Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been…
Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been anti-abortion, anti-regulation, pro-religion, and pro–gun rights.
The situation is extremely suspicious. Isn’t originalism supposed to be a neutral, objective method? So why aren’t there more originalist decisions supporting liberal causes? Either the originalist judges are intentionally using originalism as a smoke screen to justify their conservative opinions or they are just benighted victims of confirmation bias, where they only perceive evidence that backs up their preconceptions.
ORIGINALIST RESPONSE: Originalists point out their method doesn’t always result in conservative rulings. Scalia was very proud to have ruled that burning the American flag is protected by the First Amendment despite being repulsed by the action himself. (Ironically, if my First Amendment adviser Jud Campbell is right, the original First Amendment was much more constrained and would not protect flag burning.)
LIVING CONSTITUTIONALIST COUNTERPOINT: Yes, there are exceptions, but they are just that: exceptions. Statistically speaking, justices use originalism to justify overwhelmingly conservative opinions.
ORIGINALIST RESPONSE: Well, maybe it’s just a fact that the original meaning of the Constitution aligns better with the conservative vision of America.
OBJECTION 4
Originalism does not achieve its stated purpose, which is to restrain judges.
One of the purposes of originalism, at least at first, was to restrain judges. Conservatives were upset by the Warren court’s progressive rulings. Originalism was supposed to rein in activist judges. But the opposite has happened. Look at how much SCOTUS’s decisions are upending the lives of everyday Americans. Look at abortion access. With the Dobbs abortion opinion, SCOTUS overturned decades of established law and customs.
ORIGINALIST RESPONSE: Don’t blame SCOTUS, an originalist might say. The justices are simply trying to figure out what the Constitution really means. In fact, judicial restraint isn’t the true purpose of originalism. The true purpose is to uphold the fixed meaning of the Constitution. And if that meaning radically changes America’s direction, so be it.
What’s more, the court is not dictating national policy. It is leaving the issues—such as abortion—up to the voters in each of the states.
LIVING CONSTITUTIONALIST COUNTERPOINT: Saying that originalism leaves the issues up to voters is disingenuous. Republicans control the majority of state legislature seats in America, thanks to gerrymandering and other tactics. So sending issues to the states is not pure democracy. It is rigged toward conservative outcomes.
OBJECTION 5
The Supreme Court’s new emphasis on history and tradition is confusing, arbitrary—and not even originalist.
This objection is not referring to traditional originalism but is about Originalism 3.0, as some are calling it. This new version of originalism, which dominated SCOTUS’s 2022 term, doesn’t merely look at the original meaning of the Constitution. It also looks at what is “deeply rooted in this Nation’s history and tradition.”
For instance, in the Dobbs abortion decision, Justice Samuel Alito said that we need to look at the “history and tradition” of abortion laws in the United States. He referenced laws from the founding through the 1990s. Likewise, in the Bruen gun case, Justice Thomas arrived at his decision by looking at gun laws all the way from 1300s England through the early 1900s.
Critics on both the left and the right have said that this version of originalism isn’t even originalism. Harvard law professor Noah Feldman calls it “historicism.” As he argues in a Bloomberg article, “The would-be originalist majority betrayed originalism, turning instead to an analytic method . . . that is far from the mainstream of American jurisprudence.” Historicism makes judges into historians, a job they are unqualified to do. When judges cite the past, they cherry-pick the history that suits their politics.
Another objection is that history and tradition are not always a wise
guide to current problems. Sexism, antisemitism, and racism all have a long history and tradition.
What’s more, say critics, historicism has led to mass confusion. The lower courts are still trying to figure out the proper historical analogies to apply when ruling on gun laws. As one judge wrote, her job has turned into a “game of historical ‘Where’s Waldo.’ ” Is a spring-operated “trap gun” similar to an AR-15? What is the proper historical analogy for having a gun on a subway? As a New York Times article put it, “Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, [and] concealed carry restrictions on bowie knives and eighteenth-century daggers known as ‘Arkansas toothpicks.’ ”
ORIGINALIST RESPONSE: One response is to agree with the critics. Some originalists reject this new emphasis on history and tradition and consider it a betrayal of originalism. We should go back to focusing on the original meaning, they say.
The originalists who do embrace Originalism 3.0 say it’s necessary because it answers questions that original meaning can’t. You can’t base all your decisions on the circumstances in 1789 (or whenever an amendment was passed), because the meaning from that time is not always clear. It only becomes clear in subsequent laws.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
"Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly"
Yep. The entire point of such documents as the Constitution is to prevent rapid and radical change based on the current opinions of a small group of people, especially non-elected people. Don't like SCOTUS? Don't elect Trump / Biden / whomever. Don't like the Constitution? Go through the difficult process of amending it; it's been done.
When Scalia's court decided the Constitution didn't prevent flag burning I hated it, but they were right. And I loved that Scalia and those like him were willing to go against their instincts in order to do the right thing.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.
(Part 2 of 5)
OBJECTION 3
Originalism is just a smoke screen to justify conservative opinions.
