Neil Gorsuch will soon be an associate justice of the Supreme Court. Barring any eleventh-hour scandal (unlikely, if one is to judge by his haircut), the Senate will confirm him. It will be confirming a young man, in judge years, a reliable conservative in politics and an originalist in legal philosophy.
The first two traits are unobjectionable in a judicial nominee—we expect presidents to nominate people with views consummate with their own ideology (or, in Trump’s case, the ideology he promised Christian conservatives he would have at the time of the nomination). There is some opprobrium hanging over the fact that it is a “stolen seat,” but that shame attaches to the Senate, not to Trump and certainly not to Gorsuch.
But what does it mean that Gorsuch is an originalist? In its simplest form, originalism holds that the Constitution should be interpreted according to its original meaning, and not according to the personal preferences of an individual judge. There is, in the academic world, a robust debate about the form and function of originalism. But in the political arena, intoning the mantra of originalism has zero meaning. Originalism is the functional equivalent of right-wing trigger warnings and safe spaces. Pure jiggery-pokery.
Originalists sometimes claim that originalism was really the “first” constitutional jurisprudence, and that it is modern “living constitutionalists” who have abandoned first principles. They can find large accumulations of data to support their claim, but they misread it. It is true that nineteenth-century jurists sometimes resorted to the “intent of the Founders” and the “original meaning” to interpret the Constitution. But nineteenth-century jurists used original meaning as one of many canons of interpretation. They applied rules that started with the text of the Constitution. If the text could not produce a clear meaning, they applied intertextual rules of interpretation. They would look to the section of the Constitution under consideration and interpret it in light of the section’s purpose and the section’s purpose within the whole document. They would reject interpretations that produced irrational results or were at cross-purposes with other sections. When these interpretive rules could still not produce a certain meaning, they looked to extra-textual sources, such as those that established the Founders’ intent. In short, original meaning was an interpretive tool, not a philosophy.[1]
Originalism in the twentieth century, at least before it achieved theoretical coherence, was wielded like a cudgel. Franklin Delano Roosevelt’s Democrats protested the Supreme Court’s judicial assault on New Deal legislation by claiming that the Supreme Court had overstepped its institutional role. For evidence, New Dealers turned to the Founding. In the 1950s, conservatives decried the Warren Court’s civil rights decisions, notably Brown v. Board of Education (1954) and Cooper v. Aaron (1958), because of their violation of original understandings of states’ rights. In both cases, the judiciary was seen as usurping a power in clear violation of principles understood at the Founding.
Originalism began to cohere as a judicial philosophy in the 1970s. The term itself was, like so many terms, coined by a critic. Paul Brest of Stanford Law School wrote “The Misconceived Quest for Original Understanding” in 1980, a lengthy critique of those commentators who complained that judicial activists had been unfaithful to the text of the Constitution.[2] They had in mind the Warren Court and the Burger Court, whose collective work had created a federally-enforceable right to equal access to education, bolstered the rights of the accused in criminal cases, and given women a limited right to abortion.
Conservatives cried foul. Such rights were not anywhere in the text of the Constitution, they said. Such “constitutional rights” were created from whole cloth by judges. What was needed was a judicial philosophy, one that would provide a guide to constitutional interpretation that was politically neutral. Originalism fit the bill.
A quick distinction needs to be drawn between the originalists of the 1970s and 80s and originalism today. When the first originalists spoke of the Constitution’s original meaning, they tended to put special emphasis on the Founders, loosely defined. Scholars have called this “original intent originalism.” As originalists began to shore up the methodological boundaries of their interpretive strategy, they settled on “original meaning originalism.” In place of the fuzzy “intent of the Founders,” originalists substituted the original public understanding of the document as a guide to fixing the meaning of the Constitution. Originalists today tend to be of the “original meaning” variety, as is Gorsuch.
We must also draw a distinction between originalism as a philosophy and as a discrete interpretive strategy. Certain sections of the Constitution cannot be understood except by reference to original meaning, and no “living constitutionalist” would disagree with that. To take an obvious example, Article IV, section 4 of the Constitution says that the United States “shall protect each of [the States] … against domestic Violence.” To use the words “domestic violence” today conjures up images of Ray Rice coldcocking his fiancé in an Atlantic City elevator. But in 1787-88, the immediate reference was Shays’s Rebellion in western Massachusetts. “Domestic violence” in 1787 meant insurrection. No reasonable living constitutionalist would argue that the Domestic Violence Clause of the Constitution meant to comprehend Ray Rice.[3]
Where the originalist and the living constitutionalist depart is usually connected to the “evolving” meaning of core concepts within the text. Whether we are talking about “commerce” in Article I, the Eighth Amendment’s prohibition on “cruel and unusual punishments” or the Fourteenth Amendment’s guarantee of “equal protection of the laws,” the precise application and meaning of these core concepts have most assuredly changed over time. Let us take an example. If a state passed a law that ordered that the punishment for marijuana would be to cut off the soft part of ear and brand the letter J on the convicted person’s forehead, would this constitute “cruel and unusual punishment?” The obvious answer for the layperson would be yes. But for the originalist, the answer is no.
