The Ravages of Constitutional Fundamentalism

The objective of the “originalist” approach is essentially to set aside post-war progressive case law.

The U.S. Supreme Court has issued a series of judgments over the past few weeks in which the five conservative judges imposed their views on their four progressive colleagues. In the Hobby Lobby ruling, the court held that a private company does not need to pay insurance charges for women’s contraception if doing so goes against the religious values of the company’s owners. Previously, in Harris v. Quinn, the court held that para-governmental employees do not have to pay union dues even if they are protected by the union. Since 2005, the direction of the Supreme Court under Chief Justice John Roberts has been clear: Through rulings on very specific cases, it wants to establish case law that would reverse advances in civil rights obtained between the 1950s and 1970s, reduce the state’s influence, and deregulate the economy.

Two things can explain the Supreme Court’s current direction. First of all, the conservative revolution that began under Ronald Reagan’s presidency ensured that the Republican White House would appoint extremely conservative judges at all levels of the federal legal apparatus. This created a pool of candidates that would eventually be named to the Supreme Court. What is new is the ideological fervor of the judges — the candidates are being chosen for the strength of their convictions above all else. For example, during the State of the Union address in 2010, the extremely conservative Justice Samuel Alito literally accused Barack Obama of lying by saying, “It’s not true!” after the latter stated that the Citizens United ruling (2010) would open the door to unlimited campaign financing. Until then, candidates had traditionally been chosen from a broader ideological spectrum and positions were not as polarized, even among conservatives.

Second, in the mid-1980s, conservative legal experts created a paradigm that would allow progressive post-war case law to be quickly reversed. In short, this “originalist” approach seeks to discover what exactly the Founding Fathers were thinking when they wrote the Constitution, a principle some call WWJMD? (What Would James Madison Do?), since Madison was the chief architect of the 1789 Constitution. This is done by analyzing the syntax of the Constitution and the choice of each word using its 18th-century meaning. Searching for overarching principles, like those that guided advances in abortion access in the Roe v. Wade ruling (1973), is set aside for a literal analysis that is very similar to the way sacred texts are interpreted. This kind of constitutional fundamentalism allows conservatives on the Roberts court to override case law and to state that they know the original meaning of the Constitution, which is the only legitimate approach in their area. Constitutional fundamentalism is a way to end legal and political debates by analyzing everything using the most limited interpretation of the Constitution possible.

Here at home, after appointing his supporters to the Senate, Stephen Harper’s government unsuccessfully tried to impose its candidate on the Supreme Court. Despite this, when the government tries to politicize legal issues, like in the United States, it is the credibility of the institution that suffers.