Originalism

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v \- t \- e

“”'And only one for birthday presents, you know. There’s glory for you!'

'I don’t know what you mean by “glory,"' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

—Lewis Carroll's Through the Looking Glass[1]

Originalism (or strict constructionism) refers to a school of thought concerning the interpretation of law, especially constitutional law, by a judge or justice. The idea behind originalism is that a law must be interpreted from the viewpoints extant at the time of its inception and not those of the present day. In the case of US Constitution, the law should especially be interpreted through the viewpoints of the Founding Fathers (or Framers of the Constitution). The additional issues with US Constitutional law is that there is no agreed upon definition of who was a Founder, and what to interpret when Founders themselves disagreed upon the interpretation.[2]:17

Originalism is a type of legal formalism. Formalism is the belief that legal results are determinitive once facts are known and laws are applied, and that judicial rulings are essentially mechanical application of facts and law, and should be lacking in subjectivity. Formalism was the dominant form of jurisprudence in 19th century America, but fell out of favor in the early 20th century when proponents of legal realism showed that all legal rules were value judgments.[2]:23-24,167-168

While not common in the rest of the Western world, originalism is popular with United States conservatives in general and conservative U.S. judges in particular. It is also the ideology of the Federalist Society, founded in 1982. Conservatives often push for judges to be nominated to positions where constitutional law cases will most likely be heard. Though Robert Bork was not the first originalist, he is considered to have written the foundational thesis on modern originalism in 1971.[3][2]:3-4 Edwin Meese, as Attorney General under Ronald Reagan gave a speech before the Federalist Society in 1985, arguing in favor of originalist, and took the concept from theory to practice.[2]:34

## Contents

* 1 Why originalism?
* 2 General flaws with originalism
* 3 Specific problems with originalism
* 3.1 First Amendment
* 3.2 Eighth Amendment
* 3.3 Ninth Amendment
* 3.4 Tenth Amendment
* 4 Criticism
* 4.1 The Biblical literalism of law
* 5 Hypocrisy
* 6 Prominent originalists
* 7 External links
* 8 References

## Why originalism?[edit]

Conservatives have grown fearful of conservative ideals losing their cultural place as a result of constitutional legal decisions that have been handed down due to modern interpretations of the constitution. An argument that has been put forth by originalists is that the judges and justices who made those decisions were activist judges (based on a 'living Constitution') and that originalism fosters judicial restraint, as Supreme Court Justice Antonin Scalia said, the Constitution is "dead, dead, dead".[2]:15 This argument can easily be shown to be false however, by the finding that originalist judges frequently abandon originalism when it does not give the result that they want.[2]:19-23 Defenses of originalism have relied on this fallacy (appeal to tradition) and others (argumentum ad dictionarium and circular reasoning).[2]:26-27 In defending originalism, Scalia frequently claimed that he had a theory of constitutional interpretation whereas non-originalists had no theory, thus at a minimum his theory was better than nothing, hence the title of Erwin Chemerinsky's book critiquing originalism (Worse Than Nothing: The Dangerous Fallacy of Originalism).[2]:34

“”The fact is that no principle of interpretation other than originalism has even the shadow of a chance attracting a general adherence. As a practical matter, there is no alternative to originalism but standardless judicial constitution-making.

—Scalia[4][5]

Scalia's argument that something is better than nothing is a corollary of the politician's fallacy:

P1: We must do something.

P2: This is something.

C: Therefore, we must do this.

The corollary:

P1: I have a theory (originalism).

P2: You don't have any theories.

C: Therefore, we must use my theory.

## General flaws with originalism[edit]

“”But originalism is as radical and as undesirable today as it was when Robert Bork proposed it in 1971. A Court truly committed to originalism would reject a panoply of rights that are considered constitutionally protected even though they appear nowhere in the document's text: the right to marry, the right to custody of one's children, the right to keep one's family together, the right to control the upbringing of one's children, the right to procreate, the right to purchase and use contraceptives, the right to an abortion, the right to engage in consensual sexual activity, and the right to refuse medical care. An originalist view of equal protection would provide no constitutional protection against discrimination based on sex or sexual orientation, or any limit on the ability of the federal government to discriminate.

