Originalism and the Supreme Court

President Trump’s nominee for the Supreme Court is Judge Neil Goresuch, who is said to be an Originalist like Justice Scalia, whom he will replace if confirmed.

Originalism is a theory of judicial interpretation that requires the judge to determine what the Constitution meant at the time of its enactment. An Originalist does not believe that an interpretive gloss may be added to this meaning to make the outcome better fit the times. In the case of current statutory interpretation, an Originalist focuses solely on the plain meaning of the words used in a statute without resorting to what judges or others may think Congress intended the statute to mean.

Originalism is a respectable principle by which to resolve controversy about textual meaning. But it can lead to absurd results. Suppose some crank decided to sue the United States Air Force on the ground that its very existence is unconstitutional. Absurd, right? Not to an Originalist.

Article I, Sec. 8 of the Constitution enumerates the powers granted to Congress. Among them are the power “to raise and support Armies” [12], to “provide and maintain a Navy” [13], and to make rules for governing “the land and naval Forces” [14]. There is not a word about air forces in the Constitution for obvious reasons.

Who could doubt that a judge presented with that suit should dismiss it? Even if the language of the Constitution did not specifically bestow on Congress the power to create and regulate an Air Force, the Founding Fathers would have done so had they been able to conceive of the need for one. And the existing language of the Constitution can be interpreted to give Congress the power. Ah, but this is precisely what Originalists believe should not be done.

In the 1972 case of Laird v. Tatum, Justice Douglas elided the issue by saying that “the Army, Navy, and Air Force are comprehended in the constitutional term ‘armies.’” Really? How can that be? Well, of course, it can’t be if we may only interpret and apply the Constitution as originally meant. But it is more sensible now to broaden the term “armies” beyond what it originally meant. This is an example of holistic interpretation, and why it is the favored approach of most jurists.

Judicial conservatives – Originalists – point out that the Constitution separates powers among the three branches of government and Congress is given the sole power to make laws. If the judicial branch interprets and applies a statute so as to give it a meaning not specified by Congress, aren’t judges making law? And if those judges are liberals, won’t conservatives be unhappy with the substance of the judicially made law? Indeed, and the prime example of this is a woman’s right to an abortion recognized in Roe v. Wade but nowhere mentioned in the Constitution.

Here is the essence of the whole controversy about who sits on the Supreme Court. It is the substance of judicial outcomes that matters, not the interpretive theory they are dressed up in. These outcomes are sometimes politically driven. Judge Goresuch has said that Originalism often leads judges to results they don’t like. Perhaps, but Originalists also sometimes engage in holistic interpretation to reach the result they want, although they tend to construct tortured explanations to deny that they have departed from Originalism. Justice Scalia was famous for this.

It is too early to know what political outcomes Judge Goresuch will favor, but he is unlikely to be worse than Justice Scalia on this point. Judge Goresuch is a careful jurist who does not engage in the bullying and intemperate attacks on those who disagree with him as did Justice Scalia. For that reason alone, he will be an improvement if confirmed.

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