What Is Originalism?
Originalism is a theory of judicial interpretation arguing that courts should interpret laws based on some sort of “originalness.” It’ll make more sense with a quick explanation of the two major camps of Originalism, “Original Intent” and “Original Understanding.”
Original Intent
Original Intent is the theory that courts should interpret law according to what the writers and framers of the law intended the law to mean. Critics of originalism typically try to characterize or explain all originalism in terms of this branch since it is the weaker view. Only a minority of originalists espouse this view due to the difficulty of identifying the original intent of the framers, as well as the weaker theoretical underpinnings of this interpretation.
Original Understanding
Original Understanding is the theory that courts should interpret law according to what the general public would have understood the law to mean at the time it was enacted. This is the more commonly espoused view of originalists. Though it can sometimes still be difficult to identify what the original understanding would be, it’s certainly more possible than articulating the original intent of the writer.
Original Understanding also has stronger theory behind it in that it pushes power closer to the people instead of to the courts. It’s a way of trying to ensure that the people get the government that they think they’re signing up for. The people can only hold the legislatures accountable for their own basic understanding of the law, so if we want a society where the people can govern themselves as much as possible, we must base our interpretation on the public’s interpretation.
Why Original Understanding is Good
The short answer for why an “original understanding” approach is good is because all other approaches to law interpretation take power from the people and other branches of government and put it into the hands of a bunch of lawyers in courtrooms. Non-originalist theories call for judges to either judge based on their opinion of how society has changed since the law was written, or to willfully ignore prior law and simply try to create the society that the judge thinks is best.
Of course, our government will play an essential role in creating our preferred society, but the government should do so as directed by the people. The people have power to build society directly through public votes and referendums, as well as indirectly through legislatures that are frequently held accountable by their constituencies through elections.
By design, the judicial branch is kept fairly aloof from the people, which makes it hard for the people to counter anything that judges do. This gives the judicial branch a greater opportunity to abuse power than the other branches of government. If “power tends to corrupt and absolute power corrupts absolutely,” then we should be very cautious about letting the judicial branch gather more power to itself by using non-originalist modes of interpretation.
Democracy requires the people to make their government themselves, and non-originalist approaches to adjudicating rob the people of that opportunity.
Opposition to Originalism
Not everyone agrees with originalism. Here are some common arguments against originalism, and my best shot at their shortcomings.
It Won’t Stop the Politics
The first general category of opposition to originalism is that politics will continue in some way. Here’s a breakdown of the major arguments.
Originalism doesn’t always constrain judicial will
Sometimes people will take issue with the fact that originalism primarily provides a starting point to making a ruling rather than an ending point. Two judges using an originalist philosophy can arrive at different conclusions on the same case. This can leave an opening for judges to use originalism as a cover to insert their own will.
This sounds like a problem, but notice the issue with it: this argument complains that originalism doesn’t have a pre-determined end in mind. First, this claim is false: the “end” that originalism favors is that of adhering to the constitution and the will of the people being governed. Originalism’s “end” is one of greater democracy.
Second, the reason that people claim that originalism does not have an ending point is due to its lack of a political ending point. A truly originalist judge will make decisions independent of politics. This prevents parties from relying on judges to make rulings favorable to their ideology. Political parties don’t always like the results, but the desires of political parties should be irrelevant.
Finally, there aren’t other judicial frameworks that would constrain judicial will better. Even if originalism isn’t perfect, no one has come up with anything better.
Originalism won’t eliminate left-right splits or other politics in the courts
Since originalism doesn’t always have one incontestable result, judges with political interests could still arrive at politicized results. Biases will still be inherent in originalist judges, and originalism doesn’t do enough to reign these biases in.
This argument erroneously mixes true originalism with politicized legislation. True originalism presupposes that judges suspend their biases to come up with as accurate a result as possible. Thus, this argument is really getting at the idea that true originalism is hard, and judges cannot be perfect at it.
