Originalism—the preferred judicial “philosophy” of Supreme Court nominee Neil Gorsuch—is part nonsense, part common sense.
The nonsense part of originalism is the high-toned, academic penumbra of profundity that surrounds it. The common sense part is the necessity that underlies it—the necessity of legal interpretation.
Let’s take the common sense part first. In order for judges to do their job—which is (to remind the uneducated and the terminally cynical) to pass judgment on what is just and unjust—they must begin by interpreting laws. Any case that comes to court involved two parties at variance over the meaning of at least one law. Judges must interpret the relevant statutes, understand their just intentions, and apply those intentions to the controversy at hand.
Judicial interpretation, like all interpretation, runs through a spectrum from the exceedingly simple (“This is what the law says, and that’s precisely what it means) to the unimaginably complex (“We come to truly appreciate the law’s ambiguity only when we investigate both the contemporaneous case law involving the state’s interest in individual immorality and the various philosophical commitments of the legislators as demonstrated through their official pronouncements and personal correspondence”).
Originalism is nothing more than one interpretive strategy on the spectrum. Its distinguishing characteristic is that the work of interpretation is finished when it attains the intention of the original lawmakers. All that is then required of the judge is to apply that intention to the facts at hand. Of the many possible ways of interpreting legal texts, this one is remarkably stupid.
Setting aside all the difficulties of arriving at original intent, including the remarkable difficulty of expressing general rules (and that is what laws are) explicitly enough to be unambiguous, this method of interpretation grants lawmakers far more authority than they deserve. While any good interpretation of a historical law should involve some consideration of contemporary understandings of the law, no good interpretation can stop there.
Lawmakers can and do create legal abominations that appear to be duly enacted laws—statutes rammed through by political force or enacted in response to bribery and so forth. It cannot be that an originally unjust intent must determine a judge’s ruling about what is just. And lawmakers even more frequently create legal abominations out of incompetence. It cannot be that a judge’s ruling about what is just must be determined by the opinions of incompetents.
There is a reason for the old maxim lexinjustanon est lex—an unjust law is not a law. The reason is simply that lawmakers are not the best judges of what is just. Judges are (or ought to be) the best judges.
Originalism, taken literally, cuts the legs out from under the judiciary, reducing it to a mere technocratic extension of the legislature. It makes a mockery of the three independent governmental functions identified by Montesquieu, which were embodied in the American constitution. It gives supreme power to the legislators, whose intent—no matter how unintelligent or malevolent—cannot be countered.
Maybe that’s why so-called originalists do not take originalism seriously. They sloganeer with it (“Judges should apply the law, not make it”—as if those were the only two options.) They grandstand with it (as in the twisted quotation from Marbury v. Madison that forms one of the maxims of the Federalist Society, “It is emphatically the province and duty of the judiciary to say what the law is, not what it should be”—when it is actually the responsibility of judges not only to apply just laws but also to strike unjust laws, and thus indirectly say what the law should be.) But they mainly use it as an excuse to justify upholding unjust laws that preserve a status quo seen as beneficially to the wealthy and white.
In this regard—and here we come to the part of originalism that is nonsense—the penumbra of academic respectability that surrounds originalism is just another component in the conservative long con, just another dissembling posture designed to whitewash intense selfishness and antisocial egocentrism. Because of its ostensible moral neutrality and flamboyant pretense of impartiality (originalists make a show of not speculating about whether the original intent of a law is unjust and thus immoral, and they claim that their willingness to uphold unjust laws is evidence of their impartiality in that it sometimes pains them, they say, to do so) originalism is capable of sanctioning reprehensible laws. And that’s just what makes it so useful to conservatives who want excuses for maintaining any privilege to which they think they are entitled.
The primary example of reprehensible originalism existed long before the name came to be. It is Dred Scott v. Sandford, probably the most shameful piece of judicial malpractice yet produced in America. In trying to decide whether slaves had any standing as citizens under the Constitution, Chief Justice Taney lays down originalist doctrine as clearly as one could possibly wish:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. . . .
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
And what was this high-sounding duty in practice? To affirm the injustice of the Framers, adding the sanction of the judiciary to the other burdens borne by African-Americans in their long ordeal on this continent. (Note the sardonic irony in the words, “It is not the province of the court to decide upon the justice or injustice . . . of these laws.” That is precisely its province. Also note the pusillanimity of Taney’s conception of the “higher and graver trusts” confided to the judiciary by the Constitution, namely, slavish adherence to all the opinions of the original legislators rather than independent approval of their just opinions and condemnation of their unjust ones.)
What did Abraham Lincoln, the first Republican president, have to say about this abominable ruling? In his Speech on the Dred Scott Decision, Lincoln discussed the statement in the Declaration of Independence that “all men are created equal”:
I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that “all men are created equal” was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, nor for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.
One could hardly find a better expression of the belief that America’s founding documents were aspirational, prospective, and conceived with an eye toward being adapted to future circumstances. Lincoln’s understanding of the Constitution must have been quite close to “The Living Constitution” that Howard Lee McBain first named in 1927.
Taney’s use of “originalism” is a paradigm for its modern use. It is an excuse that papers over the desire to continue an injustice that benefits “conservatives” in their own estimation. Conversely, Lincoln’s belief in the prospective documents of our Founding is a paradigm for modern adherents to the notion of the “living constitution.” It is the perennial devotion to the ideal of justice for all—even, and probably especially, if that means repudiating manifestly unjust intentions of the original legislators.
None of these ideas are likely to appear at the confirmation hearing for Neil Gorsuch. Senators are not philosophers. Some of them are lawyers, but lawyers—like most highly trained specialists—are not well versed in the philosophical elements on which their specialties rest. If someone were to ask a question like “Doesn’t originalism actually make the judiciary entirely dependent on the legislature?” or “Isn’t it really the province of the judiciary to say emphatically what the law should be if it is faced with an unjust law?” I suspect you would see the glib and self-satisfied Gorsuch get a little tongue-tied as he tried to grapple with important issues that no one has ever asked him about. And it would serve him right. Because anyone who endorses judicial originalism either is not intelligent enough to see its inherent contradictions or is living a deception.
Neither type belongs on the Supreme Court.
