We live in an age of nearly limitless access to information, where nearly anyone can find the accurate definition for esoteric systems of thought. And yet, for the last few days, a succession of reporters, actors, and even lawyers have used social media to spew ignorance about “originalism” in the context of jurisprudence. Almost as one, they have rushed to Twitter to hyperventilate about handmaidens and slavery, all of it nonsense.
Even presidential-election contenders who really should know better have gotten into the act. Not only does (Yale Law graduate!) Hillary Clinton echo the idiot chamber, she does so while comment-tweeting on Amy Coney Barrett’s clear explanation of originalism:
At the time the Constitution was ratified, women couldn't vote, much less be judges. https://t.co/B0oxTT2nzt
— Hillary Clinton (@HillaryClinton) October 14, 2020
Thank you, Captain Non-Sequitur, apparently the commanding officer of the Missing The Point Brigade. That would be a fine retort if originalism meant ignoring all of the amendments to the Constitution. Not only does originalism not mean that, it’s not even close to what it means. There is no school of thought in which only the original meaning of the non-amendment clauses to the Constitution are valid, which would be an impossible contradiction since Article V gives two different ways in which Congress and the states can amend the very document.
Christopher Scalia, son of Supreme Court giant Antonin Scalia, warned Wall Street Journal readers over the weekend to prepare for a blizzard of BS over originalism and textualism during the hearings. Not even Chris could have predicted just how wide this storm would be:
The dominant form of originalism entails interpreting provisions of the Constitution according to the “original public meaning” they bore when they were adopted. (Textualism is the same principle applied in statutory interpretation.) You wouldn’t know that from what journalists write about it. Linda Greenhouse, who covered the Supreme Court for decades and should know better, claimed that Justice Antonin Scalia (my father) believed “the only legitimate basis for interpreting the Constitution is the original intent of its framers.” Law professor Barbara McQuade recently wrote that originalists seek to understand what is “believed to be the original intent of the framers.” There are countless other examples of this conflation of intent with public meaning.
What’s the difference? For one thing, when seeking to understand the intent behind a law, a judge or lawyer may place greater weight on legislative history than on text. That method undermines the ideal that America is a nation of laws rather than men. As my father put it, “We are governed by laws, not by the intentions of legislators.” What’s more, scouring committee records and debates to determine intent “is more likely to confuse than clarify”; another judge compared this approach to entering a party and looking over the heads of the crowd to find your friends. That is one reason why originalists and textualists believe “we are bound by what [laws] say, not by the unexpressed intention of those who made them.”
Another common misrepresentation of originalism and textualism is conveyed in the Daniel Handler novel collection “A Series of Unfortunate Events.” During a trial scene in “The Penultimate Peril,” judges wear blindfolds out of a literal interpretation of the phrase “justice is blind.” This leads a wise infant who speaks in cryptic phrases to say simply, “Scalia”—meaning, the narrator explains, “something like, ‘It doesn’t seem like the literal interpretation makes any sense.’ ” Contrary to the jab, my father believed that “the good textualist is not a literalist.” That is why, for example, originalists recognize that the freedom of speech protects more than vocal utterances.
At this point, Chris must have a pang of regret … at crediting people with this much integrity. He has been on Twitter constantly all week calling people out for their ignorant and/or deliberately obtuse takes on originalism. At least his sense of humor is holding up well:
You like making yourself look foolish in front of women? Weird flex but okay.https://t.co/0CQVhTII3v
— Christopher J. Scalia (@cjscalia) October 13, 2020
Mine … not so much:
Utter nonsense. "Originalism" does not mean ignoring constitutional amendments. It means understanding the Constitution's words in their original context at the time of passage for ALL amendments, including 13th, 14th, 15th, 19th, and any that get ratified in the future. https://t.co/Zl2d1SAxW9
— Ed Morrissey (@EdMorrissey) October 13, 2020
Let’s make this very clear. “Originalism” does not refer to a yearning to live in 1788. It does not involve denial of any part of the Constitution. It applies to every last bit of it, from its core articles and Bill of Rights at its first ratification all the way to the 27th Amendment, which was finally added in 1992 — after spending 203 years in the ratification process.
Originalism means going by the meaning of the words as understood at the time of their original ratification, rather than by reinterpreting them in the “living document” manner which has been more or less the norm since Wickard v Filburn or even Woodrow Wilson’s presidency. That approach means that anything not addressed in the text of the Constitution either requires action by Congress or belongs to the states to handle. Either that, or those issues which arguably rise to a constitutional level would have to be addressed explicitly by amending the Constitution in the manner laid out in Article V — and the text of which would get interpreted by the context of its original meaning, rather than intentions or the passage of time.
Originalism is the philosophical predicate for judicial restraint/judicial modesty that respects the balance of powers in constitutional governance. If properly and consistently applied, it would reduce the tensions around the Supreme Court by forcing the states and Congress to quit using the courts as a legislative bypass, and put responsibility and accountability for governance where it belongs — on elected officials. That presumes that we have a culture that values truth and clarity, of course. This stupid tempest in an infinitesimal teapot shows that our media, cultural, and political elite have more interest in acting stupid — and acting as though you’re stupid, too. And that should anger everyone.