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Constitutional Interpretation as a Defense Against Tyranny

In their debates and considerations regarding the formation of an official constitution, the Framers of the United States Constitution were searching for ways to maintain a strong and legitimate government without appropriating what they saw as the flawed and dangerous characteristics of England’s government. Specifically, the Framers took exception to the communal style of England’s courts, and their overall lack of judicial independence.[1]

At the time, it had been considered historical precedent for sitting judges to serve at the pleasure of the reigning monarch. This practice led to politically active judges in both England and throughout the colonies, causing controversy for many of the colonists.[2] In fact, it was this heavy judicial dependence which is credited for the critique in the Declaration of Independence denouncing King George III for “making judges dependent on his will alone.”[3] The Framer’s view on a politically active judiciary, mixed with the philosophic backings of the influential Enlightenment thinker, Montesquieu, is what ultimately led them to constitute a separation of powers between the branches of government.[4] It was in their eyes, a way to prevent a representative government held accountable by the people from degrading into tyranny.

In the modern day, a specific duty of the judicial branch is for the Supreme Court to deliberate and rule on laws, legislation and executive acts challenged as unconstitutional. In this, their duty is to serve as independent, non-partisan arbiters who examine the meaning and relevance of a given case as it relates to the established law.[5] Above the door of the Supreme Court building in Washington D.C. the words read, “Equal Justice Under the Law.” However, as guardians and interpreters of that law, Supreme Court Justices have consistently utilized different techniques for ruling on judicial decisions[6] in ways they presume best provides equal justice under the law. This has led to comprehensive debates regarding the contrasting styles of constitutional interpretation,[7] as well as examinations on which of these styles best allows justices to execute their constitutionally prescribed duties. Broadly speaking, the two theories examined in this interpretive debate can be categorized as originalism and living constitutionalism.

Originalism is a theory of constitutional interpretation which claims that the content of the text is fixed at the time it was written, and that the practice of analyzing the Constitution should be constrained by the original meaning of that text.[8] Those who maintain originalism is the proper form of constitutional interpretation do so for multiple reasons. First, it is seen as a way to constrain the power of Justices, by not allowing them to override the legislative branch, and consequently the people themselves with their own personal views. Second, it is seen as an institutional check, providing the most concrete way to ensure legal cases are judged through the lens of an established process, rather than by the substance of the case and hence the view of that substance by unelected, insulated justices.[9]

Living constitutionalism, proposes the opposite. Under the living constitution theory, the deliberative process “centers on questions of the common good framed within the terms of a written constitution.”[10] Essentially, the Constitution is to be lived under, worked out over time, and updated accordingly.[11] In this, Justices on the Supreme Court are able to employ pragmatic techniques to come to conclusions which they see as advantageous to the case as it relates to the law. It is in this that the two styles of interpretation differ. Whereas originalists view the meaning of the Constitution as set, and that new applications can be applied to the old rules,[12] living constitutionalists see the meaning of the Constitution as a fluid set of guidelines which change with the times, views and political circumstances of the moment.

In this paper, the research will be conducted by further examining originalism and living constitutionalism in the context of the judiciaries established, safeguarded role to show how originalism best constrains unelected justices, protects the powers and integrity of the individual branches of government, and ultimately defends our republic from the slippery slope towards tyrannical rule.

Tyranny and Majority Rule

Throughout the countless discussions on tyranny, the concept of the rule of law has persistently been recognized by philosophers and scholars as an essential factor for stabilizing and preserving freedom. In modern considerations on the rise of tyranny and its relationship with the structure of constitutional governments, the conversation has centered around the apparent struggle between individual freedoms and the perceived duties of efficient democratic institutions.[13] Historically, the trends of tyrannical rule under one man or small oligarchic groups have originated from varied forms of suppressed freedoms, as well as a lack or complete dismissal of established law.[14] Within these traceable trends, one of the common occurrences from which tyranny has risen throughout society has been the occasional willingness of the populace to surrender power and forsake the personal assurances guaranteed by law simply to secure their own majority rule. Yet, this abuse has been countered over time by the implementation of written law under adequately structured governments, which when combined together serves as a guarantor of judicial equality for all citizens.[15]