This critique isn’t about the merits of originalism so much as how judges have applied it. The criticism goes like this: Why do judgments from originalist justices almost always support the conservative agenda? Recent rulings from SCOTUS have been anti-abortion, anti-regulation, pro-religion, and pro–gun rights.
The situation is extremely suspicious. Isn’t originalism supposed to be a neutral, objective method? So why aren’t there more originalist decisions supporting liberal causes? Either the originalist judges are intentionally using originalism as a smoke screen to justify their conservative opinions or they are just benighted victims of confirmation bias, where they only perceive evidence that backs up their preconceptions.
ORIGINALIST RESPONSE: Originalists point out their method doesn’t always result in conservative rulings. Scalia was very proud to have ruled that burning the American flag is protected by the First Amendment despite being repulsed by the action himself. (Ironically, if my First Amendment adviser Jud Campbell is right, the original First Amendment was much more constrained and would not protect flag burning.)
LIVING CONSTITUTIONALIST COUNTERPOINT: Yes, there are exceptions, but they are just that: exceptions. Statistically speaking, justices use originalism to justify overwhelmingly conservative opinions.
ORIGINALIST RESPONSE: Well, maybe it’s just a fact that the original meaning of the Constitution aligns better with the conservative vision of America.
OBJECTION 4
Originalism does not achieve its stated purpose, which is to restrain judges.
One of the purposes of originalism, at least at first, was to restrain judges. Conservatives were upset by the Warren court’s progressive rulings. Originalism was supposed to rein in activist judges. But the opposite has happened. Look at how much SCOTUS’s decisions are upending the lives of everyday Americans. Look at abortion access. With the Dobbs abortion opinion, SCOTUS overturned decades of established law and customs.
ORIGINALIST RESPONSE: Don’t blame SCOTUS, an originalist might say. The justices are simply trying to figure out what the Constitution really means. In fact, judicial restraint isn’t the true purpose of originalism. The true purpose is to uphold the fixed meaning of the Constitution. And if that meaning radically changes America’s direction, so be it.
What’s more, the court is not dictating national policy. It is leaving the issues—such as abortion—up to the voters in each of the states.
LIVING CONSTITUTIONALIST COUNTERPOINT: Saying that originalism leaves the issues up to voters is disingenuous. Republicans control the majority of state legislature seats in America, thanks to gerrymandering and other tactics. So sending issues to the states is not pure democracy. It is rigged toward conservative outcomes.
OBJECTION 5
The Supreme Court’s new emphasis on history and tradition is confusing, arbitrary—and not even originalist.
This objection is not referring to traditional originalism but is about Originalism 3.0, as some are calling it. This new version of originalism, which dominated SCOTUS’s 2022 term, doesn’t merely look at the original meaning of the Constitution. It also looks at what is “deeply rooted in this Nation’s history and tradition.”
For instance, in the Dobbs abortion decision, Justice Samuel Alito said that we need to look at the “history and tradition” of abortion laws in the United States. He referenced laws from the founding through the 1990s. Likewise, in the Bruen gun case, Justice Thomas arrived at his decision by looking at gun laws all the way from 1300s England through the early 1900s.
Critics on both the left and the right have said that this version of originalism isn’t even originalism. Harvard law professor Noah Feldman calls it “historicism.” As he argues in a Bloomberg article, “The would-be originalist majority betrayed originalism, turning instead to an analytic method . . . that is far from the mainstream of American jurisprudence.” Historicism makes judges into historians, a job they are unqualified to do. When judges cite the past, they cherry-pick the history that suits their politics.
Another objection is that history and tradition are not always a wise
guide to current problems. Sexism, antisemitism, and racism all have a long history and tradition.
What’s more, say critics, historicism has led to mass confusion. The lower courts are still trying to figure out the proper historical analogies to apply when ruling on gun laws. As one judge wrote, her job has turned into a “game of historical ‘Where’s Waldo.’ ” Is a spring-operated “trap gun” similar to an AR-15? What is the proper historical analogy for having a gun on a subway? As a New York Times article put it, “Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, [and] concealed carry restrictions on bowie knives and eighteenth-century daggers known as ‘Arkansas toothpicks.’ ”
ORIGINALIST RESPONSE: One response is to agree with the critics. Some originalists reject this new emphasis on history and tradition and consider it a betrayal of originalism. We should go back to focusing on the original meaning, they say.
The originalists who do embrace Originalism 3.0 say it’s necessary because it answers questions that original meaning can’t. You can’t base all your decisions on the circumstances in 1789 (or whenever an amendment was passed), because the meaning from that time is not always clear. It only becomes clear in subsequent laws.
Part 3 of 5 (actually I didn't need parts 4 and 5 because I was able to fit it into 3, so this is the final part.. thanks!)
SECTION 2.
Even if you don’t like originalism, you still have to grapple with its main critique of living constitutionalism. Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly.
