The Left Is Twisting the Meaning of ‘Originalism’

It seems they would rather replace it with empathy.

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Amy Coney Barrett, President Trump’s Supreme Court nominee, is an “originalist.” Given that originalism is a term coined by lawyers, it shouldn’t surprise anyone that there are many different flavors of originalism. But, as Barrett explained in her confirmation hearings, they all share the basic idea that the meaning of the Constitution can be found in the Constitution. 

“So in English,” she explained, “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.”

I don’t understand why this should be a difficult concept to understand. And yet for some people, it remains not only incomprehensible but utterly contemptible.

Dan Rather, who for decades at CBS News cast himself as a neutral reporter of facts, declared on Twitter the other day: “If you want to be an ‘originalist’ in law, maybe you should go all the way. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Or maybe you can recognize that the world changes.”

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  1. Avatar photo
    Andrew

    So, I am confused about something about this thesis ... not as presented in this post, but as presented in the Friday episode of The Remnant. I don't see a place to specifically comment on The Remnant, so I'll leave it here ... but let me know if there's somewhere else where that would be more appropriate.

    In The Remnant episode, Jonah said something along the lines of, "If someone wanted to say that having a bazooka was protected by the Second Amendment, they would be abusing the meaning of the Second Amendment." But I could not follow at all why that would NOT be precisely the originalist interpretation of the Second Amendment. I have long held that the Second Amendment contains no limiting principle, so if you were going to be committed to the explicit text of the Second Amendment, you would not be able to ban tanks, bazookas, RPGs, grenades, nerve gas, or, heck, even nuclear bombs. The Second Amendment gives people the right to keep and bear arms ... and, to the degree that the first "militia" clause signifies anything clear about the Founders' intent, it certainly signifies that they intended the Second Amendment to apply to military-grade equipment.

    So what *is* the originalist's reason to infringe on some sort of military arms, based on originalism? Isn't *any* ban or infringement already at least a step away from originalism?

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  2. Kiernan McAlpine

    I am not an originalist. However, I find it highly unlikely that I misunderstand originalism. I wrote my senior honors thesis about the Eighth Amendment and capital punishment, and had a section devoted to originalism. I have a law degree and a philosophy degree with a concentration in political philosophy. I have spent thousands of hours researching this subject. So I don’t think I misunderstand it, I just don’t agree with it, because I don’t think the original intent as distinguished from the text is very relevant very often. I find originalism where it would lead to different outcomes from textualism to be right wing judicial activism.

    And the distinction between originalism and living constitutionalism is a false one that’s outdated. Justice Kagan said, “We’re all textualists now.” Living constitutionalism was a thing during the Warren and Burger courts.

    To prefer an interpretive philosophy that is utterly determinate is just that, a preference. Determinacy is the advantage of originalism but it’s the primary limitation. To the extent originalism deviates from textualism it is right wing judicial activism that “blue pencils” broadly written law (that could have been written in far greater detail and specificity) and limits it beyond the text, to the effects understood at the time to be intended by the passage of the law. It’s activism that fixes a determinacy problem.

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  3. Avatar photo
    Kyler

    Skimming the comments, I cannot help but notice that a vast majority, either defending or criticizing, originalism as a judicial philosophy fail to take into consideration that the founders also disagreed with one another as to the what text of the Constitution (and other laws) meant, hence the need for judicial review--a power which was assumed to belong to the court and which was emphatically claimed by the court in Marbury v. Madison--to settle those disputes.

    Originalism's incorrect assumption, at least in my mind, is that the original meaning of the Constitution is usually readily discernible. In the comments there was a great deal of mention about D.C. v. Heller. If my fellow dispatchers would care to read both the majority, authored by Scalia, and Stevens's dissent, they would quickly recognize that the dispute was not over whether we should look back to the original meaning, but what the original meaning was in the first place. Absent a clear answer--and given the nature and definition of the word dispute, there seldom is a clear answer--we have to turn to other sources, including the fact that the court exists to do justice. In so doing, I am not suggesting we lose sight of the text, but only that the text does not always provide the answer by itself.

    None of the "liberal" justices on the court have ever--with the possible exception of Justice Douglas--so ignored the text of the Constitution (or other law at dispute), as is suggested by many, as to reach conclusions utterly divorced from the text itself. The real issue has little to do with judicial philosophy; it has to do with interpreting the text of the Constitution, which does not always lend itself to any one clear, easy, and simple answer. It is where that interpretation begins that the conversation actually gets interesting. Disputes about judicial philosophy, it seems to me, always end up being more for show than substance and almost never include analysis of the text of any given provision of the Constitution--perhaps because then everyone would have actually to read the Constitution and admit that these disputes are not as obvious as their partisan instincts insist.

