A taxi driver in London once told me that if I asked a room full of taxi drivers for the fastest way to get to a location, I would get as many alternate routes suggested as taxi drivers in the room. While humorous, this reminds us of the differences between relative and objective matters. Now although the route from Buckingham Palace to Westminster Abbey is subjective, in matters of judicial interpretation, I believe objectivity is necessary. What did Thomas Jefferson mean when he wrote the words in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (Jefferson et al 423)? Is there one objective meaning, or is the interpretation dynamic and relative, changing over time?  An originalist judge would say it is objective; but a pragmatist would say it is subjective and dynamic. 

Originalists believe in preserving the originality of the founding documents through one objective and historical interpretation, but pragmatists, sometimes called living constitutionalists, believe in a dynamic and malleable interpretation (Viera 25).  Although proponents of the Living Constitution see our legal system as forward-looking and future-concerned, I believe that we must emphasize a rearward-looking interpretation of the Declaration of Independence and the Constitution as the key to preserving present and future Liberty. If we take a pragmatist position, we open the door to judicial legislation, destroy the objective foundation of our Liberty, and put the focus on desirable results rather than correct methods of interpretation. A relative interpretation of the founding documents seriously endangers the rights that Americans have come to champion. 

When it comes to judicial interpretation, there are two main schools of thought. On one hand are the originalists (judges like Clarence Thomas or Antonin Scalia); juxtaposed to the originalists are the judicial pragmatists (judges like Stephen Breyer or the late Ruth Bader Ginsburg). Originalists believe that the Constitution has one historical, contextual interpretation. Pragmatists do not believe in a single, objective interpretation of the Constitution, but that it should be interpreted differently as time proceeds (Viera 25). As William Rehnquist, former Supreme Court Justice of over thirty years writes, originalists believe that “the framers of the Constitution wisely spoke in general language and left to succeeding generations the task of applying that language….” (402). Originalists are often accused of being behind the times. “How can a document written 250-odd years ago still be relevant today?” a pragmatist might contend. However, I would argue that pragmatists ignore the fact that the only reason Liberty has endured through those 250-odd years is because of the un-yielding foundation (i.e., the Declaration and Constitution) that limits the powers of would-be despots. To alter the Declaration and Constitution through dynamic interpretation is to compromise the foundation of our Liberty, perhaps irreparably. 

Judicial pragmatism is not just a matter of preference; it is legally untenable in the way that it erodes the very foundation on which our Liberty is built. To say that the founding documents are dynamically malleable while still holding on to personal Liberty and “unalienable rights” is logically fallacious. If we begin redefining and reinterpreting the Declaration and Constitution, where does it stop? When will it be enough? Who makes that call? Every citizen of the United States is granted unconditional, natural Liberty. Who grants this Liberty? The government? No, a thousand times over! The Liberty enjoyed by each and every naturalized citizen is granted upon the authority of the Declaration of Independence, which established the unalienable right to Liberty (Viera 26). If we start redefining the founding documents, Liberty is at risk. 

Furthermore, judicial pragmatism is the reason liberals fight tooth-and-nail to keep conservative judges off the courts, with conservatives responding in kind. The original intention for the judiciary was non-partisan, but when we remove the objectivity of the founding documents through judicial pragmatism, we are left with far too much emphasis upon what the judge’s personal beliefs are. As Rehnquist writes, “Beyond the Constitution… there simply is no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments. There is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to [yours]…” (413). The Founding Fathers envisioned the Constitution as the objective foundation on which all American law would be built.

Another leak in the pragmatist boat is the elevation of desired results over correct methods. When the objective foundation of judicial interpretation is removed (i.e., objective Constitutional interpretation), judicial decisions are made in the interests of social good or ideological advancement. A pragmatist judge comes to a case and asks, “How do I justify outcome X?” He might look to precedent or practicality, seeking the best outcome (Barnett, 0;15-0:40; Song 371). Originalism on the other hand seeks to be faithful to the text of the founding documents and come to the correct results, even if those results are not necessarily the most desirable to one party or another.

Some argue that the philosophy of originalism binds us up to unrealistic ideals of the 18th century. This is not true though, given the process of constitutional amendment. Good examples of this are the thirteenth and nineteenth amendments: since women’s and African Americans’ rights were not fully enumerated in the original Constitution, our country secured those rights in constitutional amendments. Although it is true that, “…Constitutionalism of any sort demands extraordinary consensus for meaningful progress” (Doerfler and Moyn 2), this is good, not bad. If an overwhelming majority of citizens unite in a belief that (1) the Constitution disallows or (2,) the Constitution does not enumerate sufficiently, we may amend the Constitution. Notwithstanding, such seismic changes to the fabric of American government must only be reached through the arduous cross-examination of constitutional amendment, not just a judge interpreting a living constitution (Strauss 1). Thus, pragmatist interpretation is anti-democratic, at least if carried to its logical conclusion. 

Perhaps the worst result of judicial pragmatism is the fact that the judicial branch of government is given, albeit silently, the power of legislation through the process of judicial review. Judicial review is performed by a court when a law is alleged to be unconstitutional. Judicial review is meant to be a check-and-balance to the legislature, but sansobjective interpretation, the judge becomes an arbiter of truth, an anti-democratic despot (Rehnquist 405). Judicial review is only democratic when the judiciary functions within the power granted by the people, which, in the case of the judiciary, is granted through the Declaration and Constitution. Based on the judge’s political leanings and philosophy of judicial interpretation, the “right” answer in the case at hand is whatever is most “right” to the judge!

“But precedent!” supporters of pragmatism will shout, citing the fact that many rulings are based on judicial precedent. This merely underscores the point: is the foundation of our Constitutional Republic based on judicial precedent or is it based on the Constitution? Judicial review with a living Constitution is just an underhanded way of giving the unelected judicial branch the power of legislation, a power reserved for popularly elected representatives. Judicial review becomes quite frightening when seen in this light:

Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to… the Constitution…judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant; instead [sic] they are a small group of fortunately situated people with a roving commission to second-guess Congress… concerning what is best for the country. (Rehnquist 406)

 Not even judicial precedent should supplant the Constitution. Unless, that is, one fancies an unaccountable body legislating law.  

“Who cares?” one might ask. Why should we care about judicial pragmatism? For this one reason: if the judicial branch can reinterpret the founding documents relatively, the basis of our Liberty is destroyed. To preserve Liberty, we must return to historical originalism in the interpretation of the Declaration and Constitution. The original Declaration of Independence gave to the people the unalienable right to Liberty. To preserve this Liberty, the people instituted the Constitution which is meant to guarantee our Liberty by protecting us from possible despotic power. If we start tinkering with the words of the Declaration or Constitution, we quickly venture into the dangerous territory of removing the very liberties we claim to be protecting. We ought to interpret the Constitution and Declaration historically and contextually, realizing that the Founding Fathers knew what they were saying, and said it for a reason. The road of living constitutionalism leads eventually to the abandonment of the Constitution. When we abandon the Constitution, we abandon our freedom. What Jefferson actually meant was what he actually said.