Excerpt
The Originalism Trap
Chapter 1
HeistLawyers don’t often admit this in mixed company, but I’ll let you in on a secret about interpreting the Constitution: there is no one objective way to interpret the Constitution. If there were, what would be the point of judges? We could resolve legal disputes by simply inputting our claims and evidence into a computer that would output uniform rulings. We don’t do that, though, because judging calls for . . . well, judgment. A classic hypothetical law can show you what I mean: imagine a statute reading, “Vehicles are banned in the park.” One would have no trouble discerning that such a law would be broken by an adult wantonly driving a sports car over the public’s flowerbeds. But what about a child driving a toy convertible? Or a tourist riding a motorized scooter? Or a first responder driving an ambulance to an injured park-goer? Whether those are “vehicles” within the meaning of the law’s prohibition is debatable, so legal arbiters make judgment calls. Judgment is generally exercised in the American legal system through methods of constitutional interpretation. These methods tell us what should or shouldn’t be considered in order to figure out a law’s meaning. Judges need a fair and consistent way to determine what constitutional provisions mean and how to apply them in new and different cases. And “legal interpretative method” is a fancy way of saying “There’s a method to the madness.”
There’s been considerable debate historically over what sources and analytical approaches form the best basis for judicial decision-making. Indeed, courts may and often do consider more than just one interpretative method in isolation; they call upon a variety of factors including judicial precedent (what courts have done), historical practices (what people have done), and of course, the text of the Constitution itself. But over the last forty years or so, the conservative legal movement has been wildly successful at promoting the idea that “originalism” is the only legitimate way to interpret the Constitution. The originalist method ostensibly determines constitutionality by relying on the original public meaning of the Constitution at the time it was drafted. Circumstances may evolve, but the Constitution’s meaning does not—or as former Supreme Court justice and fierce originalist Antonin Scalia famously put it, “It’s not a living document. It’s dead, dead, dead.”
The sales pitch for originalism goes a little like this: originalism is objective. We can know authoritatively what the Constitution means, its supporters argue, by discovering what it meant to the public when it was adopted. And, some say, this is what the Constitution’s ratifiers wanted—former solicitor general and one-time Supreme Court nominee Robert Bork once wrote that “only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American republic.” So, if you want to know what rights you have, originalism commands you to consult a time capsule. Its proponents contend that to do otherwise is to lawlessly substitute your own policy preferences for the wisdom of the Founding Fathers. However, ironically enough, historical evidence suggests the Framers themselves did not want generations of Americans to be bound to their view of the document. Thomas Jefferson explicitly cautioned against excessive reverence of constitutions at the expense of societal progress, and further illuminated the absurdity by way of analogy. “We might as well require a man to wear still the coat which fitted him when a boy,” he wrote, “as civilised society to remain ever under the regimen of their barbarous ancestors.”
Despite originalism’s reputation as a serious intellectual theory, it’s more like dream logic: it seems reasonable at first, but when you wake up, you can recognize it as nonsense. Originalism deliberately overemphasizes a particular version of history that treats the civil-rights gains won over time as categorically suspect. The consequences of its embrace have been intentionally catastrophic for practically anyone who isn’t a wealthy white man, aka the class of people with exclusive possession of political power at the time the Constitution’s drafters originally put pen to paper (or quill to parchment). By treating the Constitution as “dead,” originalism deliberately entombs historically marginalized groups’ legal claims to liberation.
Which History Matters?There are levels to the intellectual dishonesty. Sometimes history surprises us. Yes, there’s a lot of bad, but it’s not actually all bad all the time. The period of radical reform following the Civil War is particularly noteworthy here. During Reconstruction, as this time is called, the country constitutionalized the emancipation of enslaved people and created federal safeguards to both protect their newly recognized freedom and affirmatively foster legal equality nationwide. Mention this to originalists, though, and they’re suddenly stricken with memory loss.
The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution fundamentally changed the document for the better by dramatically expanding the sociopolitical community and—for the first time—seeking to build a multiracial democracy with equal membership for Black people and other marginalized persons. The Thirteenth Amendment formally abolished slavery, except as punishment for a crime. The Fourteenth Amendment created birthright citizenship, forbade states from violating certain rights of citizens and noncitizens alike (more on this later) and prohibited states from denying any person equal protection of law, limited the political power of insurrectionists, empowered Congress to legislatively enforce these provisions, and more. The Fifteenth Amendment established a nationwide prohibition on race-based denial or abridgment of the right to vote, and again gave Congress the power to legislatively enforce this command. These provisions, collectively known as the Reconstruction Amendments, embody a constitutional renunciation of the government-mandated political, economic, and social inferiority of Black people that had existed for the entire history of the United States. Contemporary thinkers and activists used these antislavery ideals to challenge oppressive conditions throughout society and pushed the country to reassess what it meant by “freedom.” Professor Eric Foner, the preeminent historian of the Reconstruction era, tells us that the post–Civil War Amendments “transformed the Constitution from a document primarily concerned with federal-state relations and the rights of property into a vehicle through which members of vulnerable minorities could stake a claim to substantive freedom and seek protection against misconduct by all levels of government.”
The Reconstruction vision has revolutionary potential. This part of history is powerful. It is also not the part of history originalists care about. An academic analysis of how Congress members discuss the Constitution shows that originalism’s chief advocates (Republicans) frequently invoke the Founding Fathers and the Framers’ Constitution but remain practically silent on the Reconstruction Amendments and their ratifiers.
Instead, when originalists want to do a bad thing and the history isn’t on their side, they choose their favorite tidbits of the past and rewrite history until it is. Actual historians have decried this practice sometimes conducted by us attorneys as “law office history—a results-oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion.” More simply, it’s cherry-picking.
The formalizing of women’s second-class citizenship provides the most notorious illustration: when Justice Samuel Alito justified the decision to overturn Roe v. Wade, he did so in part by citing a famous seventeenth-century witch hunter and spousal-abuse apologist as a proper authority on women’s rights. You might hope that the prospect of curbing the rights of women based on the say-so of Sir Matthew Hale, whose contributions to the legal system include sentencing women to death as “witches” and establishing that men couldn’t be prosecuted if they raped their wives, would prompt some self-reflection. Unfortunately for millions of Americans of reproductive age, it did not. The Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that pregnant people do not have a constitutional right to end their pregnancies—and as a result can be legally forced by the government to carry a pregnancy to term—in large part because some misogynists of yore regarded abortion as a criminal act.
