Regarding originalism and the Supreme Court

An example of originalism: Abortion

The New Yorker writes:

This was a year that was split into before and after—the dividing line being when the Supreme Court overruled Roe v. Wade. Following the shocking leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, on May 2nd, we fully entered the era of conservative dominance, with aggressive rulings on abortion, guns, and religion. Doubts about the Court’s legitimacy reached a fever pitch, and its unpopularity hit alarming lows. Soul-searching about the Court and the rule of law has rarely been as cynical or as fundamental. Law professors asked one another, “What do we say to students now?,” with many questioning the distinction between law and politics, or even the Court’s final authority to interpret the Constitution—which the Court first claimed for itself about two hundred years ago. 

The Justices appeared to understand that they are presiding over a historic decline in public trust, as several of them have made public remarks insisting on the importance of the Court’s retaining its legitimacy. “Everybody in this country is free to disagree with our decisions,” Justice Samuel Alito, who wrote the Dobbs majority opinion, said. But he warned that someone “crosses an important line when they say that the Court is acting in a way that is illegitimate.”  

When the Court returned for its new term in the fall, the Justices dove into another set of blockbuster cases, on affirmative action, voting rights, and religious liberty. But cracks have emerged in the commitment to originalism that conservatives wielded last term to tie the meaning of the Constitution to “history and traditions” from periods when women couldn’t vote and segregation was the law. Liberal Justices made us wonder whether we’re all supposed to be originalists now—or strategically pretend to be. Take, for example, this term’s debates about the meaning of the Fourteenth Amendment. In a case asking whether Alabama created enough majority-Black electoral districts to comply with the Voting Rights Act, and whether the use of race in districting violates the Fourteenth Amendment, Justice Ketanji Brown Jackson refused to cede originalism to conservatives, instead describing it as “our normal assessment of the Constitution.” 

Professing to have “drilled down” and looked at “the history and traditions of the Constitution, at what the Framers thought about,” Jackson, in one of her first hearings as a Justice, lectured counsel extensively on how the original meaning of equal protection was not race-neutral, since “the Framers themselves adopted the equal-protection clause . . . in a race-conscious way.” (Jackson explained that “the entire point of the amendment was to secure rights of the freed former slaves”—which is clearly correct but likely to be ignored by conservative originalists.)

Thought 1: Two thoughts come to mind here. One is that it feels like Sam Alito is making a direct threat against anyone who asserts that the court is acting in ways that are illegitimate. That is fascism, plain and simple. And for the record, the Supreme Court is acting in ways that are illegitimate. Come get me Sammy boy, you blowhard fascist! 

Thought 2: The other though is more serious, at least for now, i.e., until the hyper-radical Alito comes and hunts me down and starts blazing away with his AR-15. I think that Justice Brown Jackson and the Dems on the court make a deadly serious tactical and legal mistake by trying to fight for control of narratives about originalism, and how it applies to modern court cases. I’ve argued here multiple times that originalism is a modern day radical right mirage. There is no such thing as originalism. 

Why? Because until the ends of their lives, the people who drafted the Constitution and Bill of Rights were locked in bitter disputes about the nature and scope of government and how power was to be distributed. From what I have seen, credible scholars keep saying there can be no original intent because there was bitter, never-resolved fundamental disagreements. The core documents meant different things to different drafters and ratifiers. 

By conceding the existence of non-existent originalism, Brown Jackson and the Dems legitimize something that cannot rationally be legitimate. Originalism can be the means to overthrow democracy and kill government. That is what it was devised by radical right, government and civil liberties-hating legal scholars to do. Just look at the Dobbs decision that killed the federal right to an abortion. Most radical right commentators appear to hail Dobbs as a major victory for originalism, for example:

An Originalist Victory

The Supreme Court’s Dobbs ruling is a tremendous success for the constitutional theory around which conservatives rallied for nearly half a century.

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling.

Dobbs was built on a radical right judge-made “history and traditions” test. That test allowed radical right judges (mostly Alito) to cherry pick through history to arrive at the rationale they used to get rid of Roe and the federal abortion right. By arguing about originalism, the Dems play into the hands of the Christofascist judges. IMHO, that is a very big mistake.

A criticism of originalism and textualism

An NYT opinion piece opined in 2017:

Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

But Justice Scalia failed to realize that textualism is actually self-undermining. Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome for constitutional questions.

The meanings of many words and phrases in the Constitution are not at all obvious. Examples include “right,” “unreasonable,” “probable cause,” “due process,” “excessive,” “cruel and unusual” and “equal protection.” Even if we could find clear definitions of these terms in a dictionary, current or historical, applying these definitions to cases that the founders did not anticipate only expands the range of ambiguity (and therefore interpretive possibilities).

The founders would no doubt sympathize. Because they used flexible, open-ended language like “cruel and unusual” without explaining exactly what they meant, it seems clear that they were deliberately inviting future generations to interpret and reinterpret these words — the very opposite of what textualists and originalists propose.

The founders were not dummies; they knew that society would evolve in unforeseeable ways — morally, socially, politically, technologically — and that this inexorable evolution might well bring about unforeseeable applications of the same words. For example, instead of using the imprecise phrase “cruel and unusual” to lock in any particular punishment (like the death penalty), it stands to reason that they meant it to lock out whatever punishments future generations deemed unconscionable. So true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.

The ambiguity in the Constitution reflects the intent of the drafters to allow for moral, social, political and technological change to factor into how court cases. Nothing in the constitution says that constitutional interpretation requires originalism or textualism. 

An 2009 criticism of originalism

Law professor Mitchell Berman (U. Penn Law School) wrote this in a short criticism (the full 96 page review article is here):

Originalism is Bunk 

Contemporary originalists disagree about many things: which feature of the Constitution’s original character demands fidelity (framers’ intent, ratifiers’ understanding, or public meaning); why such fidelity is required; and whether this interpretive obligation binds judges alone or citizens, legislators, and executive officials too. But on one dimension of potential variability—the dimension of strength—originalists are mostly united: They believe that those who follow some aspect of a provision’s original character must give that original aspect priority over all other considerations (with a possible exception for continued adherence to non-originalist judicial precedents [note that deference to precedent has been blown to smithereens by the modern Christofascist Supreme Court]). That is, when the original meaning (or intent, etc.) is adequately discernible, the interpreter must follow it. This is the thesis that self-professed originalists maintain and that their critics (the non-originalists) deny.

Non-originalists have challenged this thesis on varied wholesale grounds, which include: that the target of the originalist search is undiscoverable or nonexistent [Germaine’s main argument]; that originalism is self-refuting because the framers intended that the Constitution not be interpreted in an originalist vein; and that originalism yields bad outcomes.

.... arguments are [in originalism’s defense] of two broad types—hard and soft. Originalism is “hard” when grounded on reasons that purport to render it (in some sense) inescapably true; it is “soft” when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism reflects some sort of conceptual truth or follows logically from premises the interlocutor already can be expected to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy and the rule of law. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.

Q: Is it unreasonable to argue, and I do argue it, that originalism is just one of a number of smoke screens that brass knuckles capitalist Christofascist federal judges to impose their radical Republican Party dogmas on American society?