At the Sacramento Bee Erwin Chemerinsky does a pretty good job of distinguishing between the two present schools of thought on jurisprudence:
Originalism is the view that a constitutional provision means the same thing today as when it was adopted, and that its meaning can be changed only through a constitutional amendment. This approach to constitutional interpretation is attractive because there is a desire to think of Supreme Court decisions as being more than just a reflection of who is on the bench at a particular time.
But this is neither desirable nor possible. The original understanding of the Constitution is unknowable, and even if it could be known, it should not be binding today.
His argument is essentially that such a strict interpretation of the law impedes the Court’s ability to do justice. The opposite point of view is that it is not the Court’s role to do justice but to interpret the law. Doing justice is the responsibility of the Congress.
That the original understanding of the Constitution is unknowable is either a lie or no more true of the Constitution than of any other law. At what point does the understanding of a law become unknowable? After 200 years? After 100 years? After 50 years? The day after it is enacted? The authors of the Constitution left a substantial body of writing explaining what they meant and much of it is quite readable, unlike the turgid Supreme Court decisions of today.
The Supreme Court and the Congress operate along vastly different lines. The Congress runs for office every two (or six) years; Supreme Court justices serve for life (“in good behavior”). Congress makes its decisions for political reasons; the Supreme Court, presumably, through expertise in the law.
No Supreme Court justice has ever been removed from office via the impeachment process. It was tried once.
To argue that the justices follow their consciences rather than the law, as Mr. Chemerinsky does, is to argue for a much more openly political Supreme Court and, because of their lifetime tenure, a much more tyrannical Supreme Court. If we are to have a Supreme Court that rules by the seats of the justices’ pants, they should run for office like Congressmen.
That the Congress has failed to act time after time is a reasonable complaint. The remedy for Congressional inaction on the issues of the day is to stop re-electing the same do-nothing Congressmen term after term after term.