In Politics, Aristotle assessed briefly the nature of tyrannical government and the ways in which the partisan rule of the masses ran counter to the perceived notions of “good government.”[16] At the heart of this approach was his understanding that good government under pure democracy was wholly dependent on the character of both the leaders and the governed.[17] In good government, one where moral character and principle are the established factors from which the rules of society are based, citizens can differ in their approach while still deliberating on the common good.[18] But for a purely democratic society to produce good government, these conditions for deliberation must be met without selfish or manipulative tactics being exercised by those making the decisions. By deviating and practicing these tactics, Aristotle argued, pure democracy would produce rampant extremity within the democratic structure of government.[19] What resulted would be the pull of the governed towards tyrannical rule by providing them with the means to claim power while avoiding civic deliberation amongst themselves.[20] Through this, singular tyrants would be able to obtain absolute power through controlling the masses, while disregarding the notion of good government and abusing the support of a submissive, self-interested populace.[21]

In any society where the majority can maintain absolute power over citizens without institutional safeguards, the commonly understood principle that government serves to protect essential rights is challenged. Specifically, in that when individual rights become subjective to the sole views of that majority, the duty of that government as a structural defense fails to serve its intended purpose of protecting said rights.[22] For this reason, Aristotle was skeptical and dismissive of pure democratic rule by the people, claiming extreme oligarchy and democracy themselves were nothing more than divided tyrannies.[23] This cynical view of extreme or direct democracy set the stage for future concerns on the procedural aspects included in a government’s setup, and its ability to operate effectively while avoiding the tyrannical abuses of the majority.

The Rule of Law, Judicial Independence and Governmental Philosophy 

Contrasting the perceived challenges represented in Athens’s structureless direct democracy, the American democracy represents a system in which a specific institutional design was prioritized.[24] Particular concepts expressed within the Federalist Papers and the U.S. Constitution are products of extended philosophic debate between the Framers, ranging in influence from the Magna Carta in 1215, the Glorious Revolution of 1688 and the theories of Montesquieu. At its base, American democracy and the central concepts of the Constitution surrounding judicial independence and separated powers evolved from the early experiences of England’s monarchical government, and the eventual relationship between the colonists and the Crown during the American Revolution.[25]

The Magna Carta, the royal charter of rights created in 1215, was formed amidst a power struggle between King John of England and his barons.[26] King John was inherently tyrannical, using the royal courts to confiscate excessive amounts of money while coercing people to enrich him through the forced purchase of his favor. Ultimately, his notorious financial carelessness wasted the entirety of his barons’ money and unified them in turning against the lawless king.[27] What resulted were initial negotiations and the eventual construction of the Magna Carta, a document meant to ensure King John and other future royals would be held as equals under the rule of law.[28]

While the Magna Carta established the principle that leaders were to be held to the same standards and rule of law, the concept of a biased judiciary dependent on the needs of a monarch remained a consistent problem within that law. In this, one of the most common abuses of compromised judicial power were the practices seen in governments utilizing the divine right of kings’ theory, which posited that monarchical rulers were appointed by God to rule absolutely.[29] With this theory came an abundance of power for the monarch, crippling opposition and labeling dissenters as impious actors seeking to work against the word of God. This threat of blasphemy placed the king above the law despite the structural safeguards and effectively allowed the current monarch to equip the judiciary as a tool which aided in controlling and furthering their own tyrannical agenda.[30]

Specifically, this manipulative approach to controlling and swaying judicial influence could be seen in the reign of King James II, who served as king of England from 1685-1688.[31] James II was a devout Catholic and used his power as the reigning monarch to advance his Catholic peers to positions of power, often against the established regulations of the current government.[32] Under the shield of the divine right of kings’ theory, James II removed regulations for occupying public office, and used his prerogative powers to advance his religious agenda through the appointment of Catholic loyalists.[33] The final abuse of power prior to the Glorious Revolution of 1688 came in 1687, when King James II attempted to dissolve the parliament and reshape the government through the purging of his anti-Catholic opposition.[34] His motivations led him to appoint devoted loyalists to control the government and the judiciary, while exercising their distinct powers as direct extensions of his monarchical authority.

