The Need for Originalist Justices

Reading a previously published Wheel editorial excoriating the estimable Justice Scalia and his judicial philosophy, I realized that some Emory students might not entirely understand the legacy of Justice Antonin Scalia and his “originalist” approach. To view the late, great Scalia as an atavistic, benighted fool is to not appreciate the justice’s judicial philosophy and its intrinsic and undeniable merits. This conversation is necessary because our next president may have the opportunity to appoint up to four new justices to the Supreme Court. Although the Court is meant to be fundamentally detached from electoral politics, it seems as though this particular issue was on the ballot in this year’s election. Yet what the Court needs is not a liberal or conservative judge, but an “Originalist” justice — that is, one who reads and interprets the Constitution by examining its literal intent and the motivations and historic discourse behind its framing.

As executive power increases and Congress becomes more and more impotent, the the Court should act as a reliable safeguard against gross overreaches of presidential power. The Constitution grants the executive specific and limited duties within Article II, and the Supreme Court must act as the country’s metaphorical stop sign that protects the citizenry from executive usurpations. Congress makes laws, not the president. Any action by Trump regarding deferring deportation for illegal immigrants, changing federal statutes to benefit special interests groups or punishing companies who do business overseas must be met with unequivocal disapproval by the nation’s highest court.

Perhaps equally as precious as the separation of powers within our constitutional system are our fundamental rights outlined in the Bill of Rights and the Reconstruction amendments. It should be noted that the Bill of Rights does not grant us rights; rather, it outlines that government may not infringe on the rights we possess innately. In the wake of an expanding “war on terror,” both at home and abroad, citizens face a growing National Security Agency (NSA) with the capability to spy and collect metadata on millions of law-abiding citizens. It is incredibly apparent that we need thoughtful justices who will strike the delicate balance between our fourth amendment guarantees of being free from unreasonable and unwarranted search and seizure with the compelling and necessary governmental interest in protecting the country from domestic and foreign terrorist threats.

With respect to the second amendment, it is necessary to have justices who understand the rationale and history of our right to bear arms. Justice Scalia affirmed this right in his Heller decision, but both major party candidates, particularly former Secretary Clinton, have shown a proclivity and desire to restrict the rights of lawful gun owners. Many Americans agree that some regulation on firearms and gun sales should be permitted. Yet a law like the one overturned in DC. Heller, where the District of Columbia effectively outlawed possession of any firearm, is incompatible with our second amendment guarantees and with the Founding Fathers’ vision of gun ownership.

Additionally, the Roberts Court has made meaningful strides in protecting religious liberty, specifically in their Hobby Lobby decision, which affirmed the right of businesses to operate within their faith and abstain from providing certain types of contraceptives to their employees. However, multiple states have seen their Religious Freedom Restoration Acts under attack, setting the stage for an impending legal battle at the Supreme Court. It is necessary to have justices who will allow individuals, in and outside of their houses of worship, to live according to their faiths and consciences. Our country also needs a justice who understands that the right of citizens to support candidates and causes they believe in is protected by the First Amendment.

Lastly, our country must have justices who respect each state’s power and prerogative to make law. The 10th Amendment clearly reserves all powers not delegated to the federal government to the states, and being that Congress’ Article I power is extremely limited, every state possesses extraordinary autonomy to legislate. This concept of federalism effectively allows for fifty “experiments” within our country, wherein smaller bodies of people can implement policies and proposals that reflect their communal desires and values. A one-size-fits-all centralized, federal approach to governance stifles the creativity of state legislatures around the country and strips the people and their communities of any meaningful influence in governmental happenings.

It is important to note that the Supreme Court, though intended to be removed from partisan squabbles, has become essentially yet another political branch of the government. Certain justices have exploited the concept of “substantive due process” to arbitrarily confer rights not explicitly enumerated in the Constitution. This practice of “legislating” from the bench can be alluring to justices who wish to make an indelible impact on American life, but, at the same time, it is entirely outside of their constitutionally outlined role. Former Chief Justice John Marshall boldly identified the proper role of the Supreme Court: “It is emphatically the province and duty of the judicial department to say what the law is.” Notice that Justice Marshall did not declare that the Court’s duty is to say that the law ought to be or what rights ought to be protected. As Americans, we should demand that Supreme Court Justices constrain their own preferences, passions and proclivities when assessing cases before the Court, and instead judge soberly and dispassionately.

Considering the potential influence the next Court will have on nearly every facet of American political life, the United States Senate should hold substantive hearings on judicial nominees and thoroughly inquire into their fidelity and approach to our founding document, and only confirm justices who will read the Constitution for what it is — a brilliant safeguard to tyranny and a revolutionary codification of those fundamental, natural rights into which we are born.

Elias Neibart is a College freshman from Morristown, New Jersey