It is no slander to originalists to use this example. Originalists believe that the Eighth Amendment’s language barring “cruel and unusual punishments” means what it meant to most reasonable people at the time of its proposal, adoption, and ratification. Corporeal punishments were in common use when the Eighth Amendment was ratified and remained in use afterwards. It was only during the criminal reform movement of the nineteenth century that such punishments (such as the pillory, flogging, or mutilation) came to be abolished.
Now, most originalists would view this as a positive development, and applaud the legal principle. They would also note that the change came as a result of the legislature—the only branch entitled in our system to pass new laws. If the legislature decided to turn back the clock, then the originalist judge might only say that the clock could not be turned back further than 1791. So flogging, branding, and mutilation are still in.
Principled, yes. Also stupid. And I use this example because Antonin Scalia did, in his famous essay defending originalism as the least evil means of constitutional interpretation in 1987. Scalia admitted in the article that, faced with such a case, he doubted that he could apply the originalist rule. To be clear, Scalia was not saying that he lacked the courage of his convictions. Rather, he was pointing out that originalist judges operated in the real world, not in some fantasy headspace where doctrinal purity is the measure of a man or a woman. And in his own jurisprudence, Scalia used originalism more as an interpretive tool—and one among many—that guided a conservative legal philosophy.[4]
To be blunt: Scalia was not an originalist. Not really. He used originalism when he believed it appropriate, but he moderated it (and outright abandoned it) at key moments.[5] So why do we remember him as an originalist? Part of the reason is that he spent so much time telling everyone he was an originalist to contrast his conservative legal philosophy with the “living constitution” school. Like most Supreme Court justices, Scalia accepted multiple speaking engagements every year. He played the role of provocateur to perfection, telling audiences that the Constitution was dead, that those who failed to interpret it according to its original intent were “at sea,” and otherwise belittling his opponents.
I saw Scalia do this once, in Atlanta at a Continuing Legal Education seminar. The subject was constitutional law, and the sessions featured big names like Jack Balkin from Yale Law School and Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit. As with all big sessions, the real heavy hitters came at the end. Scalia was billed last. The penultimate speaker was C. T. Vivian, the civil rights warrior. In a warm and disarming voice, he told the assembled lawyers about what it took to register black people to vote in Alabama in 1965. He described how he and his people would be turned away at the courthouse steps by the white sheriff. “We’d wait about ten minutes, let him get real comfortable inside,” Mr. Vivian related. “Then we’d go right back up and get sent back down again.”
On the fourth trip of the steps, the sheriff socked Vivian square in the stomach with a billy club, sending him sprawling back down the steps. “I used to run backwards down the stairs when I was a kid,” he said to us all, a slight smile on his face. “It all came back to me.” And then he went back up. This time, the sheriff slugged him straight in the jaw and sent him sprawling. Such was C. T. Vivian’s commitment, proved again and again during the Civil Rights struggle.
Mr. Vivian was asked at the end what it was like to have been on the bridge at Selma, to see the stormtroopers bearing down on him. “I was scared,” he said, quietly. “I didn’t want to get knocked down. When I was, I didn’t want to get back up. But you get back up. You do it for your children. You do it because you have to. Because,” he added with quiet conviction and genuine humility, “Every day has to be spent making America America.” The audience was moved. A room full of both conservative and liberal lawyers rose to their feet and burst into applause.
It was a tough act for Antonin Scalia to follow. Nor did it help that Scalia projected his famous arrogance throughout his rambling speech. He scolded those in the audience who thought the Constitution was a living document. He ridiculed those who might interpret the Constitution in light of evolving social values, “whatever those are,” he added with a roll of his eyes. On the subject of gay marriage, he smirked and hugged the podium before admonishing us all that “the Constitution has nothing to say about homosexual sodomy.”