What resulted was the Glorious Revolution, and the large-scale resistance of both the people and the establishment. Ultimately the divine right of kings’ theory was rejected, and the subsequent standard for members of the judiciary was the contrasting theory of “good behavior,” which restricted judicial loyalty to the executive and promoted independence through insulated judicial terms. Within this new approach to judicial independence, the tenure and neutrality of a judge was dependent on their own personal conduct as opposed to the subjective pleasures of the executive.[35] Through this, the judiciary was a separate entity which could execute its powers without fear of reprisal, and the standard in which their removal was executed was based on the evidence presented in showcasing their abusive or “bad” behavior.[36] As a whole, the Magna Carta sought to apply the law equally, while the Glorious Revolution established judicial independence and ensured that the equal application of that law was grounded in set principles independent of executive preference. Both of these principles laid the ideological framework for the notion that divided government reliant on both the will of the people and the unbiased rule of law was the most efficient way to avoid tyrannical rule.

Later, in the decades prior to the Framer’s debates and the establishment of the U.S. Constitution, Enlightenment thinker Montesquieu wrote The Spirit of the Laws. Within this, Montesquieu examined the nature of different governments and their distinctive ability to reflect the moral values of the people.[37] In doing so he identified the structural conditions in which political liberty is attained through specifically designed, consensual governments.[38] Montesquieu held a firm belief that true political liberty was held in the arrangement and practices of constitutional government.[39]

Also, in examining the type of constitutional government best suited to pursue and protect political liberty, Montesquieu claimed to prefer a Republic.[40] He defined the Republican form of government as, “that in which the body, or only a part of the people, is possessed of the supreme power.”[41] To him, this government differed from a monarchical system in that the power was not isolated solely at the top, and was dispersed to self-governing people, whether directly or indirectly. As part of Republican government, Montesquieu identified two sub-types of government, democracy and aristocracy. Democracy was “when the body of the people is possessed of the supreme power”[42] while aristocracy was when the power “is lodged in the hands of a certain number of people.”[43]

Montesquieu believed that these contrasting interests seen within a Republic needed to be balanced in order to achieve a properly functioning society.[44] Similar to Aristotle, Montesquieu thought that a pure democracy would struggle to endure given that the primary responsibility of protecting liberty would be reliant on the views and virtues of the citizens making up the majority of the governing class.[45] Yet, aristocratic governments brought with them similar, tyrannical concerns, in which small groups of governing elites would make up the ruling class while potentially infringing on citizen’s rights. The solution to this, according to Montesquieu, was to find the ideal middle ground where aristocracy boarders on democracy.[46] In the practical sense, this meant furthering the idea that the practice of democracy itself should be held accountable to the structural institutions of law in order to avoid tyranny and protect liberty. This was done by progressing the concept of representative democracy, while focusing on the establishment of constitutional norms and a specific separation of powers between the different branches of government.[47]

The Framer’s Debates and the Construction of the U.S. Constitution

In incorporating the authoritative equality seen in the Magna Carta, the judicial independence resulting from the Glorious Revolution, and the central constitutional concepts of Montesquieu’s argument in The Spirit of the Laws, the Framers sought out to establish an ideal government safeguarded against tyrannical rule.[48] During their debates and considerations on the specific internal characteristics of the new government, the Framers presented numerous philosophical arguments for the direction in which the country should go. One collection of works which heavily influenced the development of the United States was the Federalist Papers, authored by James Madison, John Jay, and Alexander Hamilton.[49] The Federalist Papers, published in The Federalist, were a collection of newspaper essays meant to encourage voters of New York to ratify the new Constitution, which was drafted at the Constitutional Convention in Philadelphia.[50] What resulted, was an essential collection addressing the central themes of government expressed in the proposed constitution.[51]

In Federalist No. 10, an essay authored by James Madison, the discussion was focused on individual rights and the danger of majority factions in overtaking those rights.[52] According to Madison’s argument, individual rights were a specific focus in the creation of the U.S. Constitution. In his argument, the rights of independent people being protected by the rule of law is essential for a representative society to endure.[53] Additionally, Federalist No. 48, also authored by James Madison reinforced the Framer’s belief that a separation of powers was necessary in maintaining constitutional order and preserving representative democracy. Madison stated that the centralization of the powers within the legislative, executive or judicial branches would “result undoubtedly in despotic government.”[54] This is at the heart of the institutional design showcased in the U.S. Constitution, which explicitly states the permitted powers given to the different branches of government in order to ensure they remain balanced.

