The Perils of “Originalism”

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“[I]f our Constitution embalms inflexibly the habits of 1789 there may be something in [the litigant’s] point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. . . . [W]e interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for a living people.” — Judge Learned Hand, Reiss v. National Quotation Bureau, 276 F. 717, 719 (1921). [Many law professors revere Learned Hand as one of the wisest judges ever not to ascend to the Supreme Court.]

Like most modern Supreme-Court nominees, Judge Amy Coney Barrett is expert at ducking questions on how she might rule. She even ducked a question about climate change, saying it’s “politically controversial.”

Note that qualifier, “politically.” That’s an expert hedge from an expert in dodging.

Without that qualifier Judge Barrett would have been telling a bald lie. To a constitutional scholar, which she purports to be, it would have been a super lie. Why? The largest supermajority in our Constitution is three-quarters—the fraction of states that must ratify a constitutional amendment. But the consensus among scientists that global warming is real and caused by burning fossil fuels is much bigger. As our own NASA summarizes online, that consensus exceeds 97%.

So there’s no “controversy” among scientists. They invented the terms climate change and global warming to summarize the consensus among literally thousands of separate scientific studies. The only “controversy” arises from the vested monetary interests of Big Fossil and its owners and users. In refusing to answer a question directly, while self-evidently relying on those vested interests to generate “controversy,” Judge Barrett was in fact giving us all a strong hint of her personal predilections.

But that’s not what scares me most about her. It’s her absolute commitment to “originalism” as the way to apply our Constitution. What does “originalism” mean? It means interpreting our Constitution according to our Founders’ “original intent.”

Even in the abstract, there are enormous problems with this conception. They run the gamut from epistemological, through logical and moral, to practical.

First and foremost, how can we possibly “know” our Founders’ intent? All the things that make our lives infinitely easier, richer, safer and more secure than theirs did not exist in 1791, when they ratified our Constitution. They include the obvious, like cars, airplanes, trains, computers, radios, television, and the Internet. But they also include the less obvious necessities of public health, including antibiotics, flush toilets, running water and (in the US) modern sewer systems. The very first vaccination took place in England in 1796, five years after our Constitution became our Supreme Law.

Then there are the things that threaten our lives and safety, such as nuclear weapons, chemical and biological weapons, automatic and semi-automatic firearms, and accidents involving cars, trucks, planes, trains and modern industrial machinery, including Amazon’s warehouse robots. Today we are suffering a global pandemic which could not have occurred without the speed and ubiquity of planes, cars, trains, etc.

How can we “know” what our Founders “intended” about these things? None of them existed in their times. For some—including nuclear weapons, radio, television, automatic weapons and the Internet—their very conception lay centuries ahead.

The honest answer is that we can’t know what our Founders thought about them because they didn’t think and couldn’t have thought about them. They simply didn’t exist.

“Originalists” say it’s enough to know the Founders’ values, i.e., their morality, from their writings inside and outside the Constitution. But here originalists are being inconsistent with the rules of their profession.

Context is everything in the law. By explicit constitutional command, judges don’t make law in the abstract, i.e., legislate. They decide “Cases and Controversies.” That means they “rule” only against a background of specific facts and circumstances established at great length in a trial.

That’s why, as Barrett repeatedly ducks questions, she refers to all the facts and evidence that she would have at hand as a Justice, after reading records of the trial below and decisions of lower appellate courts. So how can we “know” how our Founders would have thought about all these things in the absence of any possible directly relevant facts?

That’s the epistemological rap against “originalism.” But it gets worse. Our Founders lived at a time when breech-loading a musket or pistol took the better part of a minute. What would they think about then-unimaginable automatic weapons that can kill dozens of people in that same short time? How can we possibly know now?

A modern soldier in a kevlar vest and helmet, bearing a modern automatic weapon with a high-capacity magazine, could have slaughtered a whole platoon of our Founders’ “irregulars” in the time it took them to load and fire a second round. Would the Founders have written the Second Amendment the same way if they knew what was coming over two centuries later? How can anyone even ask that question with a straight face, unless they believe in seances or otherwise communicating with the dead?

Here we transition to the logical and moral. Yes, our Founders enshrined important values in our Constitution. But they didn’t tell us how to balance them when they conflict.

Our First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” But our Fourteenth Amendment, adopted after our bloodiest war, says that “No State shall . . . . deny to any person within its jurisdiction the equal protection of the laws.” This is a straightforward nondiscrimination principle. Note that it applies to “any person,” not just citizens, apparently regardless of gender, race, ethnicity, national origin or sexual preference/identity.