    Happy belated Leif Erickson day, everybody! Hinga, Dinga, Durgen!

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    1. Rational

      It is not an issue of the unspecified intent of the Founders. It certainly is true that there were many different people who had different ideas of how the Constitution should function at the founding. The premise of originalism is not that one should scour the Federalist Papers and the other comments of the Founders at or near the drafting of the Constitution. Rather, it is an effort to understand what a reasonable person would have understood the TEXT to mean in 1789. The reason is simple. Anglo-American political theory of the time focused on the social contract and the consent of the governed for limitations on freedom. If the concept of "cruel and unusual punishment," for instance, was entirely different among the populace in 1789 than it is now, there has been no consent of the governed for the modern understanding, only the original understanding. Obviously, there are problems with this idea since it assumes intergenerational consent, but at least that is something. By the way, that is why Jefferson thought that the Constitution should be redrafted for every generation.

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      1. Avatar photo
        Kyler

        Thank you for the response. In response to your response, I would say the founders were the most reasonable men of the time. Men of the enlightenment, America's founders were some of the most well reasoned men in all human history, and the best understanding of what the text of the Constitution would have meant at the time it was written is by studying what those men wrote about it. In that regard, our options are limited. The Convention notes were not even widely available until the early twentieth century, so there is nearly a century and a quarter of Constitutional jurisprudence not based on what the most reliable source of the meaning of that text said about that text. Having the Convention notes now, we can quickly note the discrepancies between them and the Federalist papers. We can also note the discrepancies between both the Convention notes and the Federalist papers with the extensive correspondence of the founders.

        All this just begs the question of what the text means. In D.C. v. Heller, as I said, the debate was all about what the words of the second amendment would have meant at the time they were written. This is the basis of both Justice Scalia's majority opinion and Justice Stevens's dissenting opinion. The concept of originalism does not help to decipher the second amendment. Originalism gives it adherents no unique insight into what the Constitution would have meant at the time it was written. We can only speculate based off of what we can read in the aforementioned documents and by giving the words of the text the meaning they would have had at the time. But do not for a second assume that using old dictionaries, reading ancient newspapers, or studying the writings of the founders themselves to derive that meaning, will make any phrase in the Constitution, be it "the right to keep and bear arms" or the prohibition against "cruel and unusual punishment," perfectly clear. It may somewhat narrow the possible meanings, but there will still be plenty of room for differing interpretations. What I posit is that the so-called liberal justices on the Supreme Court do not stray as far away from the possible original meaning of the text of the Constitution as often or as egregiously as is generally asserted by originalists and conservatives.

        Just as a quick example, regarding the concept of "cruel and unusual punishment," not having made any kind of deep or formal study of the matter, I would only say that the Quaker influence on the Constitution--and particularly the criminal justice amendments--cannot be overstated. While I am well aware that the standard is not what a reasonable Quaker would believe, a reasonable person who is also a Quaker would interpret that phrase far more liberally than a Scotch-Irish backwoodsman from North Carolina, so that the original meaning of the prohibition against "cruel and unusual punishment" is still in the air. Other provisions, like "the right to keep and bear arms," lend themselves far more to differing interpretations. I contend that both Justice Scalia's and Justice Stevens's interpretation of the second amendment in D.C. v. Heller are perfectly reasonable, and I challenge anyone to read Justice Stevens's dissent and tell me that it is not a serious and intellectual attempt to discover the original meaning of the second amendment. I don't believe anyone will be able to do it.

        Not knowing exactly what the text of the second amendment could mean, I think there are other legitimate considerations that can be employed in judicial decision making (on second amendment cases and all other matters before the court), including notions of judicial restraint, stare decisis, and a justice's own sense of what justice demands in the particulars of a case. An originalist stops at his own interpretation of original meaning. I just take it a few steps further, but I do not discard original meaning, nor do any of the "liberal" justices. Taking those extra steps does not mean there has been no consent from the governed, and it does not destroy original meaning.

        I didn't intent to write a novel, but here you go anyway. Happy reading.

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  4. Avatar photo
    Show Jay Janney the 🚪!

    If toast always lands butter side down and if cats always land on their feet, if you strap buttered toast to cat, on which one does it land?

    It's a good way of understanding ACB's argument on she believes the constitution can strip voting rights from felons, but not necessarily the right to own a gun, as they occur under different sections of the constitution.

    The constitution itself does not internally cohere as much as we want it to. Judges choose which parts they like, and rule based on that. This is why under originalism you'd still need judges. But that differs from interpretations, where judges can argue that was was written may be clear, but voidable.