Hamilton took the argument further in Federalist No. 78, examining the concept of judicial review within the separated powers of government.[55] This received special attention due to the amount of power being placed within the legislative branch. Given the organized flow of representation, with legislators held accountable to the will of the people, the construction of law was entrusted to the legislative branch. The only duty of the judiciary, according to Hamilton, was to view the constitutionality of the actions performed by the other branches while not actually engaging in the process in which laws were made. At the heart of the Federalist Papers was the understanding that in order for government to operate in accordance with the historical and philosophical precedent set for controlling tyrannical rule, the U.S. Constitution and the implementation of its values would need to account for the ways in which tyranny overtook leadership of the past. This meant establishing a representative government held accountable to self-governing individuals and a structured, procedural judiciary that operated in line with its respective, constitutionally prescribed duties.

The Supreme Court

With the Supreme Court of the United States, specific procedures and reverence to the Constitution have been seen as the keys to ensuring justice. Throughout the years and transitions seen in the Court, legal decisions have been handed down utilizing numerous decision-making styles, and the outcomes of these styles have provided a valuable framework for examining the dangers of a judicial body not held accountable to the text it is tasked with preserving. By examining distinct cases like District of Columbia v. Heller (2008), Texas v. Johnson (1989), and Buck v. Bell (1927), originalism and living constitutionalism can be examined for the ways they approach the right of citizens to defend against tyrannical governments, protect the essential freedoms of speech and expression, and provide equal protection under the law through procedural, law based practices. The difference between the contrasting theories is simple, in that while living constitutionalism can in fact provide good or popular results, it also has the potential to switch course and eliminate rights in biased, undemocratic fashion. However, originalism, for all its faults, constrains justices to the text and meaning of the constitution, therefore ensuring that judicial rulings protect legal rights even when they run counter to the personal views of the justices themselves.

First, is the concept of free people and their right to self-defense. As noted by James Madison in Federalist No. 46, governments are fearful of trusting their people with weapons, and given the nature of the United States divided levels of power, the Second Amendment of the Constitution provided the people with the means necessary to prevent tyrannical abuse from centralized government should it arise to infringe on other protected liberties.[56] In District of Columbia v. Heller, a case authored by Associate Justice Antonin Scalia, originalism can be viewed on full display for its stylistic approach and reverence to both the written word and meaning of the Constitution. In Heller, the District of Columbia passed the nation’s most restrictive gun control ordinance which banned the private possession of handguns.[57] Individuals could still own shotguns and rifles, but only if they followed a strict set of rules, like registering the weapons and keeping them unloaded or restricted with trigger locks. However, the chief of police, under certain circumstances, could issue a one-year certificate for handguns.[58] Dick Heller was a security officer who obtained one of these permits to carry a handgun on duty but was denied when he asked for a permit to carry a handgun for self-defense. Heller sued, claiming the new D.C. law violated his Second Amendment right to bear arms.[59]

Scalia, a fierce advocate of originalism spoke on behalf of the Court and dished out the ruling in a divisive 5-4 vote in favor of Heller. He began his reasoning by breaking down his approach, which was an in depth look at the text of the Second Amendment. He identified two key parts, the two sections of the operative clause, “Right of the People,” and “to keep and bear arms,” as well as the prefatory clause, “A well-regulated Militia, being necessary to the security of a free state.”

To begin, Scalia focused on the operative clause and “Right of the People.” He stated, “The unamended Constitution and the Bill of Rights use the phrase ‘right of the people’ two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause…All of these instances unambiguously refer to individual rights, not collective rights, or rights that may be exercised only through participation in some corporate body.”[60] Having identified and narrowed down the concept of the “right of the people” as it related to the understandable original meaning of the Constitution, Scalia then turned to the prefatory clause and what the Constitution describes as “the Militia.” Scalia discovered through founding-era sources that in colonial America, the militia consisted of a subset of “the people” – those who were male, able bodied, and within a certain age range.[61] Based off his textualist walkthrough of the Amendment’s meaning, he was able to accurately account for the meaning of the right, and to whom the right was to be applied to. Specifically, the right of individuals not necessarily involved in a collective body, and to “the people,” not necessarily an established group of state and congressionally regulated military actors.

