Originalism, in Amy Coney Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.
One of the primary appeals of originalism is that it purports to constrain judges by requiring them to follow a written text even when they dislike the outcomes that text commands.
[…]
At least in theory, originalism prevents judges from making this mistake by lashing them to the unchanging meaning of a written document. And, at least on the surface, its core insight that judges are bound by the Constitution’s words seems obvious: Of course judges should obey the text of the Constitution!
In reality, however, following the text of the Constitution is more complicated than it sounds.
For one thing, the Constitution is riddled with ambiguous language. What are the “privileges or immunities of citizens of the United States”? What makes a search or seizure “unreasonable”? If the government wants to deny “liberty,” how much “process” is “due”? What’s a “public use” of private property? What is the “general welfare of the United States”?
The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted. There are limits to what a judge can learn about constitutional meaning by combing through historical documents, or by reading 18th-century dictionaries.
Barrett herself seems to acknowledge this problem. “For an originalist,” Barrett wrote in 2017, “the meaning of the text is fixed so long as it is discoverable.”
Then there’s the problem of precedent. What should an originalist judge do if they are convinced that a longstanding practice — perhaps one that the Supreme Court itself declared constitutional in a prior opinion — violates the original understanding of our founding document?
[…]
Barrett has wrestled at length with the problem of precedent in her scholarship. “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” she acknowledges in a 2016 article co-authored with scholar John Copeland Nagle. She also states in that piece that there are some past decisions that “no serious person would propose to undo even if they are wrong,” so Barrett appears to recognize that it would be irresponsible for an originalist judge to overrule every precedent they believe was wrongly decided.
In a 2017 essay, Barrett suggests several tactics that an originalist Supreme Court could use to avoid triggering chaos. Because the Court’s “discretionary jurisdiction generally permits it to choose which questions it wants to answer,” for example, she suggests that the Court can simply agree not to hear cases seeking to legalize public school segregation. Or seeking to declare the dollar unconstitutional.
[…]
But there is much at stake if an originalist Supreme Court is not willing to stay its hand in the ways Judge Barrett suggests.
[…]
As it turns out, originalism potentially gives judges — or, at least, Supreme Court justices — tremendous discretion to decide whether to upend foundational legal principles that few Americans would care to see unsettled.
[…]
In the past century, there have been three great waves of originalism. The first, spearheaded by [Justice Hugo] Black, sought to tear down prior efforts by conservative judges to thwart progressive legislation. The second, led by men like Scalia, was primarily a backlash against decisions like Roe v. Wade (1973) — decisions beloved by liberals and hated by conservatives.
The third wave, meanwhile, also has its roots in legal conservatism, but it is quite distinct from the restrained vision of judging advocated by Justice Scalia (or, at least, advocated by Scalia in the 1980s). Led by men like Thomas and Gorsuch, third-wave originalists are quite comfortable with judicial power. And they are eager to use it to drastically reshape the law.
[…]
Before Black joined the Court, most of the Bill of Rights was understood to apply only to the federal government. States were free to violate most of these rights. One of Black’s primary projects on the Supreme Court — a project that was largely successful — was to make the entire Bill of Rights applicable to the states. And he justified this project on originalist grounds.
“I would follow what I believe was the original purpose of the Fourteenth Amendment,” Justice Black wrote in his dissenting opinion in Adamson v. California (1947). That “original purpose,” according to Black, was “to extend to all the people of the nation the complete protection of the Bill of Rights.”
For Black, preventing the Court from reading unwritten new rights into the Constitution, and ensuring that the rights explicitly laid out in the Bill of Rights were robustly enforced, were the same project. “To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution,” Black wrote in Adamson.
[…]
“A Court that makes rather than implements value choices” made by elected officials “cannot be squared with the presuppositions of a democratic society,” future judge and failed Supreme Court nominee Robert Bork wrote in an influential 1971 law review article.
For Bork, the liberal Warren Court — which moved the law significantly to the left during the 1950s and 1960s — had committed the same sin committed by conservatives in the Lochner era. It had substituted its own values for the will of the people.
The man who understands the issues and nevertheless insists upon the rightness of the Warren Court’s performance ought also, if he is candid, to admit that he is prepared to sacrifice democratic process to his own moral views. He claims for the Supreme Court an institutionalized role as perpetrator of limited coups d’etat.
As evidence for this dramatic claim, Bork cited the same case Justice Black railed against late in life: Griswold v. Connecticut.
The problem with Griswold, Bork wrote, is that the Constitution itself provides no guidance on when judges should apply a right to privacy. And “where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute.”
Bork, like Black, was calling for constraints on judges — and he wanted to find those constraints in the Constitution’s text.
[…]
Just as decisions like Lochner grounded a “freedom of contract” in the Constitution’s vaguely worded due process clause, Roe grounded a right to privacy in that same vague clause, and then determined that this right to privacy extends to abortion.
Like Bork, Scalia emphasized that the problem with decisions like Roe wasn’t that he disagreed with the policy judgment underlying them (although there’s little doubt that Scalia personally opposed abortion). Rather, Scalia presented himself as the defender of democracy. “Whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad,” Scalia said in a 2012 interview, “regardless of how you come out on that, my only point is the Constitution does not say anything about it.”
Rather, Scalia argued, the Constitution leaves questions about abortion “up to democratic choice.” The role of judges was to get out of the way of elected lawmakers.