—Erwin Chemerinsky[2]:10-11

Erwin Chemerinsky, Dean of the Berkeley Law School at the University of California at Berkeley, has described five general flaws with originalism:

1. Epistemology — It is likely not possible to know what or whether there was a consensus interpretation of a law by its drafters. Specifically it is known that Constitution drafters Alexander Hamilton and James Madison disagreed about the interpretation of important elements of the Constitution.[2]:44-74
2. Incoherence — It is likely that the Framers of the Constitution did not want their views to control the interpretation. This can be found in the Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") as well as other evidence. Although originalists frequently justify that their theory by claiming that it presents a neutral point of view, but that is not possible because of both the frequent conflicting points of views of the Founders and absence of points of view.[2]:75-91
3. Abhorrence — A strict originalist interpretation results in judicial rulings with abhorrent results. For example the Fourteenth Amendment mandated equal protection by the states of people but said nothing about the Federal Government, the a strict originalist interpretation would allow people to be treated unequally by the Federal Government. "Anyone defending the narrow historical approach… must also be prepared to defend the contemporary use of pillorying, branding, and cropping and nailing of the ears, all of which were practiced in this country during colonial times. — Justice William Brennan[2]:92-114

Originalist interpretation of the Constitution allows for segregation and racial discrimination. Originalism only allows for equal protection of racial minorities. And under originalism, the First Amendment allows for prohibiting blasphemy and seditious libel (false criticism of government).[2]:93
Several originalists (and by extension the Federalist Society) have tried to bend originalism to defend the landmark school desegregation decision of Brown v. Board of Education, but wind up cherry picking, contorting originalism, or making non-originalist claims.[2]:97-100 These convoluted attempts at creating an originalist defense of Brown v. Board of Education were necessary in part because the court's unanimous decision was based on an anti-originalist explanation.[2]:97[6]
A response that originalists give to getting abhorrent results from originalist interpretations, that citizens have the ability to amend the Constitution. While this is so, it is extraordinarily difficult to do so: the Constitution has only been amended 17 times since the 1791 Bill of Rights out of 11,000 proposed amendment.[2]:111-112[7] Furthermore doing so creates another abhorrent result, that the rights of minorities are dependent upon the assent of a supermajority (requiring ⅔ vote of the Senate, ⅔ vote of the House of Representatives, and ¾ of state legislatures or conventions),[7] something that is contrary to the concept of modern democracies (that minorities have rights regardless of the majority).[8]
4. Modernity — Modern society has technology, and concomitant legal problems, beyond what the Framers could have envisioned.[2]:115-138 "Well, I think what Justice Scalia wants to know is what James Madison thought about video games." — Justice Samuel Alito[9]:437
5. Hypocrisy — Self-proclaimed originalists in practice often abandon originalism when it does not given them the results that they want. This hypocrisy leads to a results-oriented court that cherry picks to get the desired results.[2]:139-165

Some originalists recognized the epistemological problem with originalism, and formed a schism known as "New Originalism" or "Originalism 2.0". The new originalists, led by Supreme Court Justice Antonin Scalia, changed originalism from meaning the "Doctrine of Original Intent" to the "Doctrine of Original Meaning". The most glaring problem with this change was that it now relies heavily on corpus linguistics that requires the use of large computerized text databases to determine the meanings of words at the time that laws and the Constitution were written, something that the Framers could neither have foreseen nor intended.[2]:17-18 New Originalism also led to the abandonment of the claim that originalism fostered judicial restraint.[2]:21

Other forms of originalism have also developed including "living originalism", which accepts looking at the original meaning but also looks at underlying principles.[10] Chemerinsky regards this type of originalism as no different that non-originalism.[2]:39-42

## Specific problems with originalism[edit]

### First Amendment[edit]

The First Amendment presents a real quandary for an originalist judge. The original interpretation, specifically, of the "free speech" is… particularly troublesome. Historically, at the time of the Bill of Rights' ratification, many states actively prohibited certain speech such as blasphemy and sedition. While the First Amendment did not apply to the states until its piecemeal expansion throughout the 20th century, state criminal prosecution of speech is problematic in the sense that originalism rests on the proposition that we have to get exactly into the heads of the Framers in order to understand what they produced.

