The Original Meaning in History
By: Luther Blissett
Tags: Supreme Court, Judicial Reform, Originalism

A.N. Whitehouse once famously described the whole of Western philosophy as “a series of footnotes to Plato,” a phrase that has since become so famous that it has become largely unmoored from its original meaning to become a snippet that people who don’t know much about Western philosophy say in order to sound clever. It is also, of course, wrong and only makes sense in the sense that humans are a footnote to ammonites.

But that aphorism probably holds more water in other areas and particularly in the case of the partisan hackery that passes for discourse on the subject of American constitutional law. The inspiration for this essay was a Twitter user (whose name I’ve now completely forgotten) who posted that American constitutional law was the equivalent of nobody ever having written anything since Plato’s ‘Republic’ (leaving aside that Plato didn’t write down the ‘Republic’) and instead everyone just argued about the extent to which their views aligned with that book.

Americans sometimes like to say that they live in a “young country” but, in constitutional terms, the exact opposite is true. Not only is the main text of the US constitution older than any other extant constitution but it is also venerated to an extent that is probably poorly understood outside of the United States. All forms of American jurisprudence have drawn on the drafting of the Constitution. But it is only originalism that argues that the constitution today should be interpreted in accordance with the original meaning of its words when it was drafted.

As with most of the conservative judicial movement’s origins, originalism can be traced back to work done in the 1970s and 1980s in response to the progressivism of the Warren Court and, to a lesser extent, the Burger Court that succeeded it. Figures on the political right complained that judges were substituting their own opinions for the text of the constitution. To an extent, this point is kind of inarguable: Justice William O. Douglas, for example, famously made very few references to case law in his opinions, basing them instead on insights about contemporary politics and vaguely lyrical philosophical musings. (If you’re interested, it’s worth reading some of his opinions in your spare time: they’re interesting essays but poor judicial rulings.) And while it may offend contemporary liberal sensibilities to say so, the majority opinion in Roe v. Wade is kind of absurd if you think about it: a collection of 18th century men clearly did not intend to write access to safe abortions into their state constitution.

(I should add that I personally am in favour of women having free access to safe abortions and would not welcome the Roberts Court’s inevitable overturning of that ruling or simply chipping away at it until it has no practical effect. I just think that this should properly be done through legislation: that is, after all, the point of democracy.)

Theoretically, the purpose of originalism is to strip judges of their interpretive abilities. The Constitution’s meaning could not evolve — barring the various amendments that have taken place over the years — and must remain fixed and constant. The Constitution’s meaning, therefore, has to be its original meaning. Hence the name. The problems emerge immediately and the most overarching one should be obvious: while originalism is an interesting way of looking at an historic document, its purpose is not to do that but to guide how judges relate to the Constitution in the present. One does not have to be a postmodernist committed to the infinite multitude of mutable meanings to conclude that this necessitates interpretive work. How might an originalist judge locate this original meaning?

The most obvious answer was for originalist judges (or at least their overworked clerks) to become something like amateur 18th century historians. Court cases in this period, the 1970s and early 1980s, did genuinely turn on the question of what Alexander Hamilton said about a certain clause in the relevant volume of the ‘Federalist Papers’. It doesn’t take the most ivory-towered tenured academic historian to appreciate that this is a pretty loose way of understanding the mythical “intention of the framers” but we can still see here the emergence of an organising interpretive framework.

But, of course, while an interpretive framework that took James Madison’s and Alexander Hamilton’s views to be definitive when it came to the “original meaning” of something like the US Constitution might suffice for undergraduates, it is less satisfying when the people doing that are judges because they do, you know, important things. These conceptual questions can be drilled down to a simple question: whose original meaning? It’s common shorthand in American high schools to say that “James Madison wrote the Constitution” (although the success of the musical means that Hamilton might have taken some of that crown nowadays) but of course we know that that was not true. The Constitution’s text came out of a 55-person committee and was then ratified in the individual states by over 1,500 people across multiple ratification conventions.

But these are just the people who agreed with the Constitution as enacted. Numerous American Founding Fathers, including ones as significant as Samuel Adams, James Monroe and Thomas Jefferson, were against ratification for reasons which had to do with their interpretation of what was in the Constitution. Particularly in the case of Jefferson and Monroe, it seems absurd to argue that their interpretation of the Constitution’s “original meaning” doesn’t count. Many have also pointed out that the framer’s original intent was for the Constitution to not be interpreted in accordance with their original intent, thus causing originalism to turn in on itself. (The full explanation can be found here for those interested.)

