The Supreme Court and the Ongoing Debate About Originalism

Angelo Franco

 

The U.S. Supreme Court is now fully benched once again. The confirmation of two of its newest members, Amy Coney Barrett and Neil Gorsuch, spurred a renewed conversation around originalism. This is the legal doctrine that Justice Antonin Scalia professed and adhered to, and one that Justice Ruth Bader Ginsburg often repudiated.

 

In an ironic twist of fate fit for 2020 (and by twist of fate I mean a process perfectly orchestrated by the Republican-led Senate), Justice Scalia’s former mentee would go on to fill Bader Ginsburg’s newly vacated seat. During her confirmation hearing, Coney Barrett was asked to explain originalism, which is the principle that she would presumably use on the Supreme Court bench to make rulings. She explained:

 

“So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”

 

So far so good. In its most basic sense, originalism dictates that a judge must consider what the plain text of the Constitution says and apply it to rulings; and if the text of the Constitution is not explicit, then a judge must infer what its writers must have meant it to be by deducing the intent of the text for the public at the time it was written. This sounds like an elastic description full of deep hidden and philosophical meanings, but that really is what originalism is about in a nutshell.

 

 

Justice Scalia himself said that the Constitution, “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” In other words, any ruling that is not explicitly dictated by the words of the Constitution is simply “judicial lawmaking,” where a judge makes a ruling based on their own beliefs being applied to the law. Within these parameters, proponents of originalism argue, judges are limited to make rulings that are fully and explicitly based on the law of the land, even if they don’t necessarily like the decision they must make. And if the citizens no longer agree with a Constitutional law, the democratic process is thankfully already in place in which new laws can be enacted or old laws can be ratified by electing our political representatives to do so.

 

At its most straightforward then, originalism limits judicial power to a written text to avoid personal biases when handing down decisions. We don’t want an ultraconservative judge suddenly ruling that non-binary persons are not allowed to hold an passport unless they “choose” a gender, for example; just as we don’t necessarily want a very liberal judge willy-nilly deciding that paying rent is unconstitutional (or, rather, if we do want that it should be thoroughly thought out and fully debated, not a decision made on the fly). And importantly, originalism attempts to place the power to enact and ratify laws and amend the Constitution squarely on the citizens, thus fulfilling one of the most crucial tenets of democracy. 

 

In theory, this makes sense; it sounds great, in fact. But because we live in a pluralistic society in a country that’s a couple centuries old, of course it can’t be as simple as it sounds. Originalism has a few problems to contend with, some of which are clear and easy to point out, and others that require a broader understanding, and perhaps even appreciation, of all the peoples who call America home.

 

For starters, the Constitution is very short. It’s just a little over 7,500 words including all its amendments. By the sheer power it has as being the sole law of the land, it’s a lot of weight to carry in a piece of text that’s about as long as three times the size of this article you’re reading now. Naturally, the Constitution cannot possibly hold all the laws explicitly written in full detail that will dictate the lives of 325-plus million people. Sometimes the Constitution does a good job at laying things out. It says very clearly that to be president, a person must be at least 35 years old; it also says that each state gets two senators - not one, not three, not two only during leap years. 

 

 

But more often than not, the Constitution is objectively vague. We know what “due process” is, technically, but how do we actually measure “due?” What constitutes the “general welfare” of the United States? Surely, the general welfare of a country is measured differently during times of war than during peacetime. And what does “general” mean here, anyway?

 

In order to fill in the gaps, originalists attempt to surmise what the writers of the Constitution had in mind when they put these words down on paper. For instance, the Constitution explicitly gives Congress the power to establish and to fund an Army and a Navy. But the text says nothing about an Air Force, since it would be a century after the Constitution was written that the Wright brothers would start flying around Kitty Hawk. To the writers of the Constitution, human flight was naught but a fantasy, and so there is no ambiguity in the text about what kind of armed forces Congress can establish: an Army and a Navy, that’s it. Could a lawsuit make its way to the Supreme Court arguing that the entire institution of the Air Force is actually unconstitutional and must be disbanded? Unlikely. But even if it did, the justices would probably infer that when the Founding Fathers wrote that Congress could establish an “Army and a Navy,” the public, and therefore judges, understand that to mean the establishment of “armed forces” so that our country can be protected, as that is the most logical interpretation of what the Constitution means to say.

