Originalism, the school of constitutional interpretation currently modish among conservative lawyers and judges, is not so much an idea as a legal-industrial complex divided into three parts—the academic, the jurisprudential, and the political. In its first part, originalism is an academic pursuit, one that a large number of law scholars have embraced with gusto. A […]
Oof, this is a heavy read. As described throughout the article, originalism’s sex appeal is that it’s quippy and “safe”. By that I mean, when faced with a complex constitutional question that requires a priori establishment of principle to achieve an internally consistent conclusion, a judge is left pondering the most straightforward guiding principle. “The Constitution means what it meant when it was written.” It saves me (i.e the conservative justice) from having to inject my own understanding of the Constitution (and thereby actually own my responsibility), it’s elegantly simple, and it serves the unspoken purpose of giving me a nice, warm feeling when it helps me arrive at a conservative conclusion that I wanted to be true all along.
To the un-philosophied among us, the logical (but specious) alternative would be, “The Constitution means something different.” The follow-on question for the law student is, “But what?” The specious answer is “I decide.” So in choosing between alternative guiding principles, the Federalist Society has put such a heavy finger on the scale that young lawyers are tasked with choosing between their preferable answer (originalism) and what the author and Scalia call “nonoriginalism”, or more accurately, “the absence of a theory.” And in a vacuum a law student rightfully sees the potential for danger in the absence of a theory.
“But what kind of society would this be if each of us got to decide for ourselves? We could just make it up as we go along! There would be total anarchy!”
edit to add: It’s intentionally framed to bait an opposing view that’s obviously flawed. By adopting “pro-life”, conservatives force you to be “anti-life”, which is facially ridiculous. Same with “pro-2nd Amendment”, “pro-freedom”, and same principle here. It’s either originalist, or…what, un-moored from the original intent? The position presupposes a frame that you don’t have to subscribe to, and the response is not to come up with a logically oppositional viewpoint, but to supplant it with something more accurate, like “pro choice.”
Is it any surprise that conservative politicians have spent years decrying “judicial activism” and “legislating from the bench”? They’ve literally made the cultivation of a novel opinion based on empathy, fairness, freedom, and efficacy a bad thing, because judges aren’t supposed to deviate from the written word without replacing it. They’re supposed to read and enforce it as it stands! It’s no surprise that in the long arc of history this kind of theory just happens to preserve existing power structures and grind the ability of a society to progress beyond those power structures to a screeching halt. It’s a theory that almost effortlessly protects the already powerful against change. It doesn’t just enforce the law, it gives judges immense amounts of power. It’s not “apolitical”, it’s fundamentally political.
The challenge here is that if you want someone to stop doing something, you have to give them a suitable alternative. Before they get off one path, you have to show them another one, rather than letting them wander through the woods. There must be a competing theory onto which they can latch when they’re grasping for explanatory power. Federalists have spent the past 60 years making sure there is no valid alternative theory, and the result is that originalism is so embedded in our legal discourse that it’s almost taken for granted. “Duh, originalism. There’s no other option.”
As luck would have it, there most certainly is! And it relies on allowing judges to judge, rather than enforce, so that they arrive at a conclusion that protects the principles that the Constitution was written to enshrine, rather than protecting the specific kind (or color) of person who wrote it.
The bit at the end is a gut punch of reality:
Judging is, in fact, far more like carpentry than like science. Indeed, a judge interpreting a constitution in its third century is like a carpenter called in to renovate some part of an early Federal-era house. I have hired skilled craftspeople to do renovations on my house; I did not ask them to imagine their perfect house and then to tear down the parts of mine that don’t conform to that imagination. Scientists needed counter-theories to replace the idea of phlogiston or of the heliocentric universe; carpenters don’t need a theory of building. They need skill, care, well-maintained tools, and immemorial techniques to build on the level and the square.
Today’s conservative majority does not limit itself to lawyers’ work; it is building a legal house of its fancy on the sand of pseudoscience. Eventually, and perhaps catastrophically, the rains of reality will fall, the winds of change will blow, and great will be that house’s fall.
Right now the spin top is wobbling on the American experiment, and a myopic bunch of robed neophytes have helped amplify and supercharge the weaknesses of our democratic system (see Shelby, DC v Heller, Citizens United, Dobbs, Loper Bright, etc). In 40-50 years we will look back on this period as wrought by a bunch of morons who refused to see the forest for the trees, and who didn’t see the danger of gazing at their own navels until it was too late to save the Republic. My hope is that the pendulum swings against originalists sooner, rather than later, so that we can again begin to embrace the ability of the Constitution to guide our fortunes, rather than prescribe them.