So originalism as a judicial movement began to move away from a strict academic meaning of what the framers intended and towards something profoundly different, something founded upon a particular reading of the linguistic turn that so changed academic history in the 1980s and on the development of reliable and vast online databases in the 1990s. The focus of originalism shifted away from asking what the framers thought their clauses meant to asking what the “public meaning” of the clauses was at the time.

There’s an intuitive sense to this shift but it does have the effect of claiming that you’re channelling the mythical “framers’ intent” while explicitly not worrying about the intent of the actual framers. Now instead originalists are trying to work out what the constitutional text would have meant to the average reader when it first went public, hence its common nickname of ‘public meaning originalism’.

But public meaning, for public meaning originalists, doesn’t require study of the intellectual debates of the 18th century or even an analysis of subsequent case law. Instead we must apparently only study word usage in the aggregate, creating a class of jurisprudence uniquely obsessed with and uniquely reliant on period dictionaries and grammar manuals and of running keyword searches in digitised document databases. Thus, the public meaning originalists assert, if we are considering whether a federal act properly falls under the Commerce Clause of the constitution, we don’t need to consider case law, practicality, the democratic movement that lead to the act passing, the contemporary common meaning of the word, the intellectual context in which that word was discussed in the 1780s or anything like that. Instead the only relevant thing to do is collect all evidence of word usage in the 1780s and declare what, specifically, the word meant. If, after all of this, the meaning remains ambiguous, then we ought to consider the “publically available communicative context” at the time of the Constitution’s passing. Fortunately for public meaning originalists, and the politicians who have so assiduously promoted their careers, this “publically available communicative context” amounts to little more than vague gestures at ‘common sense’ and just so happens to align neatly with whatever the political priorities of the Republican party are at the time.

The long term results of this are so absurd as to be almost not worth discussing on their own terms. While there is some merit to the prestige in which the Founding Fathers are held by contemporary Americans, it is entirely unclear why the opinions (often entirely unrelated to the Constitution) of the public that surrounded them should be raised above the meanings of every subsequent generation. The exclusivity of originalism is also insane and oddly underdiscussed. Of course the Constitution does not explicitly provide for the federal government to pass healthcare legislation. Why would it have done in the 1780s? The fragile screen behind which lurks naked political self-interest is made all the more frustrating by the insistence of the perpetrators that the screen must remain up which they smile smugly behind it.

Of course, the wider point behind all of this is that American constitutional law is utterly ridiculous. The origins of this failure go back to Marbury v. Madison (1803), the case which established the Supreme Court’s veto over any and all state and federal laws. Frankly, it was wrongly decided: it is an absurdity that a court can have the power to throw out or, let’s be real, edit any laws they want. Not only is this a ridiculous level of power to give to an unelected court (something other advanced democracies do not grant their constitutional courts) but it also means that the courts will inevitably become politicised. This isn’t a recent development: John Marshall was a Federalist Secretary of State under John Adams; Roger Taney was Andrew Jackson’s Treasury Secretary; Abe Fortas had been a long-term New Deal apparatchik. This level of politicisation is ultimately necessary because the courts immediately gave themselves what is, in effect, both legislative and executive power and nobody thought to reform that. Of course, in this scenario, the judges would be political: they are taking political decisions.

It would make sense for federal courts to be able to strike down state laws that contradict federal laws, on the basis that federal law is supreme to state law. Similarly, executive actions can surely be struck down on the basis that the executive acted outside of his powers. That’s fine. Similarly, there are clearly some provisions of the constitution, namely those that relate to the timing of elections and makeup of the three branches of government, that should require some protection, by the courts if necessary. But the idea that a piece of legislation be promoted in the election campaign of a party, go through the myriad legislative reviews required to pass through Congress and then be signed by the President, only for a court to say “actually, no” is just so anti-democratic and enraging. This works both ways, by the way. Just as it would be absurd for a Republican Court to throw out healthcare legislation for purely party-political reasons, it would be equally democratically unjust for a Democrat-expanded court to throw out the GOP-backed Blue Lives Matter Pins for All Act of 2028.

If there is one good thing that may come out of the current discourse around the Supreme Court, it will be to destroy the legitimacy of the court and cause it to pull back from the stance they’ve had for two centuries. Until then, perhaps the best we can hope for is to expose the originalism of the Republican Judges for the naked party-political partisanship that it really is.