As he continued through, Scalia then addressed the object of the discussion, “Arms” and the verbs associated with the object, “keep” and “bear.” The term Arms applied in the 18th century to weapons, the same as it did at the time of Scalia’s reasoning in 2008. The dictionaries of the time described “keep” as, “to retain, not to lose,” and “bear” meant “carry.” Thus, Scalia concluded the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”[62]

Lastly, Scalia read through the remaining section of the prefatory clause, “Security of a Free State.” The gist of it being that when able bodied men were trained and prepared, they would be able to oppose tyranny should it form and ultimately defend themselves. As a whole, Scalia was able to interpret the meaning of the text from the Second Amendment and conclude with reasonable certainty that the objective meaning of the text at the time it was written was to secure the rights of individuals to retain weapons for defense purposes.[63] This example of Scalia’s originalist approach to the Second Amendment is a clear representation of the structured, researched, unbiased approach the judiciary should aim to provide as an independent branch which exists outside the sphere of democratic accountability. Regarding essential rights in the Constitution, attempts to interpret their applicability using living constitutionalism can result in bitter disputes surrounding conflicting interests throughout the Court and within the justices themselves as opinionated actors in an always changing society.

This can be seen specifically in two cases, Texas v. Johnson (1989) and Buck v. Bell (1927). In these, living constitutionalism is viewed in both a dissenting opinion and a majority opinion to shine light on the biased nature of the interpretive style and signal the potential tyrannical tendencies expressed in the utilization of it. First, is Texas v. Johnson, which dealt with determining the validity of flag burning as a protected First Amendment right.[64] In 1984, a man named Gregory Lee Johnson burned an American flag outside of the Republican National Convention in Dallas, Texas as a way to showcase his displeasure with the Reagan Administration’s policies. However, Texas had specific laws on the books which outlawed the burning of the American Flag, and Mr. Johnson was promptly arrested, tried, and convicted for his actions.[65] The Supreme Court decided to hear the case after Mr. Johnson appealed his sentence on the grounds that his actions were symbolic of the free speech afforded to him in the First Amendment. The issue before the Court was to decide whether or not flag burning was in fact symbolic, protected speech.[66]

In a 5-4 ruling, the Court did determine flag burning to be protected free speech, and the majority opinion given provides a great example of originalist interpretation expanding past potentially biased or divided partisan lines. Speaking for the Court in the majority opinion was Justice William Brennan, an associate justice known for his more liberal jurisprudence. In this opinion was a specific focus on two aspects of the First Amendment. First, was that potentially outrageous actions were not reason enough for Constitutional rights to be taken away. Secondly, Justice Brennan and the concurring justices determined political speech to be the main motivating factor for the First Amendment in the first place.[67] On these points he stated, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[68]

Additionally, the more conservative Justice Antonin Scalia joined the majority despite his strong personal objections to flag burning in practice. While he offered no additional statements in his concurrence with the majority opinion, years later Justice Scalia explained why he joined the more liberal wing of the Court to defend flag burning. He stated, “I hate the result in Texas v. Johnson…I would send that guy to jail so fast if I were king…However, we have a First Amendment, which says that the right of free speech shall not be abridged – and it is addressed in particular to speech critical of the government. That was the main kind of speech that tyrants would seek to suppress.” This was in line with the understanding of the Founders that self-government is reliant on the ability of citizens to criticize the government.[69] In presenting originalism as the best form of constitutional interpretation, specifically as a means to warding off tyrannical tendencies within a constitutional republic, the unified ideological support in Texas v. Johnson is a strong indicator of the underlying principles behind the interpretive style. Regarding a challenge of legality, the Court had to take a step back from personal bias, no matter how strong it was, and acknowledge the words and meaning of the First Amendment as it was expressed in the Constitution.

While originalism was the interpretive style used by the majority in Texas v. Johnson, there was an obvious dissent in the 5-4 ruling by justices who presented their own arguments in the form of living constitutionalism. This dissent was representative of the potential dangers surrounding an unrestrained judiciary which seeks to exercise the powers of the legislative branch without being accountable to the people. Writing his own dissent was Associate Justice John Paul Stevens, who argued that because the American flag was a symbol of “national unity,” Texas had a right to outlaw the desecration of it if they deemed that national unity outweighed protected free speech.[70] While there may have been merit to the opinion and reasoning utilized by Justice Stevens as it related to policy and public opinion, it still does not seem to represent sound legal logic in the sense that law usually ties back to some source of judicial rule, statute or in this case, the Constitution. Through this lack of reference to the Constitution and its original meaning, Justice Stevens utilized the ability to issue rulings as he saw fit, rather than acknowledging the text of the Constitution, examining the meaning behind that text, and ruling accordingly despite personal objections.