Many of the states which prohibited the aforementioned types of speech also had provisions in their own state constitutions that protected freedom of speech. Thus, if the contemporary view at the time of the adoption of the Bill of Rights was that blasphemy, for example, was not speech, then judges today must not consider it as speech as envisioned by the First Amendment. Yay for liberty!

Moreover, around the time of the adoption of the Bill of Rights, there were also much broader traditions of press freedom as evidenced by writings of political leaders and the absence of prosecutions or civil actions for defamation in 18th century America.[11] Further, the Framers split on the issue of seditious libel (criticizing the government): some considered it protected to some point by the First Amendment, some did not, a dilemma evinced both by the opposition to the First Amendment by many of the Framers, and by the debate over the Alien & Sedition Acts of 1798. The issue was not definitely resolved until the 20th century, with the Holmesian revolution of First Amendment law. Oliver Wendell Holmes, Jr.' interpretation of the First Amendment, and the liberalizing of the amendment, is a doctrine almost completely of judicial invention, created more in recognizance of what have become American values than what were American values, although it is consistent with the views of free expression widely expressed in 18th century America. This, clearly, is a great dilemma: supplemented by the fact that the text of the First Amendment…

“”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...

... seems, textually, to compel a position more radical than most conservatives (and liberals) would take: absolute free speech[citation needed]. This conclusion is inescapable unless one admits that some texts — indeed, constitutional texts — require more nuanced analysis.

### Eighth Amendment[edit]

The Eighth Amendment prohibits excessive bail fines and cruel and unusual punishment. Originalists have taken this to mean that it is okay to execute criminals since the death penalty was widespread in the 18th century. However, several other forms of punishment were also widespread at that time, such as public flogging or placing criminals in the stocks. Today, such punishments are considered very cruel and are very unusual (instead, we opt for the option of depriving people of their freedom for extended periods of time).

### Ninth Amendment[edit]

The Ninth Amendment states in its entirety, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, the amendment states that people have unspecified rights that are not in the Constitution. The amendment as such specifically authorizes non-originalism in interpreting what rights might exist that are not specified in the Constitution.[2]:85 This is problematic for originalists who according to Chemerinsky might take two responses to this:[2]:85

1. That legislatures should create laws to define such rights. Problematically for originalists, this is contrary to the common beliefs at the time of the drafting of the Constitution that people at natural rights, which would be elaborated by the judiciary.
2. That originalism is the only appropriate way to identify the unenumerated rights. This results in circular reasoning, that originalism should be used to enumerate non-originalist rights.

### Tenth Amendment[edit]

The Tenth Amendment reserves powers not granted to the federal government to the states. Although it is incredibly rare for a law to be struck down on the basis of the Tenth today[12] originalists and strict constructionists will often declare just about anything not specifically mentioned in the Constitution to be unconstitutional. See states' rights and the Tenther movement.

## Criticism[edit]

“”…the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.

—Thurgood Marshall[13]

“”Seduced by the false belief that Originalism can be grounded in arguments about the bare concept of interpretation or about the nature or logical entailments of binding constitutionalism, democracy, or the rule of law, too many originalists contend that Originalism follows necessarily from premises that virtually all participants to the debate accept — such as that judges should engage in “interpretation” not “making-it-all-up” and that we do and should treat the Constitution as binding. In short, too much Originalism is hard. Preaching with the fundamentalist fervor of their frequent political allies, Originalists are far too prone to declaim that “original meaning textualism is the only method of interpreting the Constitution”; or that “originalist interpretivism is not simply one method of interpretation among many — it is the only method that is suited to discovering the actual meaning of the relevant text”; or that “only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy”; or that Originalism “supplies the one, true interpretive method” and that any other method is “absurd.” That such assertions are obnoxious would be more easily forgiven were they not, in addition, false.

