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Originalism is bunk. Liberal lawyers shouldn't fall for it. by Ruth Marcus in the Washington Post
Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap. Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.
But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one...
Originalism is the “no new taxes” of constitutional theory, as easy to understand as it is insipid; there is no similar progressive alternative that can be reduced to a bumper-sticker slogan...
...originalism trends almost inexorably right. As Justice William J. Brennan Jr. explained in a 1985 speech responding to Meese, originalism “in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right.” Which is precisely why it was taken up by Meese and company. “They embraced originalism because it was conservative,” said Michael Waldman, president and chief executive of the Brennan Center for Justice and author of a forthcoming book on the court. “They didn’t embrace conservatism because it was originalist.”
The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.
Did the framers of the Constitution or its amendments intend for its meaning to be fixed at that point in time, as they understood it? They certainly didn’t say so. Even more important, they intentionally used broad language that they understood would be interpreted for years to come.“We must never forget that it is a Constitution we are expounding … a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs,” Chief Justice John Marshall wrote in 1819 in McCulloch v. Maryland, upholding the establishment of a national bank even though that was not among the express powers the Constitution granted to Congress.
When Scalia described himself as a “fainthearted originalist,” he noted that “in its undiluted form, at least, it is medicine that seems too strong to swallow.” As an example, Scalia cited punishments such as public flogging or branding, which might have been tolerated during the Colonial period. “Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an Eighth Amendment challenge,” Scalia said.
Originalists have come up with arguments to justify the results in Brown, Loving and even Obergefell v. Hodges, declaring a constitutional right to same-sex marriage. But it takes no small bit of originalist contortionism to get there. As much as that might make originalists feel better, perhaps a doctrine that requires so much work to arrive at an acceptable result has inherent problems.
Originalism as convenience.. This defect has two aspects: First, the demonstrated willingness of the originalist justices to pick and choose the historical practices and traditions that best support the result they want, narrowing or expanding the relevant period as is most helpful to their cause; second, their tendency to abandon originalist arguments entirely when they turn out to be inconvenient.
The danger of originalism, as Berman wrote years ago, is that it is used “to bolster the popular fable that adjudication can be practiced in something close to an objective and mechanical fashion.” The difference between originalists and non-originalists is that the former pretend otherwise; most likely, they have convinced themselves of it. But conviction, however sincere, does not make a flawed approach legitimate. And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome.
This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.
Originalism is the “no new taxes” of constitutional theory, as easy to understand as it is insipid; there is no similar progressive alternative that can be reduced to a bumper-sticker slogan...
...originalism trends almost inexorably right. As Justice William J. Brennan Jr. explained in a 1985 speech responding to Meese, originalism “in effect establishes a presumption of resolving textual ambiguities against the claim of constitutional right.” Which is precisely why it was taken up by Meese and company. “They embraced originalism because it was conservative,” said Michael Waldman, president and chief executive of the Brennan Center for Justice and author of a forthcoming book on the court. “They didn’t embrace conservatism because it was originalist.”
The shifting forms of originalism — from trying to discern the intent of the document’s framers, or maybe those who ratified it, to hunting for the original meaning of the words they used — suggests the fundamental futility of the enterprise. “For most constitutional provisions, there is no ‘original meaning’ to be discovered,” Berkeley law dean Erwin Chemerinsky writes in a new book, “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Rather, he says, “there is a range of possibilities that allows for exactly the kind of judicial discretion that originalism seeks to eliminate.” The founding-era documents are incomplete and contradictory; there are many constitutional questions for which they supply no answer.
Did the framers of the Constitution or its amendments intend for its meaning to be fixed at that point in time, as they understood it? They certainly didn’t say so. Even more important, they intentionally used broad language that they understood would be interpreted for years to come.“We must never forget that it is a Constitution we are expounding … a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs,” Chief Justice John Marshall wrote in 1819 in McCulloch v. Maryland, upholding the establishment of a national bank even though that was not among the express powers the Constitution granted to Congress.
When Scalia described himself as a “fainthearted originalist,” he noted that “in its undiluted form, at least, it is medicine that seems too strong to swallow.” As an example, Scalia cited punishments such as public flogging or branding, which might have been tolerated during the Colonial period. “Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an Eighth Amendment challenge,” Scalia said.
Originalists have come up with arguments to justify the results in Brown, Loving and even Obergefell v. Hodges, declaring a constitutional right to same-sex marriage. But it takes no small bit of originalist contortionism to get there. As much as that might make originalists feel better, perhaps a doctrine that requires so much work to arrive at an acceptable result has inherent problems.
Originalism as convenience.. This defect has two aspects: First, the demonstrated willingness of the originalist justices to pick and choose the historical practices and traditions that best support the result they want, narrowing or expanding the relevant period as is most helpful to their cause; second, their tendency to abandon originalist arguments entirely when they turn out to be inconvenient.
The danger of originalism, as Berman wrote years ago, is that it is used “to bolster the popular fable that adjudication can be practiced in something close to an objective and mechanical fashion.” The difference between originalists and non-originalists is that the former pretend otherwise; most likely, they have convinced themselves of it. But conviction, however sincere, does not make a flawed approach legitimate. And the flaws embedded in originalism are magnified by its use, or misuse, by conservative justices and judges focused on a desired outcome.
This brand of originalism isn’t just bunk — it’s rigged, dishonest bunk. The more forcefully liberal lawyers and justices push back on it — the faster they make their way out of the originalism trap — the better.
https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/
4 replies
= new reply since forum marked as read
= new reply since forum marked as read
When discussing the Constitution in a blog or chat room...
All things not specifically forbidden must be allowed, IF that supports your premise.
All things not specifically allowed must be forbidden, IF that supports your premise.
???
