With their steadfast reverence for the U.S. Constitution and the wisdom of the Founding Fathers, Americans might find the idea of originalism, as it applies to constitutional law, irresistibly appealing.
That crinkly piece of parchment has made the U.S. the greatest nation in the world, right? Those old guys sure knew what they were doing when they wrote it, right?
Who can argue that, right? Turns out, as with everything today, in law, politics, sports and America as a whole, lots of people argue that. All the time. With vigor.
Interpreting and applying the Constitution to 21st century America is a sport unto its own. There are unapologetic originalists on one side, and there are those who don’t think much of originalists and the whole concept of originalism on the other. Some are especially skeptical when it comes to judges who claim to be originalists.
“Originalism cannot solve cases. It just can’t,” claims Eric J. Segall, the Ashe Family Chair Professor of Law at Georgia State University and the author of “Originalism as Faith,” a history of the originalism debates. “The more honest ones say, ‘That’s true. But judges should pay more attention to it than they do.’ I don’t agree with it, but that’s a fair disagreement. But to the public, to the pundits, to the politicians, it’s like ‘Oh, we can just plug in what [the framers of the Constitution] thought, and we’ll have the answer,’ and that’s, of course, absurd on its face.
“And, by the way: There’s never been an originalist judge.”
What, Really, Is Originalism?
A long list of Supreme Court justices, and Supreme Court justice wannabes, have claimed to be originalist in their views. That list includes Hugo Black, Clarence Thomas, Antonin Scalia, Neil Gorsuch, Brett Kavanaugh and Judge Amy Coney Barrett, who proudly carried the banner as she faced her confirmation hearing in October 2020.
Originalists, simply, believe that the Constitution should be followed as written. No between-the-lines guessing about what the framers may have intended. No changing the meaning of it as time goes by.
Barrett explained it like this as she spoke to the Senate Judiciary Committee Oct. 13, 2020:
[Originalism] means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.
The term is relatively new, coined by constitutional scholar Paul Brest in the early 1980s. “By ‘originalism,'” he wrote, “I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.”
The late conservative Supreme Court Justice Antonin Scalia, whose philosophy Barrett says she follows, was a renowned originalist who rejected the idea of allowing for rights — like LGBTQ rights and abortion rights — that weren’t specifically granted in the Constitution. That made his job easier, he said.
“All these questions pose enormous difficulty for non-originalists, who must agonize over what the modern Constitution ought to mean with regard to each of these subjects,” Scalia said in a lecture at the University of Virginia in 2010, “and then agonize over the very same questions five or 10 years later, because times change.”
The Flaws in Originalism
The Constitution states that a person has to be at least 35 years old to become president. It establishes a Congress made up of a Senate and a House of Representatives. Two senators per state, and a six-year term per senator. Questions on those? They’re right there, in black and white.
But what about concepts? What about freedom of speech, due process, cruel and unusual punishment, and tons of other ideas? What exactly are they? What do they mean? What in the heck were the Founding Fathers thinking?
And maybe more importantly, especially for those who question originalist views: How in the world could James Madison or Thomas Jefferson or any of the Fathers and framers, possibly envision a world in which unfettered Twitter speech is a thing? How on earth could the framers — some slaveholders, all operating in a time in which women, Blacks and Native Americans didn’t even have the right to vote — foresee something like the question of LGBTQ rights?
How could they guess, when the Second Amendment was ratified in 1791 guaranteeing “the right of the people to keep and bear Arms,” that assault rifles in the hands of teenagers would become a question?
Those are the type of questions that those who oppose originalism — people who, generally, believe in what is called a “living constitution,” one that evolves with the times — ask.
The truth is, even originalists agree that judges, faced with solving modern-day problems with centuries-old, sometimes nebulous language, can’t rely strictly on the Founding Fathers and the Constitution as written. They have to dig for other historical references. They have to pick and choose what becomes important and what is not.
And that’s where, Segall argues, the whole originalist house of cards is swept off the table.
“That concession, which provides judges enormous discretion to decide which changed facts matter and which do not,” he writes in an October 2020 post on the “Dorf on Law” blog, “dooms originalism as a serious method of constitutional interpretation both in theory and in practice.”
The Dodge of Originalism
Why, then, even stake a claim to originalism when original intent and meaning often are not obvious and current circumstances may make them moot?
For one, declaring that you’re all for what the Founding Fathers wrote and meant is extremely palatable to the public and media. Again, who doesn’t revere the Constitution and the Founding Fathers?
For two, claiming to be an originalist is a way to hide who you are and what you’re truly thinking about a topic that may well be a political and social quagmire. There may be other reasons, too.
“People like Kavanaugh and Barrett,” Segall says bluntly, “are using their originalism as ways to advance their careers.
“Ninety-five percent of the time [originalists] are using it as a label to hide their libertarian-slash-conservative-slash-Republican loyalties,” he adds. “It’s just a label. It is not a way to decide cases, despite what they say. It is a label to identify who they are.”
It should be noted that originalists, almost by definition, generally are conservatives. “The whole idea of originalism is looking backward,” Segall says. “If you’re looking backward, how can you be progressive?”
Still, there are people who claim to be progressive originalists. And, it should be noted, too: Originalism comes in many forms. It’s espoused by countless judges and lawyers, and many in the academic realm.
“When you start talking about originalism, it just becomes irrational,” Segall says. “And it’s obviously irrational; we’re not going to decide today’s issues by the views of slaveholders, segregationists and people who had no idea about our technology today.”
At least one of the Founding Fathers might agree with that notion. In 1816, Thomas Jefferson wrote a letter to Samuel Kercheval, a portion of which is emblazoned on the Southeast Portico of the Jefferson Memorial in Washington D.C. The engraving reads:
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
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