I don’t mean this in a political manner. Whether your views are liberal or conservative have nothing to do with it.
I mean that any logical, reasonable assessment of originalism as a way to run a country’s legal system must conclude that originalism is either absurd, a convenient political pretext for imposing one’s views, or both.
A disclaimer (and then a disclaimer to that disclaimer)
The disclaimer is: I’m not a legal expert.
But the disclaimer to that disclaimer is: I am a professional sociologist.
That means I know a thing or two about the following:
- Social change. As I note in my Amazon bestselling book, there’s probably been more social change in the past 200 years than the entirety of human history up to that point. In the words of sociologist Ulrich Beck, we increasingly feel like we’re living in a “runaway world:” a world in which the rapid pace of change is disorienting, bewildering, and scary.
- Social meaning-making. As a society, we collectively decide what words and actions mean. And these meanings change constantly over time. Many of our social conflicts can be traced to this messy meaning-making process. There’s a whole theoretical tradition in sociology based around this insight that’s been getting empirical results for over 100 years.
- The social function of government. Max Weber, one of the founders of sociology, famously described a government as the entity that has “a monopoly on the use of legitimate violence” within its territory. It’s our Constitution and our laws, of course, that prescribe exactly when, how, and why the government can use that monopoly–and it’s the judicial system that rules on those matters where the government’s capabilities are most complicated, contested, and unclear.
What is legal originalism?
It’s the theory that, when it comes to interpreting the Constitution or the law, we should seek to apply either the meanings the original authors would have had or the meanings people living at that time would have applied to the text.
This means, for instance, that when judges are trying to interpret something that was written in the Constitution, “the modern interpreter should read the language in accord with the meaning it would have had in the late 1780s,” according to prominent originalist Michael B. Rappaport.
If it sounds dumb that we, in 2020, reading this article on our phones, ought to decide the most complicated, contested, important issues of our day by, as one article aptly described it, “divining the inner monologue of [eighteenth-century] wig-wearing slaveholders” … that’s because it totally is.
Arguments against originalism are extremely convincing
- Who the hell knows what people meant 200 years ago? Whose opinions matter most? How do we figure this out? By reading the few documents that survive to us, no matter how unrepresentative? By cherry-picking their written words, even when these are sometimes contradictory? How can this possibly be a clear, consistent guideline to interpreting the law?
- Do we even know that the Founders themselves wanted the Constitution to always and forever be interpreted according to 1780s standards? Isn’t it implicit in the very act of Constitution-writing that it should be a document that endures and evolves over hundreds of years? After all, certain phrases in the Constitution are vague enough that it seems clear the standards of the current time, and not the 1780s, ought to be applied (for example, “cruel and unusual punishment”).
- The Ninth Amendment, in full, reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Doesn’t that mean that even if the Constitution doesn’t explicitly list a specific right, if American citizens ought to have that right according to today’s reading of the Constitution, judges shouldn’t use that lack of textual evidence to deny American citizens that right?
- When modern issues are up for debate that people from the 1780s couldn’t have possibly anticipated, why should their obsolete or unimaginative views dictate what we must do today? Why shouldn’t we attempt to use our best judgment in the present (you know, like “judges” are supposed to do)?
- Are we really supposed to re-ratify the Constitution every time the meaning changes from what it meant in the 1780s? How could we possibly keep up? Wouldn’t it be easier to apply the meanings of today, updating obsolete language when necessary, than to constantly update the language of the Constitution in order to codify the meanings of today?
Meanwhile, arguments in favor of originalism are extremely dumb
Here are the most prominent ones, followed by their gobsmackingly easy rebuttals:
1. The Founders put in the amendment process to change the Constitution; therefore, the Constitution is supposed to be fixed, and if we want to change it, the amendment process is the way to do it.
Yes, and the Founders also made it extremely difficult to amend the Constitution: requiring supermajorities of both houses of Congress and state legislatures. Even by an originalist interpretation, we can confidently say the Founders intended the amendment process to be used sporadically in cases of overwhelming consensus–not three times a week as new meanings become attached to words.
2. Without originalism, the legal doctrine of stare decisis (using judicial precedents in past cases to guide interpretations and rulings in current cases) would be upended, and the result would be legal chaos.
Uh, no. First of all, stare decisis isn’t binding. Interpretations of previous cases can be and are updated, like when 1954’s Brown vs. the Board of Education overturned 1898’s ruling in Plessy vs. Ferguson that racial segregation was Constitutional.
Second of all, is it really the non-originalists who want to overturn previous rulings? If Amy Comey Barrett joins her originalist majority on the Supreme Court, we’re likely to see the Affordable Care Act, Roe vs. Wade, and several other liberal achievements overturned on originalist grounds. There are even originalists who believe the Fourteenth Amendment–you know, that little amendment that says all persons born or naturalized in the United States are entitled to the same rights, privileges, and protections–shouldn’t apply to women, since it was “originally” only intended to apply to former slaves.
