With Justice Gorsuch’s confirmation, there has been a lot of talk about the judicial philosophy of originalism. One thing that struck me throughout this process has been how little originalism’s critics seem to understand it. This may be because the loudest opponents to Gorsuch were either politicians with no interest in accurately portraying the opposition, or trolls who live in the bowels of internet ignorance.
A favorite argument of these people is that an originalist judge views black Americans as 3/5 of a person. The only explanation I can come up with for this viewpoint is that they wore shock collars set to go off anytime they had a credible thought. There is simply no way anyone could speak to someone with even a passing familiarity of originalism and come away with that belief.
So where does this 3/5 nonsense come from? The Constitution originally counted slaves as 3/5 of a person for taxation and representation purposes. Ironically enough, this was actually better for slaves because counting them as less than a full person reduced the number of Southern legislators; it was the slave owners who wanted them counted as full people. Regardless, something did exist akin to what those opposed to originalism say. But it was replaced by the Thirteenth Amendment, which ended slavery in the U.S. Therefore, the 3/5 compromise has been defunct for over a century and a half. To say an originalist would apply a law that is no longer operational is to be purposefully ignorant.
Yet I have also seen many intelligent liberals with a deep misunderstanding of the philosophy they oppose. Some argue that originalism implies that the Founding Fathers were perfect and got everything exactly right in 1789. An offshoot of this argument is that the world as it exists today is very different from the Founders’ time, and since the Founders did not discuss the Constitution’s application to air travel or GPS devices, the original intent cannot inform modern cases. Another criticism of originalism is that the Constitution was ratified at a time of slavery, when politics was dominated by wealthy white men, and therefore an original interpretation of the Constitution would deny rights to minorities.
Let’s examine each of these criticisms in turn.
First, we can dismiss right off the bat any notion that the Founders thought they were perfect. In the Constitution they created, immediately after establishing the new form of government the Founders set up a process to amend the Constitution. They knew changes would be necessary, but those changes are to be accomplished through the people’s representatives, not unelected and unaccountable judges appointed for life.
Nor does originalism believe in or require perfect authors. While often discussed in terms of the Constitution, originalism applies just as much to statutes passed by Congress. While not all originalists are also political conservatives, I think I would be safe placing a bet that most are. Conservatism includes a healthy skepticism of the wisdom of politicians and their ability to accurately direct the change they want. In a discussion on judicial philosophy, the late great Justice Scalia unfavorably compared Congress to 5th graders. Originalism does not mean that the people passing laws, or even the Founders, were perfect; merely that what they intended matters.
Second, no one disputes that technology has greatly advanced in the centuries since the Constitution was adopted. But the parts of the Constitution that are debated deal with principles, not technology. An originalist interpretation of the 1st Amendment applies to websites just as well as newspapers, because it speaks to the principle of freedom of the press, not the technology of printing newspapers in 1791.
When there is a question of how the law should be applied to a particular situation, an originalist researches how the law was understood at the time it was passed. For instance, thermal cameras that can see through walls did not exist when the Bill of Rights was adopted, but this does not mean that the Fourth Amendment is voided by new technology. An originalist researches what the Founding Fathers understood to represent an unreasonable search and compare that to what occurs with the thermal cameras.
The final opposition to originalism is results oriented. At its base level, opponents will complain simply that originalism did not lead to the result they wanted – a sympathetic petitioner did not win the case. This is little more than an open call for judges to throw out the law and substitute their own views and opinions. This is clearly not the judiciary’s role and is a subversion of our democratic ideals.
But at the higher intellectual levels, this argument calls into question the fitness of those who passed the laws. They point to a history of racism and sexism in America. This is when they mention that all of the Founders were members of that noxious group: rich white men. They say that the majority does not typically grant rights to the minority, so the only way for the minority’s rights to be recognized is for judges to read them into the Constitution where they did not exist before.
It is obviously true that we live with the historic stain of discrimination. But it is simply false that legislatures do not grant minority rights. After fighting the Civil War to end slavery, Congress and the States passed the 14th Amendment, which guaranteed that everyone born here is a full U.S. citizen with “the equal protection of the laws.”
The problem is not that Congress did not pass laws protecting the rights of racial minorities; they did. The problem is that for a long time judges ignored the law and substituted their own values, which is, oddly enough, the preferred method of originalism’s opponents.
That is a lot of writing to say what originalism is not. But the question remains of what originalism is.
Simply put, originalism follows the premise that the law is the law, and it is a judge’s responsibility to apply the law, not revise it to suit his desires.
When Congress passes a law, or when the founding generation adopted the Constitution, they did so with particular meanings in mind. Representatives of a majority of the country, or for the Constitution a super-majority of the country, pass legislation for specific reasons and with a common understanding. If, over time, the meaning of that legislation is changed to reflect a new understanding, that new understanding is invalidating the will of the people who’s representatives passed the law.
Of course we are not completely and totally bound to the will of previous generations. But in a democracy, changing the law must again come from the people’s representatives. If the law is instead changed, or revised, or updated, or whatever other euphemism one may choose to invalidate a previous understanding of a law, if that is done by a select number of judges, then it is anti-democratic. In a democracy, the people of the current generation are always free to overrule the laws put in place by a previous generation, either directly or through their chosen representatives speaking on behalf of a majority of the people. But judges do not represent the people and therefore have no democratic authority to change, revise, or update a law.
Originalism, therefore, is a judicial philosophy that respects the democratic ideals this country is founded upon. It is a philosophy that recognizes judges cannot be philosopher kings. It is a philosophy that leaves power with the people and their chosen representatives. It is the only judicial philosophy a judge should accept.