Is constitutional originalism even possible? Does it even mean anything?
Advanced most influentially by Robert Bork and Antonin Scalia, two law professors turned judges, originalism contends that the Constitution should be interpreted and enforced on the basis of its “original meaning,” namely what it meant when it was adopted.
But how do we know what it meant when it was adopted? How do we find out what it meant then?
There is a certain appeal to originalism. At a time when the world seems increasingly complicated, originalism, like other forms of fundamentalism, promises simple answers. At a time when distrust of institutions, including courts, is high, originalism purports to tie judges’ hands. And in a divided nation that no longer seems to have shared values, originalism directs courts to enforce the understandings of a presumably more cohesive past.
Presumably indeed; it was “cohesive” in the sense that most people had no voice, which does simplify things a lot but doesn’t demonstrate that everyone agrees with the few voices that do get heard.
But the simplicity and objectivity that originalism promises are a charade. In Worse Than Nothing, Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law and one of the nation’s leading constitutional scholars, offers a concise, point-by-point refutation of the theory. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.
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Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists.
Well it’s like God’s intent. There is no evidence, but we know it when we see it.
After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted.
And to discover that all we have to do is ask said public. Simple.
Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, Chemerinsky argues, “for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”
But but but how can that be? How can it be complicated? Surely the further back in time we go the simpler everything gets!
Even when the Constitution contains relevant text, its meaning is often ambiguous. Many books have been written explicating the meaning of “equal protection” and “liberty” in the Fourteenth Amendment; a dictionary from 1868 or a review of contemporaneous laws and practices will generate multiple possible definitions, thus vesting the originalist with plenty of discretion about which to choose.
It’s ok for the originalists to have discretion, but those pesky liberals can’t be trusted with it.
More significantly, does the equal protection clause of the Fourteenth Amendment prohibit racial segregation? If one reads the term “equal protection” in light of contemporaneous practices in 1868, one would conclude that segregation was permissible—as seven of eight Supreme Court justices did in Plessy v. Ferguson (1896). To hold that segregation is prohibited, one must read the guarantee of equal protection at a higher level of generality and apply its principle of equality in a way that the ratifying generation would not have. The same is true for whether the clause prohibits sex discrimination. In 1868, women lacked the vote and were excluded from many professions, including the practice of law. And the immediate aim of the amendment was to protect newly freed slaves, not women. It wasn’t until the 1970s, in the midst of the women’s rights movement, that the Supreme Court interpreted it to presumptively prohibit sex discrimination.
Higher level of generality=something like: no discrimination on arbitrary grounds that keep some groups of people powerless and marginal. It’s a very important higher level of generality, one that was apparently so high that almost no one could even see it until relatively recently.
Perhaps most fatally, originalism fails its own test. There simply is no evidence that the Constitution’s original meaning was that it should be interpreted according to its original meaning. There is substantial reason to believe the contrary. The fact that the framers used general terms, such as “liberty,” “due process,” “equal protection,” and “cruel and unusual punishment,” strongly suggests that they understood they were drafting a charter meant to long outlive them, one that could guide unforeseeable resolutions to unforeseen problems. If you want to bind people to your specific intentions, you write with specificity. The framers chose not a stringent straitjacket but a set of enduring core principles whose meaning and applicability would unfold over time to meet the evolving needs of a growing nation.
Evolving needs: who could possibly have foreseen such a thing?