Is Alito an Inflexible Originalist?
The New Republic has announced that it is opposing the confirmation of Samuel Alito, in significant part because Alito is an "inflexible" originalist:
Asked what kind of judicial conservative he is, Alito endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers. Inflexible originalists, such as Clarence Thomas, are willing to uproot a great deal of well-settled precedent and practice--including much of the post-New Deal regulatory state--on the grounds that it is inconsistent with an eighteenth-century understanding of the scope of national power. "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption," Alito said.I went back to the transcript to get Alito's complete statement, and it seems to me that TNR's description is rather misleading. Senator Brownback had asked Alito, "Could you articulate your view of how you look and interpret the Constitution?" Here is Alito's response:
In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.The New Republic editors look at this answer and conclude that Alito "endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers." But as I see it, Alito was saying something else: he was suggesting that you start with text and original public meaning, but then abstract the fundamental principle that is embodied in that text and apply that principle to the situation at hand. As Alito put it, "times . . . change, new questions . . . come up." Whether Alito's approach is right or wrong, it seems rather different from TNR's description of it.
But I think we have to recognize that the Constitution is very different from statutes in some important respects.
Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.
The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.
They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts — and, of course, the legislative body can supplement this — to apply that principle to the new situations that come up.
Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.