[…]
Second-wave originalism developed as “a way of explaining what the Court had done wrong, and what it had done wrong in this context was primarily to strike down government actions in the name of individual rights.”
[…]
Men like Scalia and Bork came of age during an era when liberals dominated the judiciary, and they rose to power during a period of transition, when it was not yet clear that conservatives would gain total control of the Supreme Court.
So it makes sense that second-wave originalism would emphasize judicial restraint. Originalists writing in the 1970s and 1980s could not know if the Court would become more conservative in the coming decades, or if the Court would take another hard left turn. If they called for the judiciary to exercise too much power, second-wave originalists might have been very upset about how that power was used by future justices.
Someone like Justice Gorsuch, by contrast, did not rise to power during an age of uncertainty. Gorsuch graduated from law school the same year that Justice Thomas replaced liberal Justice Thurgood Marshall — cementing a conservative majority on the Supreme Court. And Gorsuch has spent his entire professional career watching the Court move rightward.
While Scalia experienced the pain of watching the Court hand down decisions like Roe v. Wade, Gorsuch’s generation of conservative lawyers didn’t need to fear that the conservative Rehnquist and Roberts Courts would implement a broad liberal policy agenda from the bench.Conservatives of Gorsuch’s generation were most often upset by the Supreme Court when it showed judicial restraint — such as when the Court upheld most of Obamacare.
[…]
Third-wave originalists, in other words, are far more likely to call for democratically enacted laws to be struck down than their counterparts in the 1970s and 1980s.
[…]
Thomas’s version of originalism, in other words, sees much of the past century of American law as illegitimate.
The common theme underlying all three waves is that originalism is a reactionary doctrine. I mean this not in the pejorative sense of the word “reactionary,” but rather in the literal sense that originalism thrives in reaction to legal developments that particular originalists find objectionable. Originalists can be liberal (like Black), conservative (like Scalia), or something approaching nihilistic (like Thomas). But all three waves of originalism share a desire to wipe away something that came before.
Courts typically operate according to a principle known as “stare decisis” — Latin for “to stand by things decided.” It is typically not viewed as legitimate for a judge to simply declare “I will not follow this earlier decision because I disagree with it.” A judge who wants to overrule a prior precedent must offer a compelling justification for doing so.
But originalism proposes an alternative source of judicial legitimacy. Rather than being fenced in by their predecessors’ decisions, an originalist justice who overrules a longstanding precedent can claim the legitimacy that flows from the Constitution’s text and its early history.
[…]
In his 1999 book Constitutional Interpretation, Whittington, the Princeton professor, drew a distinction between constitutional “interpretation,” which he defined as the “process of discovering the meaning of the constitutional text,” and constitutional “construction,” which “cannot claim to merely discover a preexisting, if deeply hidden, meaning within the founding document.”
Many originalist scholars concede that at least some parts of the Constitution are trapped in the “construction zone,” meaning that there is no way to pin down a single interpretive meaning of these provisions using the originalist tool chest. So judges will have to rely on something else when asked to construe constitutional provisions with uncertain meanings.
There are many possible ways to decide cases that fall within the construction zone. As Whittington told me in an email, some scholars “argue that the courts ought to adopt default rules that effectively dictate how such matters ought to be resolved, such as ‘when in doubt, defer to the legislature.’” Other originalist scholars, Whittington adds, “argue that judges operating within the construction zone should be making use of the same kinds of jurisprudential tools that non-originalist judges would routinely endorse and use, like arguments based on precedent, constitutional structure, constitutional traditions, etc.”
But the mere fact that a debate exists among originalists about how judges should approach constitutional provisions with indeterminate meaning suggests that judges will have to exercise at least some individual discretion — they have to choose which method they will use to make sense of the Constitution when originalism fails to supply a clear answer.
And the difference between a judge who defers to elected lawmakers in all cases where the Constitution’s meaning is uncertain, and someone like Justice Thomas who appears eager to tear up much of the past century of American constitutional law, is profound.
There is good reason, moreover, to believe that much of the Constitution’s meaning cannot easily be pinned down. The framers themselves had bitter arguments about the document’s meaning, stretching at least as far back as Alexander Hamilton and Thomas Jefferson’s 1791 debate over the constitutionality of a national bank. Many central figures in the Constitution’s framing read it in ways that most modern scholars view as ridiculous — such as James Madison’s argument that the Constitution forbids the federal government from funding roads and canals.
If Madison could reach a conclusion that is so wildly out of step with the generally accepted understanding of the Constitution, how can we trust someone like Gorsuch or Barrett to discover the document’s one true meaning? Why would we even think that such a meaning exists?
[…]
It is inevitable that judges — even originalist judges — will disagree about the Constitution’s original meaning. As Barrett acknowledges in her 2017 essay on originalism and stare decisis, originalist judges will inevitably encounter past precedents that they believe to be wrongly decided. And yet, simply plowing over those decisions without regard to consequences would ignore “the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.”
In other words, an originalist justice must make value judgments. If they become convinced that the Constitution, as originally understood, does not permit child labor laws — or that paper money is unconstitutional, or that Brown v. Board of Education was wrongly decided — then they must make a personal choice about whether the potentially quite radical consequences of tearing away decades or even centuries of American law are worth the benefits of bringing the Court’s decisions more in line with originalism.
Click to Add the First »