Our Supreme Court in the Grip of Originalism

Legal doctrines don’t usually make the news, and rarely have a direct effect on anyone beyond the participants in a particular case. But our Supreme Court is in the grip of a doctrine that is having a profound, pernicious effect on the whole country and there is no end in sight. That doctrine is originalism. Originalism was the doctrine relied upon by the Supreme Court to find a Second Amendment right for individuals to own and carry guns and for overturning Roe v. Wade.  What I hope to show is that originalism is not an effective or even honest means of interpreting the Constitution. Rather, it is a tool employed to reach results satisfactory to the political right.

Most originalists assert that the only proper way to interpret the Constitution is by determining the original intent of the Framers concerning the language at issue. One scholar has called this a severe case of ancestor worship. Because of fatal defects in this approach, other originalists now claim to base Constitutional interpretation on the “original public understanding” of the words and phrases at issue. The two approaches differ slightly but both call on judges (or their 25-year-old law clerks) to be historians, which they are most certainly not qualified to be.

One unique aspect of the American legal system is that our Constitution is treated by courts as a legal document, not a political one. It is not interpreted in special constitutional courts, but rather in federal and state courts much the same way as any other law. When presented with a question requiring the interpretation of either a statute or the Constitution, judges normally consider the original meaning of the provision. But when interpreting the Constitution, they do so side by side with other factors such as how courts have previously interpreted the provision, the present meaning of the words, how the provision can be applied to situations unimaginable in 1787, and more.

But not originalist judges. They disregard all other interpretive factors entirely. They stop looking when they divine the original meaning. They do so ostensibly to prevent unelected judges from making up law as they go along, which they claim is legislating — a task reserved by the Constitution to Congress. In fact, however, originalist judges themselves make up law as they go along by their choice of one history over another, one Framer’s intent over another.

The Fool’s Errand of Originalism

The problem with tethering constitutional interpretation to original meaning is obvious. Some provisions of the Constitution are clear and need no interpretation. The provision that the President must be at least 35 years old is one of these. Other provisions are notoriously lacking in clear meaning — by design. For example, the provision that says Congress may make all laws “necessary and proper” for carrying out its enumerated powers.  It is these ambiguous provisions that require interpretation.  Judges start with the text but quickly realize that text consists of words that may have had different meaning in 1787. Just one example is the impeachment provision in Art. I, Sec. 3 disqualifying a convicted official from any “Office of honor, Trust or Profit under the United States.” What is an office of honor and how is it different than an office of trust?

Originalism not only depends on determining the 1787 meaning of words but, when that meaning is unclear, on determining the intent behind their use. How can we know this intent? Often this comes from the contemporaneous statements and writings of the delegates to the Constitutional Convention. What could possibly go wrong with that?

We all know that two observers of the same event will describe it differently. Which of the two understandings is correct? Only James Madison’s notes comprise a relatively thorough and consistent account of the Convention. But none of the Framers – especially Madison – was unbiased. Madison did not attempt to record speeches verbatim, and his notes tend to summarize fully arguments with which he agreed and to give short shrift to those he opposed. He could not speak and take notes at the same time so the “notes” from his own speeches are suspect. Furthermore, Madison repeatedly revised his notes during and after the Convention. This reliability problem is even worse when we use later expressions from the delegates. Can John Adams’ recollections of the events at the Constitutional Convention written thirty years later be relied upon for anything?

Then there is the problem of whose intent is conclusive. Altogether there were 55 delegates to the 1787 Convention, but only 39 signed the document. While each provision was adopted by a majority vote of those present, these majorities shifted by issue. Some delegates who voted on early provisions went home before the whole document was voted on. Some delegates were fiercely opposed to the adoption of certain provisions and would have refused to sign the whole document if to do so meant consent. A compromise was devised so that a delegate’s signature meant only that he had witnessed the unanimous action of the assembled states in adopting the draft.

Under these circumstances, how can a single original meaning for any of the document’s ambiguous provisions be distilled? The truth is that there were as many meanings, aspirations, and intentions as there were delegates. Picking one and declaring it to be the original meaning to the exclusion of competing ones is a results-oriented process that undermines public confidence in the Court.

How Originalism Could Change American Society

There is no reason to speculate about how life in American society could retreat if an originalist Supreme Court continues to have its way. A woman’s right to avoid compelled pregnancy, involuntary childbirth and forced parenthood – a right recognized in Roe v. Wade fifty years ago – was declared to be without support in the Constitution in the recent case of Dobbs v. Jackson Women’s Health Organization. There is no reason for an originalist Supreme Court to stop there. Indeed, Justice Thomas in his concurring opinion in Dobbs identified several established rights that are vulnerable, including the right to contraception and the right to same-sex marriage.

So where will this all go? I am not predicting any of the following. What I am doing is showing that honestly and consistently applied originalism can lead to absurd results, and that it is a threat to established legal and societal norms.

  1. Racial segregation of public schools. Segregation has been outlawed since Brown v. Board of Education in 1954. Under an originalist approach school segregation would be constitutional. Segregation was found unconstitutional in Brown under the Equal Protection Clause of the Fourteenth Amendment. But that was not the Amendment’s original meaning. When the Fourteenth Amendment was adopted after the Civil War it was not understood to forbid segregation in public schools. At that time even northern states segregated their schools. The very same Congress that proposed the Fourteenth Amendment passed a law segregating the schools in the District of Columbia. An intellectually honest and consistent originalist Supreme Court would have difficulty reaching the same result as the Brown Court did 68 years ago.
  2. Discrimination against women. The only thing in the Constitution specifically protecting women’s rights is the Nineteenth Amendment establishing a woman’s right to vote. The Equal Rights Amendment, which would have extended all rights to women on an equal basis with men, was not ratified. Since the 1970’s the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment substantially limits legislative power to discriminate against women. But virtually no one in 1868 when that Amendment was adopted understood it to apply to women. At that time discrimination against women was widespread. Indeed, in 1872 the Supreme Court itself upheld an Illinois decision to deny a woman a law license on the basis of her sex. There is no way that an originalist today could argue that the original meaning of the Constitution prohibits the federal government or the states from discriminating against women.
  3. Application of the Bill of Rights to the States. The Bill of Rights was added to the Constitution to address concerns that individual rights and liberties were not clearly protected in the original document. But the Bill of Rights as written and originally understood restrained only the federal government. States were not prohibited from abridging religious freedom, the freedom of speech, conducting unreasonable searches and seizures, and so on. Since 1868, the 14th Amendment has been the vehicle for applying the Bill of Rights to the states. It prohibits states from denying “liberty” without “due process of law” and infringing the “privileges and immunities of citizens.” But the Amendment does not specifically apply the Bill of Rights to the states. To get there required interpretation by the Supreme Court in a series of cases in the 1960s that originalists today would reject. They argue that if Congress intended the full Bill of Rights to apply to the states it would have been easy to say so.

Despite all the rhetorical bluster from originalist Supreme Court Justices and conservative legal scholars, the worst of the foregoing parade of horrors is unlikely to happen. Why will the Supreme Court not undertake a wholesale originalist revision of our laws? The answer is that originalism is a political tool to be used to achieve political goals. It is merely dressed up as a serious doctrine of Constitutional interpretation. Our originalist Supreme Court Justices know that an honest and consistent application of originalism would not be politically possible. Instead, they have begun a process of altering only those rights fervently desired by, or specially despised by, the conservative fringe in America. And they do this simply because they can.

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