Originalist v. Activist
I was reading an article today about Justice Scalia making his rounds on the college-speech circuit. His speeches focus on interpretation of the Constitution (surprise surprise).
I noticed that Scalia labeled himself (and other judges like him) an “Originalist.” Essentially he believes that the U.S. Constitution and state constitutions are static documents that should be read the way they were written. And, when a question arises about what is written, the correct response is to refer back to other original documents that detail the Framers’ opinions. The opposite approach is to view the constitutions as living documents meant to be interpreted and adapted as times change.
Most amusing was that Scalia argued that judges shouldn’t be made political figures (clearly in response to the 10 far-right judges being denied positions because of their religious politics). And yet, he’s been stumping around the country promoting a conservative shift in America through his “originalist” principles.
The problem with this debate is that the opponents to the originalists are labeled as “activist judges” by the right. Judges who seek to further their political agenda through interpretation of the federal and state constitutions. However, the right is equally activist in this regard. Let’s unpack each of these terms a bit.
Other terms used for the originalist view include Traditionalist, Conservative, Moderate, etc. These are commonly used in speeches and the press to describe what Scalia and his ilk believe. These words have a fairly positive connotation for most: Time-honored tradition, family values of yester-year, conservative and moderate judges wearing black robes who thoughtfully do their jobs, laws written by people from a time when things were better.
Now what about the term “activist”? The loaded term recalls images of war protesters, people throwing red paint on fur-clad ladies, Greenpeace, etc. I’m certainly not condemning these groups. But much of conservative and Middle-America doesn’t understand activism. I grew up in conservative, Middle-America, where tradition is good and hippie protesters are bad. The term activist has a decidedly negative connotation for much of America. The term activist is thrown around like the term “bleeding-heart liberal” casting a very dark shadow on otherwise noble causes.
So what do we do? There are certainly other terms that can be applied to more accurately reflect the two types of judges. Progressive, Liberal, and Activist are too overly used and have been co-opted by the right to carry negative connotations. Terms like Modernist, Adaptive, Flexible, Interpretationist (not really a word, but could be used), Responsive, and Tolerant are all good words to describe judges who see the US and state constitutions as living documents.
And for Originalists? The terms Conservative, Moderate, and Traditionalist are currently widely in use. But what about terms like Ancestral, Historical, Conventional, Strict? These seem to convey the inflexible aspects of judges to the right and their unwillingness to adapt, without using negative prefixes or suffixes like “in” or “un.” Avoiding overtly negative terms and word parts is important for people to respond to the term and adopt it.