3. Without originalism, judges can just arbitrarily impose their views upon the law by claiming they’re taking up the modern meaning of the terms.
Well, yes, that is a concern. But is it really more of a concern than 21st century judges arbitrarily imposing their views upon the law by claiming they’re taking up the 18th century meaning of the terms?
There’s this myth that we can somehow accurately discern what the intention or meaning of the Constitution is through the few scribblings on contemporary pieces of parchment that have survived to us. We’re actually more able to discern what terms mean today–there are sophisticated survey techniques that can do that. So if a judge is in fact imposing their own views and conveniently disguising them in the “meanings” of a certain time period, we’re much more able to marshal conclusive evidence to reveal the lie if the standard to be met is today’s meanings rather than 1787’s meanings.
To put it in scientific terms, there’s no way to falsify claims of the Founder’s intentions. It’s all about reading into scattered fragments that aren’t at all representative of the opinions of the time. We do, however, have the ability to falsify a judge’s claim about what certain terms mean today–and then, hopefully, the ability to call bullshit whenever a judge attempts to claim otherwise.
If there’s a decent argument for originalism, I haven’t heard it
There’s a reason why originalism only became a “serious” school of legal thought in the 1980s–because for the 200 years preceding, it was transparently dumb, and nobody took it seriously that we were supposed to be mind-reading what wealthy white men thought in Philadelphia during the summer of 1787.
How, then, did this become a “serious” school of legal thought?
There’s a generous explanation … and a not-so-generous one
The generous explanation is that most people simply underestimate the pace of social change and the fluid, rapidly changing, collaborative nature of meaning-making.
I had to go to grad school for nearly 10 years to fully understand this, so I don’t begrudge folks if they mistakenly believe things that were uttered hundreds of years ago can be applied consistently and with the same efficacy to the present day. But that’s simply not true.
Our institutions were largely founded in a time before industrialization, before globalization, before digital technologies, before our current understanding of human rights and liberties. In many ways, they’re simply not textually adequate to deal with the challenges of today. Our legal system needs to account for that fact in its interpretations of the law.
But there’s a lot of evidence to suggest the not-so-generous explanation is the more accurate one
Because, in 1982, the Federalist Society was founded.
Its mission entails “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning,” and it “has evolved into the de facto gatekeeper for right-of-center lawyers aspiring to government jobs and federal judgeships under Republican presidents.”
In other words, in the 1980s, a group of conservative legal scholars embraced originalism as a way to legally advance their political causes (“checking federal power” and “protecting individual liberty,” as they defined it). And over the past 35+ years, the organization they founded to do this has become one of the most influential organizations in the country– because if you’re a judge, and you want to be nominated by a Republican, you need the Federalist Society seal of approval.
As a result, throughout the Reagan, H.W. Bush, W. Bush, and Trump administrations, hundreds of Federalist Society members have been nominated to important judgeships. A majority of the Supreme Court now consists of current or former Federalist Society members. (If Amy Coney Barrett is confirmed, 6 of 9 justices will be affiliated with the Federalist Society.)
Why has so much money and effort been invested into promoting originalist interpretations of the law?
Because conservatives know they can’t win if they interpret the law according to reasonable standards of today.
And so, in order to invalidate liberal policies and precedents they don’t like and preserve obsolete interpretations still championed by conservatives, they cooked up a legal doctrine in which they get to collect and distort flimsy evidence from hundreds of years ago to twist judicial rulings into whatever conveniently conservative outcome they desire–regardless of how we, the currently living American people, would actually interpret the law.
If originalism really were the consistent, fair practice originalists claim it to be, given the influx of originalist judges that have been appointed since the founding of the Federalist Society, you’d think the legitimacy of the courts would have increased over the past 3 decades, right? Yet a 2019 Quinnipac University study found that 55 percent of Americans believe the originalist-majority Supreme Court is “motivated mainly by politics,” compared to only 38 percent who believe it’s “motivated mainly by the law.”
Why do Americans think the courts have been corrupted by the political process? Because they have. Originalism is little more than legal smoke and mirrors to let one political party get its way.
It’s good to have a robust, durable, consistently interpreted legal system. But it’s absurd both to (1) insist that we should privilege eighteenth-century understandings over our best judgments here in the twenty-first century, and (2) imagine that we, here in the twenty-first century, are even in a position to accurately discern what was meant in eighteenth-century legal documents.
We don’t let people ten thousand miles away overrule our own best judgments right here and now. Why do we let people two hundred and forty years ago do it? Or, more precisely, why do we let people in black robes today try to mind-read through the scattered remnants of history how we should interpret the law, when it’s such an unfalsifiable process so susceptible to corruption?
Americans across the political spectrum should reject any dubious legal interpretations that allow a minority to artificially inject their views into the law. Just interpret the law the way a reasonable person would interpret it, today! We’re far better equipped to discern how people interpret the law today and consistently apply that standard. But if we’re going to try to reach across history to decide what the law means, we might as well use animal entrails.