 

This way, originalists argue, the Constitution does indeed allow the flexibility to accommodate its text in a changing, modern society, as Justice Gorsuch himself reasoned. It’s how and why free speech now also applies to the things we post on the internet. But it is this same faux flexibility that highlights some of the shortcomings of originalism. Because even taking the most “logical” explanation to justify the existence of an Air Force, that conclusion still had to be inferred, interpreted, arrived at with the morsels of text available and the context in which the question was framed, which is inevitably influenced by the societal environment in which we live in at any given time.

 

The rigidity of the ideals of originalism, at the end, doesn’t allow for healthy democratic debate (whatever that means) like its proponents contend, or limit the whims of judicial lawmaking within a scant text of rules. On the contrary, originalism must wrestle with what may be the two biggest issues it tries to pass as features, which are issues that it mostly takes for granted but that people, especially the most vulnerable, must fight against every day, namely that: originalism assumes that all laws mandated by the Constitution are fair and just, and that all persons have equal democratic representation to ratify any laws that may, in fact, not be fair or just. 

 

 

One of the most blatant examples of this is the landmark Supreme Court case Brown v. Board of Education, in which the justices unanimously decided that segregation in public schools is unconstitutional. This ruling, which was based on the regularly contested 14th Amendment, partially overturned the Plessy v. Ferguson decision from fift50  years earlier, which established the infamous “separate but equal” doctrine in America. Originalists concede that, within the scope of originalism, Brown  was technically wrongly decided. To be clear, they all agree that the decision was indeed the correct one, and that segregation has no place in schools; but the rigidity of originalism would not have allowed for that decision. There is just no directives about race relations in the Constitution. The 14th Amendment was also at the center of similar landmark cases handed down by the Supreme Court, such as Roe v. Wade regarding abortion, and Obergefell v. Hodges regarding same-sex marriage.

 

This is an interesting dichotomy of opposing forces, because originalism gives itself an out when it conveniently needs one, but grasps hard at its tenets when that’s better suited. Justice Coney Barrett herself has conceded that while Brown was correctly decided, it would not have been so if it had been fully analyzed through the decrees of originalism. She and other originalists take umbrage in the fact that, presumably, no one would try to argue against Brown now. In other words, since the question of segregating schools would never actually reach the Supreme Court, there is just no reason to worry about it. And so Justices like Coney Barrett and Gorsuch see Brown as a sort of super-precedent that could never be successfully argued against in court.

 

But this is an easy out, and also a convenient one. Segregation is plain wrong and unacceptabel, and so it is easy to “bend” the rules a little to allow schools to be desegregated. But when the question is same-sex marriage, or even just consensual same-sex intimacy, then the best thing to do is to contemplate a piece of text and donnishly point out that it doesn’t mention same-sex marriage at all and it must therefore be unconstitutional. This is a layman’s outlook of the issue, to be sure, but it still serves to highlight how sometimes we should in fact question the morals and ethics of our laws.

 

Just like school segregation was lawful but unjust, so should we be able to look at other societal issues and gauge whether vague laws that were written over two centuries ago by men who owned other people are indeed fair. Justices can infer that the Constitution meant “armed forces” when it explicitly listed only an “Army and a Navy” as being under control of Congress; why can’t they infer that when the Constitution says that marriage is “between a man and a woman” surely what it means to say is that marriage is a civil pact between two consenting adults. The fact that marriage is “defined” in the Constitution is why Justice Scalia argued against same-sex marriage. In his view, there was no jurisdictional path he could have taken to interpret what the writers of the Constitution actually meant when defining marriage; or, at least, not in the same way that justifies the existence of an Air Force, I suppose.

