Originalism is Dead, Long Live Originalism
Tags: Supreme Court, Politics

By Habib Olapade

The Stanford Political Journal’s Brett Parker recently offered his objections to Donald Trump’s Supreme Court nominee, Neil Gorsuch. Despite Judge Gorsuch’s stellar academic and professional credentials, Parker argues that Gorsuch is blatantly unqualified to sit on the highest court in the land since he prioritizes understanding of the constitution’s original text over moral considerations when deciding cases. Originalism, according to Parker, is a racist and “intellectually dishonest” fringe theory that is ill-suited for interpreting a document intended to serve a modern and prosperous nation that is three hundred million strong.

First, Parker tells us that originalism was initially conceived to solve a non-existent problem — judges making laws instead of interpreting them. According to Parker, during the 1960s and 1970s the fact that some of its controversial decisions were widely supported by the public means the Supreme Court never re-wrote the constitution or ignored its provisions.

This point is mistaken. And any attempt to paint Neil Gorsuch as a modern-day segregationist is pure applesauce. During Justice Scalia’s and Thomas’ confirmation hearings, not one senator or fourth estate member claimed that either man’s preference for originalism was disqualifying. If not a single senator or press member bothered to worry about originalism, there is a good chance that the Stanford Political Journal’s arguments might be wrong. I will give the Journal the benefit of the doubt, however, and assume that they alone have spotted an issue heretofore neglected by the greatest deliberative body in the world and countless journalists.

Furthermore, Parker’s assertion that originalism is a fringe theory confined to Federalist Society gatherings is flat-out false. To the contrary, public meaning originalism is a mainstream legal theory among both liberal and conservative jurists. The liberal lions of the legal academy such as Akhil Amar, Lawrence Lessig, and Jack Balkin have embraced the theory with open arms. Past and present liberal Supreme Court stalwarts such as Ruth Bader Ginsberg, Earl Warren, Hugo Black, David Souter, and John Paul Stevens have all written originalist opinions. In fact, every Justice to sit on the Supreme Court has relied on originalism to some degree during her or his tenure. There is no room for debate — in the words of Ronald Dworkin, perhaps the greatest liberal legal philosopher of the twentieth century, “we are all originalists now.”

It should not take one long to figure out why this is. Public meaning originalism follows logically from four uncontroversial premises. First, the English language is not inherently subjective and proper use of words, grammar, syntax, and context can communicate objective meaning. Second, legal texts reflect the people’s will and have the force of law only because the texts were passed according to pre-established procedures. Third, a judge’s job is confined solely to finding a legal text’s objective meaning and applying that text to the case before her. Fourth, judges may be forced to interpret the Constitution in deciding a case. The conclusion from these premises is that the Constitution is a legal text.

Therefore, judges respond to the people’s will by striving to determine the objective meaning of the Constitution’s text when deciding cases. Public meaning originalism serves this goal by preventing judges from making laws based on their own discretion or judicial fiat. Our republic was founded on the people’s right to govern themselves; surely the Stanford Political Journal does not dispute this. The Constitution contains its own “rule of recognition” in service of this right. As we all learned in elementary school, it can only be changed if an amendment is proposed through a called convention or passed by Congress and ratified by thirty-eight state legislatures.

If the Constitution’s meaning were not fixed yesterday, today, and forevermore in its text, history, and structure, and if the Constitution could be revised by an “unelected committee of nine,” then the people have ceased to be their own rulers. The mere fact that “the-times-are-a-changin” does not mean our fundamental law is.

Parker disagrees. He tell us that the Supreme Court cannot be overstepping its bounds so long as the majority approves of its decisions to “reinvigorate our constitution.” But this phrase is a contradiction in terms. The Constitution is not a living document — its meaning was locked in when it was ratified. One cannot re-invigorate a cadaver. Moreover, popular approval for a decision should have absolutely nothing to do with its legal propriety. If Parker believes that popularity ought to trump propriety, then the Court’s approval of Japanese internment, Native American genocide, forced testicular/ovular sterilization, persecution of Jehovah’s Witnesses, and Jim Crow must be okey dokey.

In any event, public opinion polls from the late 1960s clearly indicate that Americans took serious issue with Court rulings that forced the police to turn self-confessed murders, rapists, and child molesters out on the street simply because a policeman forgot to utter a six sentence warning or could not use damning, albeit illegally obtained, evidence at trial. Ironically, our “living constitution” has multiplied, not eliminated, constrictions on democratic government. Consider what improper constitutional decisions have prevented our society from doing:

Permitting a harmless non-sectarian invocation of a generic supreme deity at a high school graduation

Terminating welfare payments as soon as evidence of fraud is received

Prohibiting moneyed special interests from misleading referendum voters with anonymous campaign literature

Prohibiting obscenity that constitutes female subordination and wrongfully fetishizes rape, battery, sexual harassment, and child sex abuse

But Parker tells us that searching for the Constitution’s original meaning is like searching for the Hope Diamond at Tiffany’s: the framers bitterly disagreed on several issues, any record of their disagreement is hard to come by, the records that exist are not trustworthy, and the English language (unlike, say, French) is prone to countless ambiguities. For these reasons, originalism is the perpetual motion machine of constitutional theories — perfect in principle, but impossible in practice. What a shame!

Not so fast. The Journal’s originalism critique rests on its confusion of two related, but separate, concepts. Public meaning originalists such as Neil Gorsuch only care about the written propositions in the Constitution. Originalists could care less about the framers’ specific legal expectations. The text — and nothing else — is alpha and omega. It does not matter, for instance, that the framers expected the Constitution to permit segregation. What does matter is that the Constitution’s text prohibits the states from denying to any of us the “equal protection of the laws.”

Finally, Parker claims that “it is infeasible to determine…what an average English speaker would take each constitutional provision to mean in the 1700s.” It is unclear what Mr. Parker means by this. He might be suggesting that it is impossible to interpret a text and capture ideas an author attempts to convey, because we each impose our own biases, experiences, and desires on the author’s work. I disagree. The English language enables each of us to communicate facts with objective meaning. Without this objectivity, we would be unable to intelligently discuss politics, fashion, sports, or works of art and literature. Tom Robinson did not rape Mayella Ewell, Billy Budd’s last words were “god bless Captain Vere,” Meletus did accuse Socrates of being godless in front of the Athenian Agora. Facts matter even when we discuss fiction.

This claim is beside the point, though, for the Constitution is not a makeshift Rene Magritte painting. It is a legal text with an objective meaning that does not provide a solution to every social issue under the sun. Indeed, it permits many lawful but awful things. Mr. Parker may have meant to say that some constitutional provisions are so vague that they might as well be tabula rasa. But, this position encapsulates the problem with the Stanford Political Journal’s bizarre and Kafkaesque theory. If we force the Constitution to say everything we want it to say from age to age, we will have caused it to say nothing at all.