to privacy on which the Roe decision relied, concerned the right of married couples to have access to contraception in the state of Connecticut, which had banned contraceptives even for the married. So my next question is this: If an originalist court overruled the right to privacy which had been established in Griswold, and as a result some states passed laws prohibiting access to contraceptives for married couples and actually enforced those laws, what you be satisfied with the result, because a strict originalist ruling had been followed?
These hypotheticals may indeed be exaggerations, but they are certainly not impossibilities. I think they illustrate two things: (a) whether a person really is a champion of originalism or whether that person actually just wants a certain result from application of the doctrine, and (b) some of the possible problems inherent in strict originalism (at least, as I read it).
Personally, I agree with those who think judicial activism and "legislation from the bench" can sometimes represent an overreaching, and that less is often more. But, as with many things, it's a balancing act; sometimes a bit of judicial stretching can be a way to protect our rights from legislative and/or executive overreaching. Would you feel comfortable if states were free to make laws such as the banning of contraceptive devices for married couples? And, if there were no constitutional right to privacy, what would be the legal principle on which such laws might be overruled, if passed? I wonder in particular what the stance of libertarians might be on this?
One further question: do you know that one of the bases for Roe was what could arguably be called an "originalist" interpretation of the word "person" in the US Constitution? The Court found in Roe that fetuses should not be considered "persons" protected with the full rights as such under the Constitution, because at the time of that document's writing, abortion was legal and fetuses were not considered to be persons.
Be careful what you wish for.
[NOTE: I know I said yesterday I was planning to declare a Miers moratorium. Well, this post is close to being about Miers--but it's not. Look, I didn't even mention her name!--until now, anyway.]