Reflection Paper: Originalism and Judicial Activism
Bashir Safi
Prof. Timothy O'Brien, Liberty University
PLCY 703
December 17, 2021
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Originalism and Judicial Activism
This paper reflects on two important topics which were discussed during the class. The
philosophies of originalists and non-originalist and judicial activism. I explained arguments from
both originalists and non-originalist scholars. On the second topic, I discussed the history of
judicial activism and counter arguments from self-restraints philosophies.
Originalism: During the first week of this class, we discussed the doctrine of originalism
and non-originalism. The scholars of both ideas presented variety of arguments in support of
their scholarships. Originalists support the “original intent” of the Constitution in four main
camps: the original meaning, original understanding, original methods, and original intent of the
founding fathers when the document was written and ratified. On the other side, non-originalist
believes that the Constitution must be interpreted to keep up with the societal circumstance. They
argue that when society adopts new changes to a degree that the original intent can no longer be
applicable and original intent’s application was under determinate.”1
Many originalist scholars such as Raoul Berger and Robert Bork believe that the original
intent is the only way to preserve the Constitution. Both praised the “original intent” for “its
ability to constrain judges” and further argued that the judges must stay closer to the text, history
and fair implication of the Constitution. They also added that the Constitution’s original meaning
was the only and sole source of the Supreme Court authority. 2 Berger also argued that the
original intent of the Constitution is the original meaning which meant by the framers. 3 I do not
agree with Berger’s argument that every Constitutional provision had a fixed and determinate
1 Brest, Paul. “The Misconceived Quest for the Original Understanding.” Boston University law review. 60, no. 2
(1980).
2 Bork, Robert H. “NEUTRAL PRINCIPLES AND SOME FIRST AMENDMENT PROBLEMS.” Indiana law
journal. 47 (1971).
3 Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 307–09 (2d ed. 1997)
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meaning and that meaning must be valid forever and centuries later. As a result of societal
changes many provisions have changed the original meaning and intend which was meant by the
Framers. Over the period many Amendments were interpreted differently by the Court.
According to the originalists judges must be confined to the original meaning which was
intended by the Framers. 4
On the other hand, non-originalist camp rejects originalists’ argument that the judges
must be confined to the original intent. They argue that the Framers cannot determinate the
original intent for the later generations and the Constitution will not keep up with the social
changes and spirit of the country. Prominent non-originalist scholar Ronald Dworkin claimed
that “there is no such thing as the intention of the Framers waiting to be discovered, even in
principle.”5
Over the time, the “original intent” argument was dropped by the originalist scholars and
replaced with the “original meaning” which make more sense. Because as Dworkin argued the
“original intent” cannot be determinate for hundred years later and it cannot be applicable for
new changes because it simple was not intended by the Framers. Many originalists believe that
the “original meaning” argument is more practical and evident.6
Non-originalist scholars presented very logical argument: one can does not establish the
original intent of the people who written the Constitution. This is very hard to draw a definite
conclusion and a single intent for a constitutional provision which was written by multiple
members of the Convention. One can say a provision may have various intent and not necessarily
4 Strang, Lee J. Originalism's Promise: A Natural Law Account of the American Constitution. Cambridge:
Cambridge University Press, 2019.
5 Dworkin, Ronald. “THE FORUM OF PRINCIPLE.” New York University law review. 56, no. 2 (1981).
6 Whittington, Keith E. “The New Originalism.” The Georgetown journal of law & public policy. 2, no. 2 (2004).
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a single definite intent. Aside from the “original intent”, both the originalists and non-originalist
believes on the original meaning. Non-originalists though maintained that even with the original
meaning the Constitution must keep up with the social changes and new demands for the
generations to come for a healthy society. Originalist also accept that the original meaning is the
public meaning of the Constitution when it was written and ratified.
In my opinion, the original intent should be taken from the original meaning and broader
public interest in current day. Because the Constitution did not cover many topics subjectively,
but it has fundamental framework. For example, the Constitution, when ratified, did not say
specific about gay rights or transgender rights, but it did say very clearly that everyone has the
same rights. So now if we just stick with the original intent, we will not be able to deliver justice
or some population of this country, but if we draw the original meaning of equality and broader
societal change in mind, we can say that every human being in this country has same rights.