Even if judges aren’t perfect at it, honest attempts to provide originalist adjudication is a huge step forward. Originalist principles can tighten in some amount of politicized rulings, and it also provides a framework for the public and other judges by which they can evaluate the rulings. If judges knew they had to come up with honest, transparent, and coherent opinions based on evidence for the original understanding of the laws when they were enacted, we would have a better way of holding judges accountable. Right now, judges are simply evaluated by how well they fit the media’s political sway.
Finally, even if originalism doesn’t eliminate the left-right splits, what will? Certainly not the politicized approach that many judges use now. Originalism may not be a perfect solution to the politicization of the courts, but it’s the best solution we have right now.
Originalist judges often deviate from originalism principles when it suits them
Justice Scalia on the supreme court is one of the more vocal proponents of originalism in the courts. In spite of his public advocacy of originalism, some claim that Scalia has decided many cases on non-originalist principles, especially when they involve conservative politics. Therefore, originalism must just be a cloak for conservatism.
Whether or not Scalia always rules based on originalist principles is irrelevant. The problem with this idea is that it’s not an attack on the theory of originalism at all. This argument is an attack on specific judges rather than on the theory. It is entirely possible that some judges give lip-service to originalism while deciding on other principles, but that should be all the more reason to advocate true originalism in the courts. If both conservative and liberal judges are departing from originalist principles to make politicized decisions, then both sides could benefit from judges that adhere more strictly to originalism.
The Constitution is Not Enough
Although judges often make decisions in the name of the constitution, it’s no secret that judges stretch its meaning to fit political results. Since originalism limits how far judges can stretch, people sometimes argue that originalism is not adequate since the constitution isn’t adequate. Here’s some more detail:
Originalism is unknowable
There are two major arguments made of this form. One argues that it’s impossible to know what the framers of any piece of legislation were thinking when they wrote or ratified the law. This attacks the “original intent” form of originalism which most originalists don’t support. I fully agree that we can’t know the minds of the framers.
I wouldn’t have even included this argument if not for others who claim that we can’t even know the original understanding of legislation.
The argument essentially says that for many laws (especially the constitution) too much has changed to make any claims about the original understanding. The argument asserts that language, culture, technology, and global context have evolved so drastically that we can’t claim to comprehend a 200 year-old document.
If you follow this argument to its logical conclusion, then we must also conclude that the entire field of history is junk. If we can’t figure out what a 200 year-old document means–one with lots of annotations, commentary by contemporaries, and memoirs of the writers themselves–then all of our more-ancient claims must be garbage.
What does that imply? It implies that everything we know about Greek philosophy is bunk. Records from Mesopotamia are impossible. Ancient Egypt is just as much a mystery now as it was before any European had set foot in the country. Everything you know about history is wrong.
Keep in mind that other records from the era of the constitution must be just as or more impossible to understand than the constitution itself. Writings of George Washington? They must mean nothing more to most of us than Sanskrit. Benjamin Franklin’s writings? If I quoted it, you would think I was speaking Klingon.
Clearly, the claim that we can’t have any idea of what the constitution means is silly. There are certainly cases where constitutional meaning is fuzzy or unclear, but that doesn’t transform the entire document into a Lego set for the creation of judicial whims. When advocates of alternative interpretation theories claim that the law is incomprehensible they’re simply trying to create an excuse to try to write new law that is otherwise indefensible.
Now, what should judges do when the law isn’t clear? The answer is to usually do nothing. If the law truly can’t be interpreted, then there’s no law to work with. A judge’s job is not to create something out of nothing, but to correctly interpret a pre-existing something handed to them by the legislature.
No written constitution can cover everything, so judges should fill gaps
It’s laughable to think that the framers could have written laws anticipating the technological advents that we enjoy, nor the legal implications that come with them. However, the framers knew that things would change, so they set up a system that could adapt with the times. Judges can play a role in that system by being a fairly efficient way of filling in gaps.
Although gaps should be filled, they should be filled democratically, especially for major issues. The framers designed a way for the gaps to be filled through the legislative, and sometimes the executive branch, but not through the judiciary. The people should have more of a role in signing up for the laws they must adhere to rather than having it forced upon them from the top. Some gap filling is still necessary though, which gets at the bigger error of this argument.