 

 

It is this same argumentative viewpoint of legality and fairness that originalists use to call into question the Roe v. Wade decision. It’s why there are still lawsuits making their way up to the Supreme Court that seek to overturn Obergefell and Roe v. Wade. And this is a slippery slope because in its quest to “limit” judicial power, originalism places the burden of slow progress in the hands of the people while erroneously assuming that everyone has equal representation in Congress. In other words, originalists like Scalia argued that he, for one, wasn’t necessarily opposed to same-sex marriage, since the Court should strive to make all decisions apolitical anyway; but rather that the question of the legality of same-sex marriage should have been left in the hands of the people. If the people decide that something should be the law of the land, the Congress that represents them can then carry out those wishes.

 

This, again, in theory should not pose a problem. In fact, we have seen it in action when we have states like New York and California that allowed same-sex marriage before the federal government did and that have more lenient abortion laws than other conservative states. But this hands-off approach is a wistful assumption that everyone can equally participate in the democratic process and so, eventually, the will of the people will prevail.

 

But in 2013 the Supreme Court itself infamously struck down key provisions of the Voting Rights Act, and now Republican states are enacting over 250 laws that make it harder for people to enforce their right to vote. These laws are nothing new, but they will now be more difficult to challenge. Laws that blatantly target Black voters, and Native American voters, and poor voters.  And so for these minority groups, it must seems like a bit of a parody for the highest court of the land to effectively say that if people don’t like a law, they change it by voting like-minded representatives into Congress, while at the same time allowing states to enact laws that make it harder to vote.

 

After Democrat Heidi Heitkamp was marginally voted into Congress with the substantive help of Native American voters, the Republican-controlled state legislature moved to pass laws that made it more difficult specifically for Native Americans to vote: they required an ID that explicitly notes a street address, which had never before been a requisite, with full knowledge that many Native Americans live in reservations that don’t have street addresses. Heitkamp then lost her reelection. Lawmakers in Georgia are enacting laws that make it more difficult specifically for Black voters to exercise their democratic right. Mail-in voting is being challenged all throughout the country. It is disingenuous, for anyone but specially for judges, to think that the will of the people is being carried out when a large swath of the population is not given the rightful access to the democratic process that originalism purports to support and protect. Just like it is disingenuous to think that every decision the Court makes must be apolitical - for everyone else on the ground, every decision can be nothing but political.

 

 

The complete opposite of originalism has its faults too, certainly. This is what is commonly known as having a “living Constitution,” one that evolves as society changes around it. This is what Justice Ruth Bader Ginsberg argued for and what Justice Scalia fully rejected. Certainly, judicial overreach can be a big problem, and there should be a way to limit the power of judges, especially of those in lifetime appointments. In fact, some argue that it is preferable to have an originalist on the bench who will at least be constricted within a jurisprudential framework rather than a wildcard conservative wielding their judicial lawmaking powers all across the land.

 

But sometimes it is necessary to have a moral voice of reason; a person to see that because the word “sex” was not explicitly included in the Voting Rights Act as a basis of discrimination, that didn’t mean that women should not be allowed to vote (Scalia famously argued that, in fact, the 14th Amendment does not prohibit discrimination on the basis of sex because when it was written, people did not actually think that women should be treated equally). To see that disability laws are unfair to disabled people and they are not equally and democratically represented in Congress. Or maybe just to see that a woman’s right to choose has nothing to do with “due privacy” (on which Roe v. Wade is based on) and everything to do with women being rational human beings.

 

As it goes, democracy is the worst kind of government except for all the others. A similar sentiment can be applied when it comes to judicial ethics and judicial powers. We shouldn’t just rely on the conscience of a person when it comes to our liberties and hope they do they right thing. But we also shouldn’t limit the ethical and moral necessity of striking down unfair and unjust laws -- certainly not under the guise of a jurisdictional dogma that veils itself as the protector of the law, when what it mostly achieves is stump on progress.

 

Author Bio:

 

Angelo Franco is Highbrow Magazine’s chief features writer.

 

For Highbrow Magazine

 

Image Sources:

 

--Motiqua (Creative Commons)

--SupremeCourt.gov (Creative Commons)

--Steve Masker (Creative Commons)

--Steve Petteway (SupremeCourt.gov, Creative Commons)

--Pikist (Creative Commons)

--Rep. Carbajal (Wikipedia, Creative Commons)

 

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