Of all of the things that the writers of the US Constitution may have intended, it is quite certain that their intent was to create a democracy.
For all the rest, lawyers and judges and politicians bicker. Each word of the Constitution has been picked apart, split into meanings and procedures. There is a split opinion on how to divine these meanings; to give leniency to language and assume that the law works in the current best interests of the people, or to be strict and assume nothing, interpreting the law only as the original writers could have conceivably intended.
For many justices of the Supreme Court, this has been the block that drives opinions apart. Justice John Roberts said in his opening statement to the Senate judiciary committee, “a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around.” Essentially, that the law determines the law; that judges should not presume meaning.
Most of this meaning centers on the constitutionality of actions taken by a governing body. Is an agency acting within reason? Have the rights of a populace been infringed upon? Is this just? Is this right? Distill away all the excess, and what remains is a single question: does this government action preserve or erode democracy, and can we justify whichever outcome is true?
One might argue that democracy is best preserved by following the original intent. However, to step away from political theory for a moment, let us remember Roland Barthes, who famously argued that it was the impulse to view a piece of writing as a question with only one answer– that which the author intended– was an incredibly limiting type of readership. Less famously, he also indicates that refusing to believe that a text has a single, ultimate reading liberates the reader’s ability to engage with “God and his hypostases, reason, science, the law.”
To return to democracy, let us examine the upcoming cases of Bostock v. Clayton County, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, which the Supreme Court will hear this upcoming summer. All of these cases challenge whether or not the Equal Protection clause of the constitution applies to the rights of gay and transgender workers to not be discriminated against in the workplace. There are two things which are undeniable: to deny citizens of a democracy protection under the law is to erode a democratic cornerstone. The other undeniable fact is that the original writers of the Constitution almost certainly looked with ignorance or bigotry towards gay and trans Americans, and were not thinking of their protections when writing the Constitution.
Do we follow the likes of Justice Roberts, who would argue that the role of the court is to enforce the law, not shape it? Or are we inclined to agree with less originalist members of the Supreme Court? In the words of Barthes, are these authors that we should consider to be dead as well?
In the cases of Bostock, Altitude Express, and RG & GR Funeral Homes, if the Supreme Court were to rule against the original intent of the Constitution’s authors, they would extend democratic protections and preserve US democracy. In the end, it is the Supreme Court’s movement away from original intent that acts as a tide-break to democratic erosion. And perhaps that goal is not so far from the original intention of the Constitution at all.
Photo by Lois Long, “Supreme Court of the United States” (Encyclopedia Britannica), Creative Commons Zero License.