The worst thing about this argument is its failure to identify an approach that judges should use to fill in the gaps. If judges want to fill in holes to the law, they can still use an originalist approach to fill in the gaps as the law fits. This argument hides the fact that it implicitly admonishes judges to fill in gaps based on political ideologies that may or may not be supported by the populace.
Originalism does not prevent gap filling, it only provides a less politicized framework for doing so.
Hard issues are hard because the text itself isn’t clear
Issues make it to the courts (especially to the supreme court) when an obvious answer isn’t available from the text. If reading the text alone provided an irrefutable answer, then it wouldn’t go to courts and we wouldn’t need judges. Originalism relies heavily on the text and how people understood it in their time, so if an issue is in the courts, that probably means that an originalist viewpoint will not be easy to identify.
The problem with this argument is it amounts to little more than whining that “it’s too hard!” I readily confess that results-oriented approaches (such as ruling in favor of a liberal or conservative policy regardless of the law) are easier. However, we hire judges to handle the hard things and to do it in a way that is as objective, fair, and dispassionate as possible. Just because it’s hard doesn’t mean judges should shirk their duties and take an easy route.
Originalism may not provide an easy answer every time. What originalism does do is provide a method that, if followed, can be relied on to provide the most fair, and least political outcomes possible.
We Must Protect Liberty
People don’t like restrictions, so an appeal to the idea of liberty can sometimes persuade people against originalism. A closer look at these arguments reveals how originalism actually protects liberty better than the alternatives.
The purpose of the constitution is to protect liberty, so judges should rule according to whatever protects liberty most
The supreme court recently claimed to be protecting liberty in its ruling on same-sex marriage. The judges on the majority felt that a liberty had been denied for too long, and decided to protect that liberty by putting same-sex marriage into law. A purely originalist approach would likely have ruled otherwise (as the more originalist dissenting judges pointed out).
This argument has enough problems that I wrote last week’s blog post about it here.
One point I did not address much in that post is the idea of liberty from vs. liberty to. The constitution’s purpose is to protect the people, but the “liberties” it provides are liberties from government interference in our lives, not liberty to benefits or entitlements. The constitution stops the government from taking control of certain things. The constitution was not designed to hand out favors and preferences to certain groups of people. An originalist approach protects liberties just fine, but not the illegitimate ones.
Also, don’t forget that if the judicial branch takes more power, that does little to guarantee liberties in the long run. By definition, transferring power from the American people to a majority of 9 unelected officials is not liberty, especially since the justices would be free to make politicized, anti-liberty rulings with that kind of power.
In a sentence: giving the courts more power, or allowing them to make politicized decisions, does not protect true liberty, nor does it protect liberty in the way the constitution intended.
The framers wanted an active democracy, and originalism is the opposite
It is true that the framers designed the democracy to be flexible enough to handle changing situations and shifting popular opinion. Some opponents to originalism claim that limiting the judiciary’s ability to alter the legal situation hampers our vibrant, changing democracy.
The problem with this argument is that having judges write laws is not democracy. “Legislating from the bench” certainly means that judges are being an “active” part of the process, but it puts the country closer to having an active dictatorship than an active democracy. Having a small number of unrepresentative, unaccountable, and unelected elites decide the laws for the masses cannot be called a democracy, no matter how “active” it is.
The People Don’t Want Originalism
Sometimes, anti-originalists will point to things that people like that an originalism doctrine might destroy. These arguments aren’t any good either.
Sometimes an originalist approach would create a crisis
This issue came up fairly recently in the latest SCOTUS ruling on Obamacare in King v. Burwell (actual opinion text here). Put (overly) simply: at issue was the idea of whether “a state” means “a state” or “a state and also the federal government.” Sticking with the more obvious and originalist understanding that “a state” means a “state” would have sent parts of U.S. health insurance into chaos, left many people uninsured for a time, and imposed great costs on multiple government entities.