—Mitchell N. Berman[14]

A significant problem with originalism, specifically relating to the US Constitution, is that a document written in the 18th century cannot perfectly relate to the United States of the 21st century, so interpretation will always be required. In modern times, many issues come up which simply have no analog from the 18th century, and thus we must seek to guide ourselves, rather than trying to ask how dead men's opinions on other matters might tell us what to do.

Interestingly, asking one of those dead men (were it possible) would likely result in a response along the lines of "We already told you what to do," and point to Article 5, which had been put into the Constitution to specifically address this problem, and would be used quite a bit during the lifetimes of those original authors. Unless, of course, they were too preoccupied exploring modern conveniences to answer our questions.[15]

Ironically, in order to determine the "original intent" of the documents that are actually law, originalist scholars must resort to analyzing and interpreting many contemporary documents and papers of the principals involved in the process.

Legal scholar John Ely, author of Democracy and Distrust,[16] believed that originalism involves a certain requirement of lying to oneself, in that originalists support the theory because of the belief that, if nothing else, it is at least objective, and limits judicial activism or departure from established law. However, Ely notes that, since there are multiple versions of "tradition" and "original intent", and indeed multiple interpretations of history, originalism is inherently incapable of being as objective as it promises.

Because original intent is often difficult-to-impossible to discern, and because originalists often abandon originalism in important cases, the theory of originalism is used to hide the actual intent of the judge.[2]:207

“”…originalism makes it too easy for people to find, in the law, the answers they are looking for; and originalism causes people to hide the ball, to avoid admitting, perhaps even to themselves, what is really affecting their decisions.

—David A. Strauss[17]

“”Tradition should not limit the meaning of the Constitution, but it is an important source that can inform decisions. For an originalist, nothing matters except what was thought when the provision was adopted. This limitation denies our ability to learn from all that has happened since, including from long-standing traditions of protecting rights and advancing equality, as well as from rethinking traditions that we should renounce.

—Erwin Chemerinsky[2]:173

### The Biblical literalism of law[edit]

See the main article on this topic: Biblical literalism

Originalism shares both superficial and deeper characteristics with Biblical literalism. The similarities have both attracted criticism from opponents of originalism, and supporters from Biblical literalists (particularly because originalism has often resulted in socially conservative rulings).[18] Both originalism and literalism require a literal reading of the source documents, the difference being that literalism regards the Bible as inherently true and good, whereas originalism regards the Constitution in terms of legal positivism[19] where the truth and goodness of the Constitution is irrelevant.[18]

## Hypocrisy[edit]

Don't expect to hear this drumbeat from an originalist on issues in which their positions run counter to the original intent of the Framers. For example, it has been historically understood that appointments to the Cabinet and judiciary are largely the president's prerogative, and the Senate's role, in confirming the president's nominations, is to weed out unqualified candidates. The practice of refusing to confirm nominees for not having the same political inclinations as the Senate's majority party is fairly clearly not the Framers' intent, but that doesn't stop Senate Republicans from leaving a host of positions unfilled even though they're the ones who typically bleat about "original intent".

## Prominent originalists[edit]

* Supreme Court Justice Amy Coney Barrett[2]:x
* Hugo Black, the liberal justice most responsible for the fact that state governments can no longer violate individuals’ freedom of speech, appointed by Franklin Roosevelt. Black expressed an originalist viewpoint, but did not claim as modern originalists do that the Constitution's meaning is limited to what the Framers intended.[2]:210
* Robert Bork
* Supreme Court Justice Neil Gorsuch[2]:x
* Former Supreme Court justice Antonin Scalia
* Supreme Court justice Clarence Thomas (ironic because originalism would have kept him a slave, or at least confined to inadequate and segregated education in Pin Point, Georgia; it would have also prevented him from marrying his second wife in most of the United States) are known for adhering to an originalist viewpoint.
* John Yoo, a University of California at Berkeley law professor[20] Yoo gave widely-disputed legal cover for the George W. Bush administration to commit torture on prisoners at Guantanamo Bay and elsewhere.[21]

## External links[edit]

* Erwin Chemerinsky on Originalism and the Supreme Court — The Dean of the University Law School speaks on the deeply-flawed concept of originalism.