Some people (including, we are told, Ruth Bader Ginsburg) found Scalia’s combative demeanor charming. I regret to say I never knew him well enough to be charmed by him, although several trusted friends of mine have remarked on his intellectual curiosity, love of opera, and fondness for anchovy pizza, all of which speak well of him. But I found his arrogance off-putting. This was especially true when he answered a question about the Supreme Court’s opinion in Shelby County v. Holder, in which the Supreme Court struck down part of the Voting Rights Act. The question was pertinent, given that C.T. Vivian had just given witness to the kind of human struggle necessary to achieve the law. But Scalia waved it away and said that racial political issues had largely been solved, at least when it came to voting.
Whether you believe Scalia right or wrong, the point is actually about jurisprudence. Chief Justice John Roberts authored Shelby County, and both of the Court’s prominent originalists (Scalia and Thomas) joined in his opinion. But Roberts’s opinion, with its emphasis on “equal state sovereignty,” is hardly originalist. No reading of the Civil War Amendments and their original meaning could conclude that the enormous grant of authority they gave to Congress to investigate and guard against egregious rights violations by certain states would not make inroads on state sovereignty, or necessarily scrutinize some states more severely than others. But Scalia had no hesitation joining in the opinion. Conservative, yes. Originalist? Hardly.
If Scalia was not in fact an originalist, or if he was just a “faint-hearted originalist,” (as Scalia called himself) and if he described his originalism as tempered by that pesky thing we call political reality, then why do conservatives insist on describing Scalia as an originalist? Why do conservatives repeatedly demand that Supreme Court nominees be originalist?
Well, for the same reasons that liberal academics put trigger warnings on their course syllabi. Trigger warnings are supposed to warn students that course material (whether images, lectures, books, or discussions) might “trigger” trauma in students. But trigger warnings do no such thing. They can do no such thing, both because triggers are individual-specific and trauma has been so broadly defined that anything and everything encompasses it.[6] A trigger warning on a syllabus (and perhaps, just perhaps, the public defense of them by academics on Twitter and Facebook and in the Huffington Post) is more of a signal to everyone about the syllabus writer’s sympathies. I stand with the oppressed, they say. I respect their experiences and recognize my own privilege.
People on the right have roundly ridiculed trigger warnings (along with safe spaces and microaggressions) as soft and juvenile and snowflakey. To them I would answer: originalism is your safe space. Your security blanket. When Rush Limbaugh or Donald J. Trump says he wants originalist judges, he doesn’t mean it. What they mean is that they want a conservative, one who will roll back judicial protections for homosexual rights, reproductive rights, and civil rights. Like the academic’s placement of a trigger warning on a syllabus, conservative politicians’ use of the word “originalism” is a method of signaling to other conservatives.
The left is often (and justly) accused of moral smugness. After all, who wants to stand with the oppressor? Who is for inequality? Conservatives have been on the moral defensive over social issues ever since the Civil Rights Movement. But with originalism, conservatives claim the moral high ground. What’s more politically correct than revering the Constitution? Originalism is all about psychological catharsis, a claim on the kind of moral smugness so long denied to the conservatives standing athwart history, yelling stop. Those who use it in the political arena pretend the principle in order to shield themselves from the very charge of hypocrisy that they cast upon others.
I stole that last thought. “Hypocrisy is the beginning of virtue,” Antonin Scalia said, when I saw him speak in Atlanta. “You want to make them lie.” He was defending originalism by arguing that we are better off when judges are forced to violate their principles by saying things that they did not mean. Who would have thought it would apply to the president who named his successor?
H. Robert Baker is an associate professor of History at Georgia State University and the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Ohio University Press, 2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (University Press of Kansas, 2012). His current research explores the influence of historical consciousness on constitutional thinking, as well as the nature of constitutional change over time.
References
[1] Although not entirely on point, anybody interested in the original meaning of original meaning, and the place of original meaning in the original debates over the meaning of the Constitution, should read Jack N Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996).
[2] Paul Brest, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60 (1980): 204–38.
[3] This example is used by Jack Balkin to draw the simple distinction between his use of “originalism” as an interpretive tool and the dispositive use of it by originalists. See his book Living Originalism (Belknap Press, 2014, reprint ed.)
[4] Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849–65.
[5] I wish I could claim this as my original observation, but the hat tip goes to Randy E. Barnett, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism,” University of Cincinnati Law Review 75, no. 1 (Fall 2006): 7–24.
[6] Katy Waldman, “The Trapdoor of Trigger Words,” Slate, September 5, 2016, http://www.slate.com/articles/double_x/cover_story/2016/09/what_science_can_tell_us_about_trigger_warnings.html.