One problem with the above argument is that it tries to justify changing the rules to avoid enduring bad consequences of not following them. If that’s ok, then why have laws in the first place? If the states wanted the benefits, they should follow the laws.
There’s an argument to be made that the federal government, and not the states, made the mistake in King. However, even if that is the case, it is still not the court’s place to try to avoid a controversy. If a law is written poorly, the matter should be shifted to the legislature where parties accountable to the constituencies can figure out the best solution. There are legitimate reasons to decide to write the law in a myriad of different ways on this particular issue, but it’s not a judge’s place to do the writing. The legislating is to be done by the legislature.
Another problem in saying that judges should help us avoid crises comes from judges’ ability to avert crises like this. Judges are not trained in identifying and defusing crises, and will often have to make unsure predictions about the future to rule in a crisis averting fashion. Judges cannot be expected to handle unforeseen consequences as a result of their particular method of crisis aversion. For all of these reasons, judges cannot be expected to be any good at averting crises, and should not be the ones trying do it.
Beyond the unforeseen consequences from whatever judges do to avoid a crisis comes the foreseen consequences of having power consolidated to the judiciary. Every “pragmatic” decision the court makes to avoid a perceived crisis grants it more power and greater precedent to use in the future. We should not be giving courts leeway to create their own case law that allows them to make more and more decisions for us. We need to step it up and handle our own crises, or others will handle more and more of our lives for us.
The public likes big government, so reducing judicial power with originalist principles won’t hold
It’s no secret that people enjoy receiving benefits, from the government or otherwise (Obama phone, anyone?). Having a stronger judiciary helps protect a stronger government, especially when the supreme court affirms rights and powers of the federal government. Governments with more power have a greater ability to give and take at will, and if you’re on the receiving end of the giving, a big government can sound awesome.
If you tend to prefer giving up the ability to make your own decisions for the protection and dictation of a strong central government, I may not have anything for you. With this point I may have nothing more to say than that I value individual freedom more. I can find goodness is many different theories of where this country should go, but I’m most concerned that wherever we go, we decide it for ourselves.
Judges could have prevented Nazi Germany from going so crazy so fast
As Hitler consolidated power to himself, he did much of it legally. Judges did not overrule any of Hitlers power grabs because they took a somewhat originalist bend toward judicial interpretation. Thus, if judges had been less originalist, Nazi Germany could have been slowed down.
This argument is so hypothetical as to be fairly worthless. I mean, do you seriously think some judges were going to slow Hitler down? He had popular support, lethal power over his enemies, and a ruthless capacity to smash anything in his way. I have a hard time believing that an activist judge could have done a lot to slow the Nazi machine.
Also, the Nazi situation is one where judges aren’t really needed or relevant. There was enough popular support for the government to overcome any established barrier through legal processes. If a judge decided that something the Nazis were doing was “unconstitutional,” democratic processes (or other created constitutional processes) would be able to change the constitution. This argument tries to insert judges where they don’t fit in the first place. Originalism prevents changes being made before the people make the decisions for themselves, not after everyone gets on board.
Judges’ Pick
There are a couple other arguments that I call “judges’ picks.” These ones are favorites of some judges themselves, whether vocalized or not.
The Constitution means what the judges say it means
This idea stems from the fact that judges are given authority to interpret the constitution. As a result, whatever the judges say must be appropriate, regardless of whatever people originally thought. What better measure do we have of what a phrase means than what the judges say?
The problem is that interpretation is different from creation. When legislatures create a law, the law has its own inherent meaning as understood by the ratifiers. This is the only correct interpretation of the law, and it’s the judge’s job to discover and apply it. It is not the judge’s job to give law new meaning.
Many popular opinions were decidedly not originalist
When attacking originalism, critics probably cite Brown v. Board of Education more than any other supreme court case. This is the case that ended segregation in schools, overturned Plessy v. Ferguson, and paved the way for the end of segregation in general. The line of reasoning used in the ruling is far from originalist, so many anti-originalists point at it to contend that an originalist approach would leave us with segregated schools still today. Many other non-originalist but popular cases have been used to attack originalism as well.
