If you’re not a lawyer but you are a conservative, you’re likely familiar with Antonin Scalia and Clarence Thomas.

The late Justice Scalia of the United States Supreme Court was the conservative champion for originalism, the view that the Constitution should be interpreted by its original meaning and does not change over time unless amended by the People. Scalia’s principles and way with words left a permanent impression on Americans.

Justice Thomas is even more zealous for originalism than Scalia was, and today, he is the U.S. Supreme Court’s greatest defender of the U.S. Constitution.

Last Friday, the Alabama Supreme Court issued a ruling showing that originalism is not only alive and well at the U.S. Supreme Court, but it’s also gaining ground in Alabama.

In Hanes v. Merrill, a group of Alabama citizens brought a lawsuit arguing that Alabama’s voting system was unsecure. The trial court dismissed the lawsuit for lack of standing (more on that in a second), reasoning that the plaintiffs could not show they were injured. The plaintiffs appealed to the Alabama Supreme Court, and my firm, the Alabama Center for Law and Liberty (ACLL), filed an amicus brief arguing that Alabama courts have been stricter on standing than the Alabama Constitution requires.

For those unfamiliar with legalese, “standing” is the doctrine that only certain people get to bring a lawsuit. Let’s say your best friend gets hit by a drunk driver. Your friend should obviously be able to sue the driver. But could you? That would be weird, right? If the courts let anybody sue, we’d have a far more litigious society than we already do.

In 1992, the U.S. Supreme Court issued a landmark decision in Lujan v. Defenders of Wildlife, arguing that to have standing, you must have suffered an actual injury. That sounds reasonable, but what happens in cases where your legal rights are violated, but you don’t sustain a physical or monetary injury?

Justice Thomas has made a solid case that in the past, injury was presumed if your legal rights were violated. Eleventh U.S. Circuit Court of Appeals Judge Kevin Newsom, an excellent judge, agrees. Thus, Lujan may be ahistorical.

There’s another problem with Lujan in Alabama, though, for the state constitution’s judicial article is structured differently than that of the federal constitution. The text on which Lujan was based does not even appear in the Alabama Constitution. When the Alabama Supreme Court adopted Lujan as its precedent, it didn’t have the same textual basis that Lujan did.

Fortunately, three justices on the Alabama Supreme Court saw ACLL’s point and thought it was worthy of serious consideration. The court declined to go that far in this case because the parties did not ask the court to do so, but Justices Cook and Mitchell noted that the court should take another look at Lujan in the appropriate case.

Chief Justice Parker went further. He not only shared Justices Cook and Mitchell’s concerns, but he appeared convinced enough to be willing to abandon Lujan right there. He wrote an incredibly thorough concurrence arguing that the injury-in-fact requirement for private causes of actions should be abandoned.

So where am I going with all this?

First, ACLL is incredibly honored that three Alabama Supreme Court justices noted our arguments and hailed them worthy of serious consideration. The fact that the other six did not should not be taken as a sign they would not do so in a future case. I think all nine justices believe it is the judiciary’s job to say what the law is, not what the law should be, and therefore they would be open to an originalist challenge to standing precedent if properly presented.

Which leads to my next point. ACLL began this advocacy because Justice Mitchell and Chief Justice Parker recently called on the Alabama bar to brief the court on the state constitution. Justice Cook now indicates that he also appreciates these kind of arguments.

My advice to the Alabama bar is this: if the Alabama Constitution says something that could help your case, argue it. The justices are calling for that, and are showing they appreciate it when litigants do.

We should be grateful that originalism is working not only in Washington, D.C. but right here in Montgomery as well. Originalism preserves the great principle of liberty that only the People or their representatives are authorized to change the law. If the Alabama Supreme Court agrees, then we will never doubt that the rule of law is alive and well and that we the people are the guardians of our own destinies.

Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.

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