    As a management professor, my own take is that originalism is a good device to limit agency problems. If judges are human, then ambitious ones would want to grandstand to make a name for themselves (it is certainly true in academia!). That would seem easier under a living constitution than under originalism.

    I'd ask you, however, to avoid conflating literalism with originalism, as literalism is a much more extreme version of originalism.

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  5. Mike Higgins

    I wonder if you apply the same "originalist" logic to interpreting the bible? Biblical literalists seem to me to be akin to Constitutional originalists. Didn't the West Wing episode where President Bartlett wondered if the was required to kill his daughter for working on the Sabbath. So too Rachel Held Evans attempt to live biblically for a year. Read the spirit of the law, not it's outdated letter. I doubt the standard for moving forward is "empathy," but surely the notion of protected classes like race, ethnicity, and religion make sense to require strict scrutiny. And surely we can find it within ourselves to ban assault rifles from our streets. How did Amy Barrett uphold her distinction between withholding guns from violent felonies while giving them to non violent felons? I can't find that in the original Constitution as drafted in the 18th century.

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  6. Avatar photo
    Rajeev

    The problem is too many people are uncomfortable in amending the constitution. I know if we started and rewrote the constitution today every single member of congress would incorporate a percentage less than 100% of the current constitution in their new version. So why is it that anything that is "unconstitutional" has become synonymous with bad or evil? From an originalist perspective my own take would be that it likely wasn't intended to be this hard to change in practice.

    So in the absence of reasoned debate it's no surprise people on both sides look for the courts to reinterpret toward their perspective. If you even mutter the words "we need to refine the second amendment" or "we should codify this right explicitly into the constitution" people accuse you of being anti-American as if these words in the constitution are supposed to last forever...large segments of our descendants and current population are glad that the people who never want to change the constitution are wrong. It's just sad that we can't have a debate about amending the constitution to adjust to the times.

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  7. Token Liberal

    Sometimes it seems like the conservatives on the court simply tout originalism to achieve conservative legislative results. Deciding that corporations can have a religion? That a unanimous act of congress under the voting rights act is unconstitutional? ACB refusing to say if social security is constitutional?

    I understand your skepticism about the living breathing version of constitutional law. Please also accept that there are good reasons to belive that originalism is nothing more than a fig leaf to cover up a political agenda.

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  8. Catherine Dempsey

    Several years ago, I watched an old interview of Thurgood Marshal on CSPAN. He was asked what his approach was to making decisions. I don't recall the year of the interview, but he was quite elderly. He said that he decided based on what he thought was right and then waited for the law to catch up. These appeals to empathy are the same thing and is not what a Supreme Court Justice should do.

    "Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exericised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law."
    John Marshall

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    Murrayprof

    Isn't the National Security Act of 1947 unconstitutional because Article 2 Section 8 specifically enumerates an army and a navy but not an air force? Otherwise a broader reading of the necessary and proper clause in any court challenge would be judicial activism.

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    Patrick

    Too many people have predetermined that one side operates with nefarious intent, while the other side doesn’t. Once that’s your worldview, it’s impossible to see anything else.

    Never ascribe to nefarious intent that which can be ascribed to sincere human complexity.

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    1. CW

      Read or listen to this article and then come back and tell us that Republicans do not have nefarious intent. Principled Republicans acknowledge what they are doing.

      “It really becomes an apartheid system,” said Inglis, one of the few Republicans willing to speak openly and honestly about his party’s strategy [of partisan gerrymandering and voter suppression]. “They created a system where a minority has full control of the power.” Inglis, a reliable conservative elected and reelected over two decades, now concedes the bald calculation behind the great post-2010 power grab on the right: His party manipulated race to win—and everyone went along with it. “It was palpable. It was pretty intense,” he said, about the change among Republican electeds and constituents after Obama’s 2008 victory. .. It worked. It worked to create a constituency. But at what cost?” Inglis paused and answered his own question. “The cost of not preserving the republic.”


      “You feed a crocodile, a crocodile’s going to come eat you eventually,” Inglis said. And that’s the moment, I suggested, that the crocodiles are free to run things. “Right, they put the crocodiles in charge,” he replied. “And then the crocodiles devoured them."

      https://newrepublic.com/article/159755/republican-voter-suppression-2020-election

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      1. Avatar photo
        Patrick

        Why did you assume which side and which issue I was talking about? You’ve perfectly illustrated my point.

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        1. CW

          I have no idea which side or issue you were talking about since you didn't say and I wasn't making any assumptions on it. It was your last line I was responding to, but upon rereading the whole comment about predetermination I realize I was reading it out of context. So, I agree. Only when there is factual evidence should we ascribe nefarious intent.

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