We have heard the term originalism a lot lately in the news. The term tends to come up every time nominations to the SCOTUS are being discussed. If you are an exclusive and frequent reader of Vox, Huffington Post, Buzzfeed and yes even Cosmo, then you have probably been convinced that originalism is dangerous concept that is way outside the mainstream of thought and only propagated by extreme right-wing nut jobs at their monthly meetings for the “Society of Patriarchy and Domination of Poor People.” Well you would be wrong. Without going into the long winded academic definition of originalism, the heart of the concept is the underlying belief that each of the three coequal branches of government each have their own specific role to play in governing our society; Executive to enforce, Judicial to Interpret/Judge and Congressional to create. Our founding fathers carefully considered how to best separate out each of these powers in a manner that would act as a safeguard against tyranny because they understood that any one branch gaining control of either of the other’s branches stated responsibility would lead to abuse of power. Additionally, as one branch encroaches on the powers granted to another branch it significantly diminishes their power to act as a check and balance on the invading branch.
Recently many Democrats have been demonizing this concept. They have tried to paint it as old fashioned and no longer applicable to modern life. Well I would argue that liberty and governance timeless concepts and do not change because our technology improved. Just because the founding fathers had never envisioned the advent of the cell phone or the internet does not mean that the principles of free speech are no longer applicable because it is a new technology. When they are not decrying originalism as relic to be discarded they are trying to paint it as a concept that usurps our freedoms. This of course is laughable because the concept of originalism is the vanguard of freedom by dictating that limits to power and authority exist on each of the branches of government. Two areas where we have seen the debate around originalism grow heated recently are in regards to the Judiciary and Executive branches.
If you not done so I highly recommend that you watch the confirmation hearings for Judge Gorsuch for his SCOTUS nomination. There is no clearer cut example of the beliefs in originalism than in the way that he answered his questions regarding many of his judicial beliefs and decisions that he reached on previous cases. While many have tried to characterize him as cold and dispassionate, I argue that is the exact temperament that is required for someone sitting on the highest court in the land. The concept of originalism does not just relate to the way in which the constitution is interpreted, but is used in any decision made by the judge. They will simply interpret the law as written and not rely on their feelings or personal beliefs to sway their decision. They do not believe it is the role of the judiciary to use their positions to create or rewrite poor laws.
Recently Secretary Pruitt spoke about what he is calling “EPA Originalism” and stated, “Agencies at the federal level are part of the executive branch, they exist to enforce the law, not make the law.” This is an important distinction between how the EPA and other federal agencies are likely to be run under the Trump administration versus the way they were run in the previous administration. In the last administration federal agencies were given broad leeway to create regulations that carried the weight of law. We would never give the cop on the street the power to create and enforce laws simultaneously because it would eventually lead to massive abuse, but then why do we allow federal agencies what amounts to the same power. The regulatory philosophy is to limit regulations to situations where it is necessary in the best interest of the American public and leave the creation of the laws up to the executive branch that was originally granted that power, Congress.
The Democrats will fight the concept of originalism tooth and nail. This is because in the current climate it is easier to push your policy agenda by judge shopping for an activist judge who believes it is within his judicial purview to change laws with which they disagree or having a federal agency create a regulation that acts the same as a law in that it is enforceable by the federal government. Enacting policies in this manner flies in the face of our founders who created the Congressional branch of government to fill this need. While many on the Left will feel that this process is too cumbersome and slow, the creation of new laws was designed to be a deliberate process where compromises were hammered into agreements via coalitions of citizens and representatives. When judicial activists and runaway bureaucrats hijack the law creation process to push their own personal partisan politics we slide a little closer to the edge of tyranny.