The Myth of Originalism
Photo by Ian Hutchinson on Unsplash
Senate Majority Leader Mitch McConnell has scheduled next Monday for the Senate vote on President Trump’s nomination of Judge Amy Coney Barrett to the US Supreme Court. At this point, it is all but certain that the Senate will vote along party lines to confirm her nomination, and she will be on the Court for the oral arguments for the second session of the fall term starting November 2.
As widely reported in the media, Judge Barrett considers herself an “originalist” in her approach to interpreting the US Constitution. Asked to explain this approach in her recent Senate hearings, she said:
So in English, that 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.
While originalism is often discussed in rather esoteric terms, it in fact derives from a basic principle of contractual interpretation. A contract represents an agreement between two or more parties. When a court needs to interpret a provision of a contract where some ambiguity or confusion exists, it usually seeks to determine and give effect to what the parties intended to occur. The point is to preserve, to the extent possible, the original expectations of the parties.
In many ways, constitutions are just contracts, writ large. Really large. We can think of a constitution as an agreement by all of the people of a country about how they will govern themselves. Thus, when a court must interpret a provision of a constitution, it makes perfect sense to ask: what did the people who agreed to this constitution mean? How can we give effect to their original intent?
Of course, the application of such a technique may be fairly straightforward when it relates to just a few parties who entered into a contract not too long ago. The parties themselves are likely before the court, and they can testify and enter into the record copies of their own papers. We can ask them what they intended.
It is a very different thing to identify what a people meant when they adopted a constitution. Who do we look to, to find “original intent”? And where do we look? In our case, do we look to the writings of James Madison, the original author of much of the Constitution and the Bill of Rights? Or to the Federalist Papers, a series of articles written by Madison, John Jay and Alexander Hamilton, published expressly to encourage the Constitution’s adoption? What about the writings of other members of the Constitutional Convention? Or should we consider the records of the various state conventions that approved the Constitution? In the case of the Bill of Rights, those amendments were adopted by Congress and approved by state legislatures after the Constitution was itself ratified; so should the legislative record of Congress and the state deliberations be relevant? And what do we do when the historical record is unclear or inconsistent, or when these various sources disagree?
An originalist interpretation may also fail to recognize that constitutions are different by nature than normal contracts. A contract between two parties is usually limited in scope, in terms of both subject matter and time. Contracts are regularly amended, terminated, or expire, and new contracts to replace the old are entered into. Constitutions, quite differently, are meant to govern the relationships of an entire nation for an indeterminate period of time. In McCulloch v. Maryland, the Supreme Court was faced with the question whether Congress had the power to charter a national bank, something not expressly provided for in the Constitution. In holding that the powers of the government should be read broadly, Chief Justice Marshall wrote: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”
Originalism has, nevertheless, taken center stage in much of the academic literature and in judicial opinions considering the meaning of both the Constitution and federal laws. Justice Antonin Scalia was long the leading originalist on the Supreme Court and in the American judiciary. On the current Court, Justices Thomas, Alito, Gorsuch and Kavanaugh, as well as Chief Justice Roberts, have all adopted originalism as their primary method of constitutional interpretation, at least to some degree.
Those five justices were all appointed, not coincidentally, by Republican presidents. Now, there are in fact liberal originalists. But as an overarching theory, originalism tends to appeal most to those who consider themselves conservative. It presents an approach that, in its essence, is reactionary, in the sense that it opposes (reacts to) change. Originalism seeks to preserve the law as it is (or, in many recent cases, to restore the law to the state in which the judge believes it once was). With respect to the Constitution, originalism looks to the understanding of the law in 1789 (when the Constitution was adopted), in 1791 (when the Bill of Rights was ratified), or in 1868 (when the Fourteenth Amendment was ratified). It enshrines definitions, principles, and expectations as they were at the end of the eighteenth century or the middle of the nineteenth century, without reflecting changes in morals and society over the intervening years.
Supporters of originalism say this is exactly the point. Judges who attempt to give new meanings to words or concepts are not following the law, they are making new law based on their own biases and opinions. This should be beyond the scope of the judiciary. Rather, it is the role of the legislative branch, acting in response to the desires of the majority, to adopt new laws. If the Constitution no longer reflects the will of the people, then it should be amended by the people, not by unelected judges with lifetime appointments. Originalism, we are told, enforces just such a limited scope on the power of judges.
