THE ORIGINALIST DOGMA

The decision of the US Supreme Court rec ognising same-sex marriages across states has brought to the fore an impor tant concept in American constitutional law: the concept of “originalism” expounded by the dissenters on the bench. The ruling has sparked a debate across India, particularly since not too long ago the Indian Supreme Court had set aside a Delhi High Court ruling that consensual same-gender adult sex is not criminal. The debate over originalism is relevant for India.

Simply put, “originalism” refers to the principle of interpretation that views a constitution’s meaning as being fixed at the time its enactment. It does not necessarily mean an absolute dogma of never changing at all with the times. However, it does entail a dogma of considering libertarian reading of the constitution as “straying” from what was originally envisaged.

To be fair to originalists, they do not necessarily stick solely to the “letter of the law”. However, they may effectively end up doing so. Their interpretation of the “spirit of the law” is their reading of what the original authors could have intended as the spirit in those times.

For example, if a constitution were to ban the death penalty by hanging, an originalist may not restrict his reading of the ban solely to “hanging”. He may say the ban also extends to beheading. However, he could well hold that some other form of capital punishment not originally envisaged is not banned. He could argue that the new form of inflicting death could never have been envisaged when the constitution was originally written. Equally, he could uphold a new-age death penalty process by arguing that it was the pain of hanging that drove the spirit behind the ban, and the new form of death penalty does not inflict the same level of pain.

That is how originalist dissenting judges in the US Supreme Court’s same-sex marriage ruling get to make arguments like: “dignity is not a state-guaranteed fundamental right”. They find same-sex marriages as mind-bending as multipartner marriages, which despite having strong roots in “cultures around the world” (how about a peek at Mormons in the backyard) could never have been intended to be recognised in the US.

Conservative originalists frown upon reference to constitutional judgements of foreign societies – irrelevant to the original authors. Justice Antonin Scalia says he reads Israeli judgements when he wants to shock himself and does not have much to learn from British judges. Ironically, and thankfully, Indian judges allow for osmosis from foreign societies regardless of whether they are “liberal” and “conservative”.The judgement refusing to decriminalise consensual adult homosexuality, and the one recognising rights of the “third gender”, extensively borrow from judgements in foreign societies under foreign constitutions.

The dogma of originalism is just a shade away from dogmatic approach of religious fanatics – say, the Taliban’s interpretation of the Holy Quran. Both have the strong belief that every aspect of human life was originally envisaged and reduced to writing, to be interpreted in the spirit they alone understand. Only a shade different, because originalists always argue that if societies indeed want change, they should elect law-makers to amend the constitution. For the Taliban (or for that matter the orthodox segments of any religious faith), the thought of amending The Book would be a bigger heresy than interpreting it “liberally”.

Amending the constitution in any political system is something that, by design, should necessarily be very difficult. In the words of BR Ambedkar (defending critique that his draft made amending the Indian Constitution very difficult), authors of the constitution had no axe to grind beyond securing a good and workable constitution. On the other hand, parliament necessarily comprises partisans whose agenda would be obstructed and limited by the constitution.Their agenda would be to demolish these hurdles and so should not be allowed to amend the constitution easily.

Yet, he believed India’s constitution-amending limitations were the “simplest” compared with other constitutions such as those of the US and Australia. He was prescient, because we have one of the most-amended constitutions in the world. And our Supreme Court had to adopt a non-originalist interpretation of the law on amendment to outlaw amendments that alter the original basic features of the constitution.That’s something to chew on.

(This piece was published in the July 3, 2015 editions of Mumbai Mirror, Bangalore Mirror, Ahmedabad Mirror and Pune Mirror)

Tweets @SomasekharS

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