In doing so, his form of constitutional interpretation in this case attempted to single handily judge the quality of policy, rather than acknowledge constitutional provisions which specifically protects broad political expression. In a structural government built on the Constitution and a reliable division of power, this approach seems not only unconventional, but dangerous. As a case, the opinions in Texas v. Johnson shine light on the potentially biased nature of the independent judicial branch and proves the point that originalism itself is not just another form of masked judicial activism. Rather, originalism in Texas v. Johnson represented a process which itself prioritized the words and meaning of the Constitution over any man or group of unelected officials who seek to push the dangerous notion that what’s unpopular to the majority must equate to illegality.

In addition to potential suppressions of the fundamental rights, the living constitutionalist interpretive style also runs the risk of simply denying the protections of law to certain groups of citizens due to the lack of barriers preventing the justices of that time from ruling based off their potential prejudices. The justices are human, they have opinions, and without the guidance of the Constitution they will eventually stray from it.[71] For example, when using living constitutionalism to examine constitutionality rather than actually observing the meaning of the Constitution, judicial results can and will be made to please the majority based off the current social expectations in that specific time period. While this was attempted through the dissent in Texas v. Johnson, the unrestricted, undemocratic ability to change the essential meaning of the supreme law ultimately failed. Yet, there are plenty of examples of the living constitution theory maintaining a strong majority within the Court. In this, advocates of living constitutionalism fail to acknowledge the threat which rises from their desire to modernize the constitution through means outside the amendment process. Rather than amending the ratified Constitution through a democratic process held accountable to the people, the justices tap into aristocratic power, and rationalize what they see as their good intentions while ignoring the potential for future justices to abuse citizens through the same lack of formal process. There is already a process for making and changing the law and attempts to undermine or subvert the process do nothing but deteriorate the shield which protects a society of self-governing people from tyrannical maneuvering.

This risky, non-procedural judicial abuse can be seen clearly in Buck v. Bell (1927), a case focused on the compulsory sterilization of those deemed “feeble minded.” Within Buck v. Bell, the Court was tasked with determining whether such procedures violated the due process and equal protection rights afforded to citizens in the Fourteenth Amendment.[72] Carrie Buck had been admitted to a mental institution in Virginia with a condition that had been present in her family for three generations.[73] Given this, Carrie Buck’s situation fell under a Virginia law which allowed for the sexual sterilization of the “feeble minded” in order to “promote the welfare of society.”[74] The case was brought before the Court after challenges to the law sought to protect the patient’s rights from governmental overreach.

In a stunning majority opinion authored by Associate Justice Oliver Wendell Holmes Jr., the Court ruled that the required medical hearing necessary for the procedure to occur was adequate for ensuring the practice satisfied the process of the law.[75] The justification of the Court was not one based on Constitutional principles[76] and an in depth look at highlighted individual rights in the Constitution, but rather an attempt to promote the “well-being” of society as they saw fit at the time. This can be seen in Justice Holmes’ opinion in which he stated that the nation needed to prevent “being swamped with incompetence,” and that “three generations of imbeciles are enough.”[77]

According to Stephen Siegel, Research Professor and Associate Dean for Research Scholarship at DePaul University College of Law, Buck v. Bell has consistently been seen as a “parody of justice,” which rests “on rhetoric rather than logic or precedent.”[78] In understanding Buck v. Bell to be a parody of justice void of legal principles, one can see the very appeal of originalism within an independent Court completely unrestrained by anything other than “good behavior.” Tyrannical governments have no structural restraint, and a judiciary made up of unelected judges should not be determining the permissibility of compulsory sterilization based off nothing more than their personal preference for when “incompetence” should be eliminated. This reverence to the written word and the meaning behind it is exactly why the Constitution exists in the United States and why originalism best satisfies the desire for an unbiased judiciary that when constrained prevents tyrannical tendencies. The law is supposed to be impartial; it is supposed to be restrained through procedure, and it is supposed to be held accountable to something more than the potential prejudices of fallible individuals.