But, here’s the nub. While originalism can certainly be a tool of constitutional interpretation (and one now widely applied to one extent or another by even the most “liberal” judges), the idea that it provides a definitive approach that eliminates judicial discretion and circumscribes judicial power is simply a myth.
Perhaps the biggest obstacle to a straightforward originalist approach is the complexity of history. As I noted above, identifying the single intent of a constitutional provision may be impossible, given the multiple drafters and ratification process, and disagreements among the founders themselves. It gets even more complicated when the “widely understood” meaning of some term or another is sought. One can look to newspapers, journals, books, plays, or any number of other sources of media, all of which may differ or contradict in any number of ways. If you want to find historical facts to support a given position, you will almost certainly find them if you look hard enough. Seldom will a conclusion be drawn from history that is not subject to some degree of uncertainty or debate.
Volumes have been written by historians about the founding generation and the drafters of the Reconstruction Amendments, and interpretations and conclusions have changed over time based on better scholarship or varying perspectives. Historians, however, have the luxury of lengthy research and the ability to reinterpret or change positions over time. Judges must make decisions that are legally binding once issued, even where the evidence may not be definitive.
Consider, for example, District of Columbia v. Heller, where the Supreme Court held in 2008 that the Second Amendment protects an individual’s right to possess firearms. In Justice Scalia’s opinion for the majority in Heller, he analyzed the history of gun ownership during Revolutionary times, and found a historical basis for such an individual right. Justices Breyer and Stevens wrote dissents in which they also reviewed the applicable history, and came to the opposite conclusion. Each side is joined by any number of scholars in the field supporting their position. Who was right? Historians can continue to disagree. But once the Court ruled, Justice Scalia’s interpretation of history – whether right or wrong – became the constitutional law of the United States.
As can be seen from the Heller decision, originalism is not necessary a “conservative” doctrine in the sense that it preserves the law the way it has been. The Supreme Court had never found an individual right to possess firearms before this decision in 2008, and in fact prior precedents had suggested, to the contrary, that the right to bear arms was inextricably linked to membership in the militia. Heller (along with McDonald v. City of Chicago, which held that the Second Amendment applies to states) rendered unconstitutional a large body of gun legislation throughout the US that had been common for generations. Justices Thomas and Alito have consistently written dissents that, in reliance on their understanding of the original intent of the founders, would overturn precedents and principles that have been widely accepted for decades, if not for centuries.
The complexity of applying originalism is not limited to questions of historical truth. Even among originalists, there can be substantial disagreements over the interpretation of constitutional provisions. This is the case in the scholarly literature, and among the justices on the current Supreme Court.
We saw this most recently in Bostock v. Clayton County, a case decided earlier this year. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, or national origin. The question raised in this case was whether this prohibition includes discrimination based on an individual’s sexual orientation or gender identity. Several of the Court’s “originalist” justices looked to the time of the adoption of the Civil Rights Act (1964), and noted that no one then would have thought it applied to sexual orientation or gender identity. In their view, then, the actual text of the law was essentially irrelevant; the question was whether the authors of the law would have anticipated the result. Justice Gorsuch, on the other hand – who is perhaps the leading textualist on the Court now – looked to the words of the statute, and applied the meaning of those words at the time of adoption to the issue at hand. Doing so led to the inevitable conclusion that Title VII, which protects against discrimination on the basis of sex, must include sexual orientation and gender identity – by definition, the discrimination would not have occurred if the individual in question were of a different sex. Under this analysis, the text, applying the original meaning of the words, controls, even if doing so mandates a result would never have occurred to the law’s authors.
The analysis primarily followed by Justice Alito in his Bostock dissent – looking to what a law’s authors would have expected to occur after adoption of the law – is more often used by “conservative” judges because it enshrines a historic moral and ethical view of the world. Let’s call this “intent” originalism. Justice Gorsuch’s approach – which gives words their historical meaning but otherwise follows the text to a conclusion that may or may not reflect the authors’ anticipated results – we’ll call “textual” originalism.
Although one can draw this distinction, it is not the case that a given justice will only follow one method or the other. It is not uncommon to see justices who typically favor the intent originalism model ignore it when the textual approach more easily leads to the result they otherwise prefer.