The issues could be dealt with on a case-by-case basis, but some general principles weaken this argument. First, just because a non-originalist line of reasoning was used to create the popular outcome doesn’t mean that an originalist method wouldn’t have done the same. There are many cases that were decided with non-originalist reasoning in the opinion that could have easily used originalist reasoning instead.
When it comes to Brown, people are still fighting about whether originalism could come up with the same result. Michael McConnell and other proponents of originalism have written significant pieces explaining how originalism could have and should have been used in the Brown decision, including explanation on how an originalist approach would have provided more powerful attacks on Jim Crow laws than the rational given. Critics of originalists try to discredit these arguments, knowing that many people would have a hard time accepting a theory that decides against Brown. Although these debates are interesting, this fight shouldn’t matter in the evaluation of originalism as a good theory of interpretation.
Why shouldn’t this matter? First, theories of interpretation should create the results, not the other way around. When we eliminate interpretation theories based on pre-specified results, all we’ve done is create a different unspoken theory and use it to shoot down other ones. If the ruling in Brown must be right, then we’re not working off of universal interpretation principles, but on some predetermined set of values. You can’t accept the rightness of Brown as a premise when making a true theory.
Second, we don’t actually know that the world is a better place because the supreme court’s ruling in Brown. I think we would all admit that forced segregation in public schools is bad, but assuming that the supreme court made the world better presupposes an unknowable hypothetical. It’s almost certain that winning legal desegregation would have taken a bit longer and have been more challenging, but originalist opponents often go so far as to say that, if not for Brown, we would certainly still have segregation today. That’s not only probably false, but inherently unknowable. I’m not saying that things would be better without Brown, but that arguing either way requires making so many assumptions that we shouldn’t draw any conclusions from it.
If you want more details on this argument, some nice additional details are here.
Why have judges give up power? They know better than the people anyway
This may be the least publicized opposition to originalism, but it’s downright infectious in the actual courts.
It’s not difficult to imagine how a rational, even justice-seeking person could succumb to this idea. A judge will often be faced with a decision to enforce their own opinions about morality, justice, liberty, and inherent rights, against what the law actually provides. Judges are human beings and can be just as passionate as anyone about the well-being of women, homosexuals, the economy, ethnic minority groups, animals, children, religion, speech, and anything else. But our government is set up with the expectation that judges dam-up their floods of passion and coolly interpret the law as it is written, not as the judge believes it should have been written.
Why should the judge not rule according to his or her passion? Because a judge’s passion does not necessarily match the people’s passion, and the judge’s passion may be inherently wrong. Ultimately, the laws should be created by entities as close to the people themselves as possible. By design, judges are far from the people. They sit far from the people for the purpose of ensuring a more objective, dispassionate ruling on law, not to create laws that the populace might not be ok with.
Some of you may then be concerned about a “tyranny of the majority.” The U.S. has constitutional systems in place to combat majority tyranny, including constitutional limits on legislation, super-majority requirements for certain legal alterations, the Bill of Rights, and a separation of powers with checks and balances.
If you’ve benefited from judicial legislation, I can see how you may not be convinced that the other protections against a tyranny of the majority are enough and think that we need the judiciary to intervene. The problem with having judges intervene comes from the lack of accountability in the judiciary. You may be on the winning side in one case, but a simple flip in the political persuasion of the court can send major decisions against you and your interests. Enabling the judiciary to act as a bearer of rights and privileges may prevent a tyranny of the majority, but it will create a tyranny of the 9 (or just of the 5, since that’s all the Supreme Court needs for a majority).
Originalism For Democracy
The reason I want more originalism in the courts is because it seems to be the best available way to guarantee that the public stays in charge of itself. As the courts consolidate power to themselves, the people have less power to leverage on their own. Without a stricter adherence to the voice of the people, we will likely see ourselves further down an elitist system than we ever thought we would get to–all while thinking we were protecting the little guy.
As Robert Bork said in The Tempting of America, “Constitutional philosophies always have political results. They should never have political intentions.”
Keep seeing truth.
