Chief Justice of the Michigan State Supreme Court, Robert P. Young, came to Albion College on April 14th to give a lecture titled "A Judicial Traditionalist Confronts Justice Brennan's School of Judicial Philosophy." He came dressed in a suit and bowtie. The attendees ranged in age from 18-80, and almost all were dressed business professional. I wore my Assassin’s Creed hoodie made by a friend, beat-up work shoes, and the same jeans I had worn that morning to pottery class, spattered with dried clay.
Young was here to discuss a very interesting debate in the Judiciary, that of Constitutional Traditionlism or Originalism vs. Interpretivism. Well, I find it interesting, anyway. It is the kind of blindingly technical, seemingly esoteric subject matter that I immensely enjoy poring over and testing various perspectives on, testing my formulation of ethics and philosophy and political opinion. Others may find themselves asleep halfway through Young’s introduction.
The CliffNotes version: The original powers delegated to the judiciary in the Constitution are incredibly limited, and did not include the power of Judicial Review, where the courts examine laws passed by the legislature and determine whether or not they are consistent with the Constitution and precedent-setting rulings by past courts. A hardcore Originalist or Traditionalist like Young does not believe that courts ought to exercise this power, though he especially objects to Interpretivists (or Rorschachians, as Young calls them) who apply their modern sense of ethics and modern understanding of what derived version of constitutional rights are most appropriate for a modern society. In Young’s opinion, it is only through the process of Constitutional Amendment that the interpretation of the Constitution can be or ought to be changed from its Original 1790 meaning. The action by modern judges to interpret the Constitution towards their understanding of social good is, in Young’s view, a bad thing that promotes undemocratic and unconstitutional rule of the many by a class of educated Philosopher Kings, in the form of justices.
“I submit that the Rorschachian school embraces the notion of a judicial oligarchy; the rule of the many by the few.”
I find this position to be practically and morally unworkable. Justice Young makes excellent points towards the dangers of an oligarchic judiciary that infringes on “the rights of a state to make its own laws,” but I side with Alexander Hamilton in that the Judiciary remains the weakest of the three branches of government as it has neither “Force nor will, but merely judgment.” The courts may strike down a law they see as unfair, but they cannot prescribe their own laws. I said to Justice Young in the Q&A session afterward that power of judicial review is crucial to the protection of civilians. Young gave the example of a New York City set of laws which made dancing in bars illegal. Young argued that a patron who was charged with a fine for such an infraction is not, in the Originalist perspective, in his rights to challenge his sentence on the basis that the law is unjust. In Young's opinion, the only just way for someone to change a law is through the legislative process, by voting or running for office and changing it themselves. A state could pass a law, for instance, which punishes the act of dancing in a bar with the sentence of death. I posed this hypothetical to Justice Young, and asked what a couple sentenced to death for dancing in a bar could do to prevent this clearly unjust outcome from occurring.
"They could vote," He said.
Without judicial review, someone given this sentence would have no recourse to say “this law is unfair on constitutional grounds, and I ought not be punished,” they would have to simply be killed. I recognize the danger in the law being more oligarchically controlled by bodies like the judiciary, but I think the danger of an incompetent legislature put into power by an incompetent electorate and making incompetent laws which cause real harm to people is much higher than the danger of an overzealous judiciary striking down every law they don’t like.
Young may have a good point in the fact that the Constitution does not originally give this much power of interpretation to the judiciary, but in my view, society is better off with this version of government than it would have been with the Originalist perspective.