Justice Scalia famously said that his Constitution was a “dead” Constitution. So, for example, since punishment by locking people into stocks was accepted in 1791, such a punishment could not be considered “cruel and unusual” in violation of the Eighth Amendment. Since laws against homosexuality and miscegenation were widely accepted in the middle of the nineteenth century, such laws could not be deemed to violate rights of due process or equal protection under the Fourteenth Amendment. Similarly, since marriage has long been accepted by the states as solely between one man and one woman, there could be no violation of due process or equal protection by a state or federal law that refuses to condone same-sex marriage. Even where a strict reading of the text might suggest otherwise, the guiding principle in intent originalism should be what the authors of the Constitution or the Reconstruction Amendments could have envisioned as the results of their adoption.
Yet, consistency (well, a foolish consistency), as Emerson said, is the hobgoblin of little minds. Where the limited imagination of the founding generation would lead to a result narrower than they would like, Justice Scalia and his successors have been more than happy to ignore original intent and become textual originalists. In Citizens United v. Federal Election Commission, the Supreme Court overturned a law prohibiting the use of general treasury funds by a corporation to make certain political contributions or purchase certain political advertisements. Justice Kennedy, writing for a majority composed of the conservative justices, held that the law ran afoul of the First Amendment’s guaranty of free speech, finding that it applies to corporations just as it does to individuals, and that it applies to the use of money just as it would to speaking in a public park.
Yet, at the time of the founding, it is safe to say that no one would have – or, frankly, could have – anticipated this result. There were few corporations in 1789, and those that existed were purely creatures of government, authorized to perform functions for a largely public purpose, and subject to extensive regulations in their corporate charters. It was universally understood during the first hundred years after the Constitution was adopted that corporations had no civil rights. Nor was there a concept that spending money equals free speech.
Yet the Court’s conservative wing had no problem becoming textual originalists to give First Amendment rights to corporations, whatever may have been the original intent of the founders. (Justice Scalia did pen a concurrence in which he attempted to justify the decision on intent originalism grounds, but most scholars today find his arguments largely unconvincing.)
Similarly, members of the conservative wing of the Court have relied on the Fourteenth Amendment’s requirement for equal protection of the laws to overturn affirmative action programs which impose quotas or set-asides for members of certain historically disadvantaged groups. They do so on the basis that such actions constitute discrimination against, for example, whites and males. Yet, there can be no question that the Fourteenth Amendment was adopted primarily to protect against discrimination against Blacks. Yet here again, the intent originalists suddenly become textual originalists, and look to the words – which say that all people shall be entitled to equal protection – not what the authors’ goals were. (Proving that originalism does not provide a definitive answer, there is scholarship that finds that affirmative action could be held constitutional under the application of originalist principles.)
As another example, at the time it was ratified, the Second Amendment protected the right of the people to have weapons like muzzle-loading muskets and long rifles – because those were the types of weapons commonly held and used by state militias at the time. Just as the authors of the Civil Rights Act of 1968 would not have contemplated that law applying to sexual orientation and gender identity, the founders could never have imagined the Second Amendment protecting a right to possess semi-automatic handguns, semi-automatic rifles and various accessories. (I am aware that the technology to make such firearms existed in the late eighteenth century, but they were certainly not widely available or in use by even a tiny percentage of the American population at the time.) Yet, conservative members of the Court have had no problem extending the Second Amendment to cover these types of weapons. In fact, Justice Thomas, who claims to be a strict originalist, has said that the Second Amendment should protect any types of weapons that become commonly held; that is, it is a right that changes over time, as society changes. They become textual originalists, not intent originalists – because it provides the result they seek.
Oftentimes, it seems to me that identifying historical practices or understandings at the time of the Constitution’s or an amendment’s adoption misses the point entirely. In some cases, certainly, the purpose of the authors was to enshrine an existing and widely-practiced right or tradition. But other times, the goal is aspirational. The provision or amendment seeks to change behavior, in some cases radically. In this latter event, looking to practices or understandings at the time of the adoption could be exactly the wrong thing to do.
In the end, originalism should not be presented as a definitive means of constitutional interpretation that provides a single, rational, reasonable conclusion. Its application is always subject to substantial judicial discretion, and judicial modesty, properly conceived, must recognize that the ability of judges to divine a historical truth is limited. Rather, originalism is just one tool in a toolbox. It would be good for originalist judges to publicly acknowledge its limitations.