In summary, the interpretive styles of originalism and living constitutionalism can viewed for the ways in which they support the safeguarded framework of our constitutional republic. The United States was designed specifically to address the threat of tyrannical ambition seen in previous governments, and the judiciary itself has always played a large role in preserving the fragile idea of self-governance free of tyrannical rule. In restraining the powers and abilities of unelected justices, originalism provides the most efficient understanding for an interpretive style which preserves the integrity of the judiciary. It forces justices to acknowledge the limitations of their role, approach the Constitution with a clear understanding of its purpose, and eliminate the tempting tendency to legislate from the bench. If the intended purpose of our structurally designed government is truly to prevent tyranny, then each branch must perform its duties with structure, utilizing the procedural aspects of their prescribed roles in order to ensure the survival of a representative, self-governing society. For these reasons, originalism best satisfies the conditions for constitutional interpretation used to provide a defense against tyranny.



[1] Ervin, Sam. “Separation of Powers: Judicial Independence,” Law and Contemporary Problems, Vol. 35, No. 4. (1970): 108-127.

[2] Ibid, (1970).

[3] Ibid, (1970).

[4] Wright, Benjamin, F. Jr. “The Origins of the Separation of Powers in America,” Economica, Vol. 40. (1933): 169-185.

[5] Barack, Aharon. “The Role of the Supreme Court in a Democracy,” Israel Studies, Vol. 3. No. 2. (1998): 6-29.

[6] Ibid, (1998).

[7] Adler, Matthew D. “Judicial Restraint in the Administrative State: Beyond Counter Majoritarian Difficulty.” University of Pennsylvania Law Review, Vol. 145. No. 4. (1997): 759-892.

[8] Solum, Lawrence B. “Originalist Methodology.” The University of Chicago Law Review, Vol. 84. No. 1. (2017): 269-295.

[9] Gorsuch, Neil. A Republic, If You Can Keep It. Crown Forum. New York. First Edition. (2019).

[10] Goldford, Dennis J. “The Political Character of Constitutional Interpretation.” Polity, Vol. 23. No. 2. (1990): 255-281.

[11] Fleming, James E. “Fidelity, Change, and the Good Constitution.” The American Journal of Comparative Law, Vol. 62. No. 3. (2015): 515-545.

[12] Scalia, Antonin. Scalia Speaks. Crown Forum. New York. Edited by Christopher J. Scalia and Edward Whelan. (2017).

[13] Allan, T.R.S. “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism.” The Cambridge Law Journal, Vol. 44. No. 1. (1985): 11-143.

[14] Cicero, Marcus Tullius. “Tyranny.” in How to Run a Country: An Ancient Guide for Modern Leaders. Princeton; Oxford. Princeton University Press. (pp.56-65). (2013).

[15] Hawke, Jason. “Judicial Equality, Literacy, and Written Law.” In Writing Authority: Elite Competition and Written Law in Early Greece. (pp. 101-129). Dekalb. Cornell University Press.

[16] Aristotle, Baker, E. and Stalley, R. Politics. Oxford University Press. (2020).

[17] Jordović, Ivan. “Aristotle on Extreme Tyranny and Extreme Democracy.” Historia: Zeitschrift Für lte Geschichte, Vol. 60. No. 1. (2011): 36-64.

[18] Boesche, Roger. “Aristotle’s ‘Science’ of Tyranny.” History of Political Thought, Vol. 14. No. 1. (1993).

[19] Aristotle, Politics, (2020).

[20] Boesche, “Aristotle’s Science,” (1993).

[21] Jordović, Aristotle on Extreme Tyranny,” (2011).

[22] Keats, Jonathon. “What if the Majority Freely Votes for Tyranny? Limits on the Reach of Democratic Rule are Essential to Maintain Liberty: All Edition. The Christian Science Monitor. (2003).

[23] Aristotle, Politics, (2020).

[24] Wolin, Sheldon S. “Norm and Form: The Constitutionalizing of Democracy.” In Xenos N. (Ed.), Fugitive Democracy: And Other Essays. Princeton; Oxford. Princeton University Press. (pp. 77-99). (2016).

[25] Dickinson, Harry T. “Magna Carta in the American Revolution.” Institute of Historical Research (pp. 79-100). London: University of London Press. (pp.79-100). (2018).

[26] Foxley, Rachel. “More Precious in your Esteem than it Deserveth? Magna Carta and Seventeenth-Century Politics.” In Goldman, L (Ed.), Magna Carta: History, Context and Influence. (pp.61-78). (2018).

