Is the American judiciary subservient to the rule of the majority?
One of the challenges often made to originalism is that so many other countries do not appear to follow it. And if a large numbers of countries are not following it, then how can originalists claim that the failure to do so is illegitimate or unlawful? In my view, this criticism of originalism is much weaker than is normally thought for two reasons.
1. First, the premise – that originalism is not followed throughout the world – is not at all clear. In part, there are places, like Australia, Turkey, Singapore and Malaysia, that do sometimes employ explicitly originalist arguments.
But this may only be the tip of the iceberg. To begin with, some constitutions explicitly require what is wrongfully treated as nonoriginalist judicial review. For example, the South African Constitution requires the courts to employ proportionality analysis. If a South African court employs proportionality analysis, that is originalism, not nonoriginalism.
Moreover, if one follows original methods originalism – where originalism requires that interpreters employ the interpretive methods deemed applicable to the Constitution at the time of its enactment – then courts in other places which do not appear to be following originalism might actually be doing so. For example, imagine a constitution were enacted in Europe today that did not specify how its provisions should be interpreted. If the dominant mode of interpretation in that country and in Europe generally involved proportionality, then it might be reasonable to conclude that the constitution’s provisions were understood as requiring that they be interpreted using proportionality analysis. Thus, one cannot simply look at a constitution, see that it is employing proportionality analysis, and conclude that it is nonoriginalist. It might be following a type of originalism.
2. Second, there is nothing so problematic with concluding that much of the world is following illegitimate judicial methods. It is entirely possible that many of these constitutions were written with one set of interpretive rules deemed to be applicable and that judges chose to depart from them without warrant. Obviously, there are many countries throughout the world where all kinds of corruption and illegality prevail. But even if one restricts oneself to Western European countries, such countries (especially the EU) are often criticized as having a democracy deficit. In these countries, it would not be surprising that a court would usurp power and that the people would not protest much. But that would not make the usurpation legitimate.