If they could be strictly Originalist though, I could almost forgive them. I don’t see a real Originalist argument for Presidential Immunity, as just one example.
This is the main issue with so-called originalists. If they dispassionately followed their own philosophy it would be one thing. The law is the law, as written and as intended by its authors. There is a certain undeniable logic to this approach, and I think even if you reject it, it is fundamentally a philosophy that one could respect.
But orientalists never did this. They have constantly engaged in at least as much “legislating from the bench” as other jurists. It is a rare day when we saw a decision where originalism overcame their right-wing ideology.
In practice, originalism is just a rhetorical weapon, and not a serious idea.
Oof, this is a heavy read. As described throughout the article, originalism’s sex appeal is that it’s quippy and “safe”. By that I mean, when faced with a complex constitutional question that requires a priori establishment of principle to achieve an internally consistent conclusion, a judge is left pondering the most straightforward guiding principle. “The Constitution means what it meant when it was written.” It saves me (i.e the conservative justice) from having to inject my own understanding of the Constitution (and thereby actually own my responsibility), it’s elegantly simple, and it serves the unspoken purpose of giving me a nice, warm feeling when it helps me arrive at a conservative conclusion that I wanted to be true all along.
To the un-philosophied among us, the logical (but specious) alternative would be, “The Constitution means something different.” The follow-on question for the law student is, “But what?” The specious answer is “I decide.” So in choosing between alternative guiding principles, the Federalist Society has put such a heavy finger on the scale that young lawyers are tasked with choosing between their preferable answer (originalism) and what the author and Scalia call “nonoriginalism”, or more accurately, “the absence of a theory.” And in a vacuum a law student rightfully sees the potential for danger in the absence of a theory.
“But what kind of society would this be if each of us got to decide for ourselves? We could just make it up as we go along! There would be total anarchy!”
Is it any surprise that conservative politicians have spent years decrying “judicial activism” and “legislating from the bench”? They’ve literally made the cultivation of a novel opinion based on empathy, fairness, freedom, and efficacy a bad thing, because judges aren’t supposed to deviate from the written word without replacing it. They’re supposed to read and enforce it as it stands! It’s no surprise that in the long arc of history this kind of theory just happens to preserve existing power structures and grind the ability of a society to progress beyond those power structures to a screeching halt. It’s a theory that almost effortlessly protects the already powerful against change. It doesn’t just enforce the law, it gives judges immense amounts of power. It’s not “apolitical”, it’s fundamentally political.
The challenge here is that if you want someone to stop doing something, you have to give them a suitable alternative. Before they get off one path, you have to show them another one, rather than letting them wander through the woods. There must be a competing theory onto which they can latch when they’re grasping for explanatory power. Federalists have spent the past 60 years making sure there is no valid alternative theory, and the result is that originalism is so embedded in our legal discourse that it’s almost taken for granted. “Duh, originalism. There’s no other option.”
As luck would have it, there most certainly is! And it relies on allowing judges to judge, rather than enforce, so that they arrive at a conclusion that protects the principles that the Constitution was written to enshrine, rather than protecting the specific kind (or color) of person who wrote it.
The bit at the end is a gut punch of reality:
Right now the spin top is wobbling on the American experiment, and a myopic bunch of robed neophytes have helped amplify and supercharge the weaknesses of our democratic system (see Shelby, DC v Heller, Citizens United, Dobbs, Loper Bright, etc). In 40-50 years we will look back on this period as wrought by a bunch of morons who refused to see the forest for the trees, and who didn’t see the danger of gazing at their own navels until it was too late to save the Republic. My hope is that the pendulum swings against originalists sooner, rather than later, so that we can again begin to embrace the ability of the Constitution to guide our fortunes, rather than prescribe them.
If they could be strictly Originalist though, I could almost forgive them. I don’t see a real Originalist argument for Presidential Immunity, as just one example.
This is the main issue with so-called originalists. If they dispassionately followed their own philosophy it would be one thing. The law is the law, as written and as intended by its authors. There is a certain undeniable logic to this approach, and I think even if you reject it, it is fundamentally a philosophy that one could respect.
But orientalists never did this. They have constantly engaged in at least as much “legislating from the bench” as other jurists. It is a rare day when we saw a decision where originalism overcame their right-wing ideology.
In practice, originalism is just a rhetorical weapon, and not a serious idea.
Well stated. It’s a conclusion searching for an explanation, rather than a true first principle.
Absolutely. The fact that they pick and choose when to employ it, and with how much rigor, kinda pulls the curtain back on the whole charade.
Can’t reason someone out of something they didn’t reason themselves into