Understanding Originalism


When media pundits talk about or reference originalism, even those who might defend it, they are talking about the wrong originalism. What do I mean the wrong one? How many originalisms are there? Well depends on who you ask. First, let’s address the matter that both media sides have it wrong. For the most part, when pundits reference originalism they are talking about original intent originalism. Following this, and depending on which station you are watching, glib jokes often follow about judges relying on the original intentions of the framers. Indeed, this would be concerning if judges on the Supreme Court were to adhere to an interpretive principle that could be put on bracelets: what would the Framers do? While original intent originalism did enjoy significant usage, one would be wrong to say that this is originalism of today. Further, many of today’s originalists have argued that original intent is not sufficiently binding or constraining on the ideological whims of a judge.

Before I proceed, this article should not be taken as a defense of originalism. Rather, it is an attempt to clear the brush. I am defending, however, intellectual fairness and the principle of charity. If originalism is to be criticized, let’s make sure we are talking about the right one.

Today's originalism, practiced by the late Justice Scalia, Justice Neil Gorsuch, Justice Clarence Thomas, and ( not entirely clear) Brett Kavanaugh, is textual originalism. Originalism also has a number of supporters (and detractors) in academia (Lawrence Solum, Jack Balkin, and Akhil Amar just to name a few). Coincidentally, the judges named here happen to be conservative leaning while the academics named are classified as liberal or libertarian (2018). I point this out now so that readers understand that originalism is not inherently conservative. Rather, it can be said where one’s original analysis lands depends in part on the considered beliefs a judge or legal agent imports. But, there can be convergences between liberal and conservative originalists. For example, Solum notes that Article IV contains the phrase “domestic violence.” No originalist or non-originalist, he notes, would reasonably interpret the phrase to mean domestic violence as we know it today (a violent dispute between lovers or family members).

With all this being said, what is textual originalism? According to Solum, originalism is based on two principles. The first concerns meaning: meaning of the constitutional text (this extends to statutes as well) was fixed at the time each provision was framed and ratified[1]. To be clear, this does not mean that meaning is fixed to the particular intentions of the Framers or passers of each provision. Rather, given what is known about the time period and its people, the originalists asks: how would a reasonable interpreter of the time understand the text? Second, the originalist and their interpretation should be bound by that fixed meaning. Here, it should be understood that originalism is in part a reaction to what some conservative jurists perceived as unmitigated judicial behavior of progressive judges between 1930-1980[2]. At issue here is not necessarily that the interpretations were progressive, but that they were not so much interpretations as they were re-interpretations for instrumental causes. Further, Scalia notes that the biggest issue with living constitutionalism is that its adherents are not unified by any particular notion of justice or morality (1997).

A great deal of an originalist’s interpretation comes down to their adherence to what philosophers call the principle of charity. The principle of charity, broadly construed, entails that an interpreter when confronted with an instance of communication (whether textual or verbal) should assume that the communicating parties (another individual or assumed temporal body like interpreters of a particular time) are rational and therefore have rational beliefs. To illustrate this, take the case involving an ambulance driving through a public park to reach an emergency situation. The park is subject to particular ordinance stipulating that no vehicles are allowed to drive on park grounds. In light of the ambulance driver’s decision to drive on the park, the city decides to bring suit against the operators. At issue here, is whether the ambulance driver violated the ordinance by entering the park to save a person’s life. According to Scalia, an originalist should answer in the affirmative. After all, an ambulance satisfied the best definition we have of a vehicle. Second, using the principle of charity, if the lawmaker’s had wished to have emergency vehicles be exceptions to the ordinance, then they would indicated so. Thus, given the originalist’s commitments to not make law but only interpret statutes as they are and to the principle of charity, it follows that the ambulance driver should be judged as being in the wrong from a legal perspective.

Another aspect of originalism is that is not entirely concerned with remaining consistent with precedence. What ought to commit a judge to a previous decision is not some dogmatic adherence to precedent, but whether or not the decision aligned with the original meaning of the text. This allows the originalist judge to place past decisions under scrutiny by granting minimal weight on how long the decision has been in use or relied on by the public (i.e. Roe v. Wade). This in part, is comparable to deontological reasoning in that it ignores the social implications of overturning past decisions for the purpose of having the law and legal decisions consistent with set of preferred principles. While some consideration might be given to the consequences, they are ultimately irrelevant to the interpretation of the text.

What should be clear from the above illustration is that, for the originalist, the only perspective that matters in judicial decision-making is the legal perspective. Further, that the legal perspective is best defined by principles and rules that an originalist would adopt. This entails that concerns about consequences, moral coherency, or efficiency are irrelevant and outside the bounds of the legal perspective. Now, as I mention above, Scalia’s brand of originalism is not the only one offered on the market. This is to say, that depending on the sort of interpretive principles an originalist adopts, they may very have come out on the other side of this issue.

A common objection to originalism has been that often times it serves as a guise for conservative judges arriving at the interpretations that are consistent with their conservative political principles. And there might be some truth to this. After all, interpreting any form of communication involves determining which interpretation puts the agent in the most charitable (i.e. rational) light. But, this relies heavily on the interpreters own beliefs about rationality and political morality. The interpretive processes are guided by beliefs and not the other way around. In response to this objection, contemporary originalists do not deny the claim that the political and moral commitments of judges will serve as inputs. This does not entail, however, that originalism is wholly without restraint. How originalism is intended to restrain the political whims of judges is that it begins and ends with the text. In their deliberations, a judge must provide a reasonable argument as to why the text implies the particular decision they are promoting.

In response to originalism, there are a few questions to consider. Should judicial discretion be limited? That is, should we place constraints on the sort of deliberations or considerations judges are allowed to explore in their analysis of the facts? Further, originalism appears to not take the consequences of judicial decisions all that seriously. Or at least, not seriously enough. To what extent should judicial-decisions account for highly predictable consequences (social, economic, political, etc.)? Finally, while it seems reasonable to not apply contemporary meaning to terms like “domestic violence” as used in U.S. Constitution, it may me reasonable to do so for more malleable principles like “equal treatment” and or clauses like “Congress shall make no law respecting an establishment of religion.” In the case of the latter, what it means for a law to respect or remain neutral in the case of religion has been a matter of some debate. For instance, it is generally accepted that governments can fund certain initiatives put on by religious organizations, they just cannot prioritize or favor one establishment above others. Others might argue for a more absolutist approach and have it that such that no religious institution receive funding.

[1] Solum, Lawrence B., Surprising Originalism (May 8, 2018). CONLAWNOW, 2018. Available at SSRN: https://ssrn.com/abstract=3175412 or http://dx.doi.org/10.2139/ssrn.3175412

[2] This timeline is a bit inexact, but the idea here is that there was a point in time when judges were perceived as having free rein in interpreting or re-interpreting the Constitution for instrumental purposes. Originalism, of the textual sort, is thought to be a response to such a period.

[3] Scalia, A., Gutmann, Amy. (1997). A matter of interpretation : Federal courts and the law : An essay (The University Center for Human Values series). Princeton, N.J.: Princeton University Press.

[4] Balkin, J. (2011). Living originalism. Cambridge, Mass.: Harvard University Press.