[27] Potter, Harry. “Magna Carta” in Law, Liberty and the Constitution: A Brief History of the Common Law. Woodbridge, Suffolk: Rochester, NY: Boydell & Brewer. (pp.69-76). (2015).

[28] Ibid, (2015).

[29] Vanaskie, Thomas I. “The Independence and Responsibility of the Federal Judiciary.” Villanova Law Review, Vol. 46. No. 4. (2001).

[30] Ibid, (2001).

[31] Vallance, E. The Glorious Revolution. (2011).

[32] Ibid, (2011).

[33] Ibid, (2011).

[34] Ibid, (2011).

[35] Prakash, Saikrishna and Steven D. Smith. “How to Remove a Federal Judge.” The Yale Law Journal, Vol. 116. No. 1. (2006).

[36] Ibid, (2006).

[37] Montesquieu. The Spirit of the Laws. Editor Michael Julius. Politics 403 Reader. (2019).

[38] Callahan, Keegan. “Liberal Constitutionalism and Political Particularism in Montesquieu’s ‘The Spirit of the Laws’.” Political Research Quarterly. Vol. 63. No. 3. (2014): 589-602.

[39] Montesquieu, The Spirit of the Laws, (2019).

[40] Ibid, (2019).

[41] Ibid, (2019).

[42] Ibid, (2019).

[43] Ibid, (2019).

[44] Ibid, (2019).

[45] Manicas, Peter T. “Montesquieu and the Eighteenth-Century Vision of the State.” History of Political Thought, Vol. 2. No. 2. (1981): 313-347.

[46] Montesquieu, The Spirit of the Laws, (2019).

[47] Manicas, Montesquieu, (1981).

[48] Ervin, Separation of Powers, (1970).

[49] Banning, Lance. “The Federalist Papers.” In Estes T. (Ed.), Founding Visions: The Ideas, Individuals, and Intersections that Created America. Lexington, Kentucky: University Press of Kentucky. (pp. 133-144) (2014).

[50] Ibid, (2014).

[51] Ibid, (2014).

[52] Paskewich, J Christopher. “Reconsidering the Status of Federalist 10.” Journal of Political Science, Vol. 39. No. 1. (2011).

[53] Fleck, Robert K. and F. Andrew Hansen. “Judicial Review as a Constraint on Tyranny of the Majority.” Journal of Law, Vol. 29. No. 2. (2013).

[54] Hamilton, Alexander, James Madison and John Jay. “The Federalist Papers.” In the Federalist Papers. Yale University Press. (2009).

[55] Tushnet, Mark. “Constitutional Interpretation and Judicial Selection: A View from the Federalist Papers. Southern California Law Review, Vol. 61. No. 6. (1988).

[56] Hamilton, The Federalist Papers, (2009).

[57] District of Columbia v. Heller, 554 U.S. 570, (2008). Accessed on Supreme Court 2020.

[58] Ibid, (2008).

[59] Ibid, (2008).

[60] Ibid, (2008).

[61] Ibid, (2008).

[62] Ibid, (2008).

[63] Ibid, (2008).

[64] Texas v. Johnson, 491 U.S. 397 (1989). Accessed on United States Courts, 2020.

[65] Ibid, (1989).

[66] Ibid, (1989).

[67] Ibid, (1989).

[68] Ibid, (1989).

[69] Dry, Murray. “Flag Burning and the Constitution.” The Supreme Court Review. (1990).

[70] Texas v. Johnson (1989).

[71] Beard, Charles A. “The Living Constitution.” The Annals of the America Academy of Political and Social Science, Vol. 185. (1936).

[72] Buck v. Bell, 274 U.S. 200 (1927). Accessed on Library of Congress, 2020.

[73] Ibid, (1927).

[74] Ibid, (1927).

[75] Ibid, (1927).

[76] Cynkar, R. “Buck v. Bell: Felt Necessities v. Fundamental Values? Columbia Law Review, Vol. 81. No. 7. (1981): 1418-1461.

[77] Ibid, (1927).

[78] Siegal, S. “Justice Holmes, Buck v. Bell, and the History of Equal Protection. Minnesota Law Review. (2006).

Will DurbinWill Durbin

Will Durbin

Will Durbin is currently a senior at Coastal Carolina University where he studies Political Science and English.

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