## References[edit]

1. ↑ Through the Looking-Glass, and What Alice Found There by Lewis Carroll (1871) Macmillan.
2. ↑ 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24 2.25 2.26 2.27 Worse Than Nothing: The Dangerous Fallacy of Originalism by Erwin Chemerinsky (2023) Yale University Press. ISBN 0300273983.
3. ↑ Neutral Principles and Some First Amendment Problems by Robert H. Bork (1971) Indiana Law Journal 47(1):1-35.
4. ↑ Scalia Speaks Well: But Not About Originalism by Eric Segall (November 10, 2017) Dorf on Law.
5. ↑ "Originalism: The Lesser Evil" by Antonin Scalia (1988-1989) 57 U. Cinn. L. Rev. 849.
6. ↑ Brown v. Board of Education (1954) National Archives. "At best, they [i.e., the original intent of the Fourteenth Amendment] are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty."
7. ↑ 7.0 7.1 Amending the Constitution United States Senate.
8. ↑ Introduction: What Is Democracy? by Danielle Allen Democracy Web: Comparative Studies in Freedom.
9. ↑ Scalia: A Court of One by Bruce Allen Murphy (2015) Simon & Schuster. ISBN 0743296508.
10. ↑ Living Originalism by Jack M. Balkin (2014) Belknap Press. ISBN 0674416929.
11. ↑ Shear, Kenneth Unoriginal Misunderstanding (Libertary Ed. 2009)
12. ↑ The most recent one being Defense of Marriage Act (section 3).
13. ↑ The Bicentennial Speech by Thurgood Marshall (May 6, 1987) Thurgood Marshall.
14. ↑ Originalism is Bunk by Mitchell N. Berman (2009) New York University Law Review 84(1):1-96.
15. ↑ If The Founding Fathers Were Alive Today, They’d Be Too Fascinated By A Garbage Disposal To Do Anything by Charles Bowman (August 5, 2014) The Onion.
16. ↑ Democracy and Distrust: A Theory of Judicial Review by John Hart Ely (1980) Harvard University Press. Revised edition. ISBN 0674196376.
17. ↑ "Originalism and Precedent: Why Conservatives Shouldn't Be Originalists" by David A. Strauss (2008) 31 Harvard Journal of Law and Public Policy 969-976.
18. ↑ 18.0 18.1 Biblical Literalism and Constitutional Originalism by Peter J. Smith & Robert W. Tuttle (2011) Notre Dame Law Review 86:694-793.
19. ↑ Legal Positivism by Leslie Green & Thomas Adams (First published Fri Jan 3, 2003; substantive revision Tue Dec 17, 2019) Stanford Encyclopedia of Philosophy.
20. ↑ Saving Originalism by Robert J. Delahunty & John Yoo (2015) Michigan Law Review 113(6):1081-1113.
21. ↑ Memorandum for William J. Haynes IT, General Counsel of the Department of Defense, authored by John Yoo, Deputy Assistant Attorney General, Department of Justice, Office of Legal Counsel. (March 14, 2003) via American Civil Liberties Union.

U.S. Constitution articles on RationalWiki

v \- t \- e

Preamble • Articles: 1 \- 2 \- 3 \- 4 \- 5 \- 6 \- 7

Bill of Rights: I II III IV V VI VII VIII IX X \- Further amendments: XI XII XIII XIV XV XVI XVII XVIII XIX XX XXI XXII XXIII XXIV XXV XXVI XXVII

Pending: Congressional Apportionment \- Titles of Nobility \- Corwin \- Child Labor \- Disputed: Equal Rights \- Failed: \- D.C. Voting Rights

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Interpretation: Originalism \- Textualism \- Responsive interpretation • Modes of review: Rational basis \- Intermediate scrutiny \- Strict scrutiny
Other stuff: Articles of Confederation \- Establishment Clause \- Gun control