There are a couple of ways progressives have responded. One strategy is to combine originalism and living constitutionalism. This tactic gives living constitutionalism an anchor in the text. The basic idea is that you look for the original meaning, but the original meaning at a higher level of generality. So you take a constitutional phrase such as “equal protection” and say it applies to all sorts of situations, such as gay marriage. I’m sure I’m missing nuances, but to me, this combined approach seems like it is just living constitutionalism by another name.
Another response is to stress living constitutionalism’s pluralism. If you are a Supreme Court justice, you should consider a whole bunch of factors when making a decision. Yes, take into account the text’s original meaning. But also consider the consequences to current society, how SCOTUS has ruled in the past, how it would affect the court’s reputation, and what the average American thinks.
The grab-bag approach doesn’t solve the problem completely. Unelected justices still have enormous power to decide our lives. And this pluralistic view won’t satisfy all—or even most—critics. But I like it because there is at least some balancing going on. A pluralistic method, I believe, would make the court less likely to go against the wishes of the majority of Americans.
Plus, it seems traditionally American to me. The Founders were big into balancing. They loved the balance of powers. They thought their health was all about the balancing of bodily humors. (They got the humors part wrong, but balancing, or homeostasis, is, in fact, important.)
I use a balance of factors when I make decisions in my daily life, a sort of board of advisers in my brain. What does logic say? What about my emotions? How will it affect me in the short term and long term? How will it impact my community? Am I setting a good example for my kids? What would my ancestors think? What will my descendants think?
Perhaps you’ve heard of the famous essay by Isaiah Berlin titled “The Hedgehog and the Fox.” It’s based on an ancient Greek idea about two types of thinkers. A hedgehog views the world through a single lens, whether that’s Marxism or Christianity. A fox views it through multiple lenses, combining approaches and strategies. The saying goes, “The fox knows many things, but the hedgehog knows one big thing.” Originalism is a hedgehog approach. The idea is to interpret the Constitution with a single lens: the original public meaning. I prefer the fox’s worldview. I believe flexible thinking leads to better solutions and a better life. Though I do find the parable paradoxical. The very idea of dividing the world into two distinct types of people? That’s a very hedgehog idea. The fox in me doesn’t like it.
"Namely, living constitutionalism gives too much power to a group of unelected justices to interpret the Constitution willy-nilly"
Yep. The entire point of such documents as the Constitution is to prevent rapid and radical change based on the current opinions of a small group of people, especially non-elected people. Don't like SCOTUS? Don't elect Trump / Biden / whomever. Don't like the Constitution? Go through the difficult process of amending it; it's been done.
When Scalia's court decided the Constitution didn't prevent flag burning I hated it, but they were right. And I loved that Scalia and those like him were willing to go against their instincts in order to do the right thing.
This entire piece is undermined by some clearly biased perspectives. The reason there are more conservative legislatures is because of "gerrymandering and other tactics"? Really? You're absolutely right. Every state's citizens sees San Francisco, Portland, Seattle, Detroit, and Chicago, and thinks to themselves, "THAT is EXACTLY how I want to live." This point also ignores the fact that gerrymandering is widespread in Democratic states as well, New York and Oregon being, statistically, two of the most gerrymandered states in the nation.
If you dig deeper into Berlin’s argument, and the fables that precede it (sometimes it’s a cat), it’s an argument for a principled approach to problem-solving and the hedgehog survives due to his simple and unified methodology while the fox faces a paralysis by analysis due to his plethora of disparate options… and dies.
Of course, this is America and, while the hedgehog disappeared from these shores long before Europeans arrived, the fox continues to thrive.
I would encourage you to listen to him. He is a joyful patriot who respects whatever party affiliation or view you hold. He also has a deeper insight into our founding documents than you think:
https://www.econtalk.org/living-with-the-constitution-with-a-j-jacobs/
https://constitutioncenter.org/news-debate/americas-town-hall-programs/living-constitutionally-insights-from-aj-jacobs-and-jeffrey-rosen
The fundamental point of conservatism toward the Constitution is: who gets to make changes to laws? Should it be the elected representatives of the people, whether laws passed by Congress & the President or amendments approved by Congress and state legislatures, or should it be unelected judges/justices? Liberals want judges and experts to apply their superior intellect to solving society's problems, regardless of the boundaries set by the Constitution (or laws; see Chevron deference, now thankfully eliminated); conservatives believe that legitimacy derives from the constitutional framework and political decisions within it. Process matters, not just the end result. If the law as written gives a bad result, it's the job of our elected representatives to change it, rather than let judges or agencies act as unaccountable, "benevolent" dictators. As Sarah Isgur puts it on the podcast Advisory Opinions, "Congress, do your job!"
By the way, it is emphatically the duty of the Supreme Court to "go against the wishes of the majority of Americans" when that majority wants to flout the Constitution. Whether it is protecting black schoolchildren in 1950s Little Rock, a Jehovah's Witness who doesn't want to say the Pledge of Allegiance, or a crisis pregnancy center in California that doesn't want to have to advertise where to go for abortions, the Constitution protects the minority from an overbearing government that has majority support, while still leaving ordinary matters of government to majority rule.