How do we reconcile these two seemingly unambiguous commands when a state official claims her religion requires her to discriminate, for example, against homosexuals who want to marry?

If we go by common rules of statutory construction, nondiscrimination would trump free exercise. Why? The Fourteenth Amendment was adopted later, i.e., more recently. It also helped resolve the bloodiest war in our entire history—and the biggest war ever fought predominantly on our own territory—so it ought to have extraordinary force.

Perhaps these simple rules should not apply to a conflict of values so fraught with social, political and religious discord. But then what? Do we really want to probe the “intent” of our long-dead Founders, in whose time same-sex marriage lay as far in the future, even in concept, as nuclear and automatic weapons, gene sequencing and kevlar vests?

“Originalists” claim that searching for “original intent,” however elusive its expression may be, is better than judges applying their own personal policy preferences. Maybe.

But that’s a false dichotomy. There’s a better third way. How about simply considering cause and effect, and whether the likely effects of a decision are, on balance, more positive or negative?

Again, take letting homosexuals marry. Letting them marry may affront others’ religious beliefs. But that’s a purely abstract, mental harm. It’s largely in the eyes of the beholders. Same-sex marriages don’t directly affect anyone else’s lifestyle, income, welfare or health. Others can still believe that homosexuality is voluntary and immoral. They can still think, speak and preach that way. They can still run their families that way, even disowning homosexual progeny. So direct “harm” to them, if any, is all in their minds.

On the other hand, allowing same-sex marriage has a number of positive benefits to the people directly involved. It leads to happier, more stable, loving relationships. It allows same-sex couples the same hospital visitation rights and the same rights to pass on their property after they die as everyone else who is married. It thus makes property disposition at death simpler and more efficient. In so doing, it relieves an entire class of people of unnecessary anxiety and worry. It signals their acceptance as people by their government and their communities. And it eliminates the cost, delay and expense of a lot of otherwise unnecessary lawsuits over inheritances.

Another practical benefit of same-sex marriage relates to the population bomb. At a time when an exploding global population threatens not just our environment, but (through global warming) our entire civilization, same-sex marriage doesn’t usually create more children and thus more mouths to feed. Instead, it absorbs otherwise unwanted children, through adoption by stable, two-parent, same-sex couples. (It’s always puzzled me that much the same people who abhor abortion also abhor same-sex marriage. Doesn’t adoption by happily married same-sex couples solve at least some of the problem of unwanted children without aborting them?)

We can decide which of two conflicting constitutional values prevails by projecting cause and effect intelligently. Of course that method is not infallible; nothing in human reasoning is. But it deals with real life in the here and now, and in the likely future, not back in the eighteenth century. Our alternative is to scour the historical records for scraps of Founders’ letters and excerpts torn from the Federalist Papers that push one way or the other, thereby trying to squeeze modern thoughts about then-non-existent realities into long-dead Founders’ heads.

Which method is more practical? Which is likely to lead to greater collective happiness, John Start Mill’s “greatest good for the greatest number”? Which method gives judges more ways to hide their own personal policy preferences? You decide.

For me, the essence of “originalism” is complete faith in Scripture. It’s the notion that what “Special People”—in this case our Founders—said or wrote long ago is the last word, and all else must follow from the surviving traces of their long-dead minds. It’s the odd notion that “serious thinking stopped there.” It applies the same methods to our most fundamental law that fundamentalist Christians apply to the Bible, or the Taliban to the Q’uran. It looks backward to a dead scene held in stasis in the vain hope of avoiding the most salient reality of human life: constant change.

Of course the Constitution’s words matter. When they alone are decisive, there can be no argument. But cases don’t reach the Supreme Court if the Constitution’s text is clear and decisive. When they do, there is usually a conflict between fundamental constitutional values, like the freedom of religion and nondiscrimination in our example above. When that happens, the most honest and effective way to balance the values is to assess cause and effect for each alternative against the specific background of facts in the case or controversy before the Court.

When King Solomon raised his sword to split the baby, he wasn’t looking backward toward Scripture. He was looking forward to the baby’s life. He had conceived a neat psychological trick to determine who the real mother was, after concluding that the baby would be happiest in her family. Even today, our family courts honor that sort of practical reasoning in assessing “the best interests of the child.”

That’s the kind of wise practicality we should expect from those who sit on our Supreme Court. “Originalists” won’t produce it. Instead, they’ll pass the buck to long-dead Founders and an earlier age, reserving every chance to hide their own conscious and unconscious biases among the minutiae of history. The best you can say about that approach is that it will provide full employment for judicial clerks whose forte is historical research, rather than practical cause and effect and the needs of real people.

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