However, on the judicial restraint, both the originalists and non-originalists argue that the judges
must be cabined to the original intent, allowing them to protect social interest under the
Constitution.
Judicial activism: This topic is very relevant to the discussions of “original intent”,
“original meaning” and the constitutional interpretation. According to legal scholars, judicial
activism is a philosophy of court decision making process where the judges allow their personal
beliefs to shape a decision regarding the public policy disputes. In many instances, judge’s
adherent to this philosophy, they ignore precedents which is a constitutional violation. 7
The term judicial activism was first introduced by a prominent historian and social critic,
Arthur Schlesinger Jr in 1947. He first used this phrase in January Fortune magazine article. He
7 Arthur M. Schlesinger, Jr., The Supreme Court: 1947, FORTUNE, Jan. 1947, at 202, 208.
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did not clearly say if the judicial activism was good or bad for the Court. Indeed, the idea of
judicial activism – not with this name though – was around longer than when Arthur Schlesinger
Jr first introduced.8 Before the twentieth century, legal scholars were aware of this philosophy
which they called it judicial legislation, and they believed it was necessary and left a positive
impact.9
Historically, the Supreme Court justices was divided by three main thoughts: judicial
activists, the self-restraint philosophy, and the middle group. According to Schlesinger the self-
restraint champions did not believe in judges' personal notions of justice. They maintained that
Constitution have fixed meaning, and deviation from those meanings is inappropriate.10
The era of New Deal in 1930s was the time when Judges started judicial activism to curb
government expansion. Critics also argue that some judges refused to interpret the Constitution
with traditional application, they instead seek to impose their personal preferences. 11
Justice Oliver Wendell Holmes Jr was among the self-restraint champions who argued
that this is the legislators’ job to make laws, and if they make mistakes, it’s up to them to the
peoples’ representatives to remedy them. Justice Holmes maintained that any other course to
make legislation will sap the vigor of our democracy, he pointed to the judicial activism, also
known as Court legislation. 12 To name a few cases where the Court was leaning toward judicial
8 Gerhardt, Michael. The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of Rights, 10 WM.
& MARY BILL RTS. J. 585. 2002.
9 Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Growth of the Common Law, 5 HARV. L.
REV. 172 (1891).
10 Ibid.,
11 Robert H. Bork, keeping a Republic: Overcoming the Corrupted Judiciary, Heritage Foundation Lecture No.
1147 at 4.
12 Kmiec, Keenan D. “The Origin and Current Meanings of ‘Judicial Activism.’” California Law Review 92, no. 5
(2004): 1441–77.
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activism are Fair Sentencing Act and Roe v. Wade 13 where the Supreme Court instead of the
Constitutional interpretation made the law based on their individual beliefs.
13 Roe v. Wade, 410 U.S. 113
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Bibliography:
Arthur M. Schlesinger, Jr., The Supreme Court: 1947, FORTUNE, Jan. 1947.
Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth
Amendment. Cambridge, Mass: Harvard University Press, 1977.
Bork, Robert H. “NEUTRAL PRINCIPLES AND SOME FIRST AMENDMENT PROBLEMS.”
Indiana law journal. (1971).
Dworkin, Ronald. “THE FORUM OF PRINCIPLE.” New York University law review. 56, no. 2
(1981).
Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Growth of the Common Law, 5
HARV. L. REV. (1891).
Gerhardt, Michael. The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of
Rights, 10 WM. & MARY BILL RTS. J. 585. 2002.
Kmiec, Keenan D. “The Origin and Current Meanings of ‘Judicial Activism.’” California Law
Review 92, no. 5 (2004).
Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 307–09
(2d ed. 1997)
Robert H. Bork, keeping a Republic: Overcoming the Corrupted Judiciary, Heritage Foundation
Lecture No. 1947.
Strang, Lee J. Originalism's Promise: A Natural Law Account of the American Constitution.
Cambridge: Cambridge University Press, 2019.
Whittington, Keith E. “The New Originalism.” The Georgetown journal of law & public policy. 2, no.
2 (2004).
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