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Left to their own devices, nine life-tenured lawyers with robes on the Supreme Court can make the Constitution say anything they want it to. Given the constraint of having to decipher what the Founders meant in their own original interpretation of the Constitution gives justices less freedom to enact their own agenda via the courtroom. Adam J. White reports in The Wall Street Journal:
America’s most solemn civic ceremony, the presidential inauguration, centers around the oath of office. The president swears to “preserve, protect and defend the Constitution of the United States.” But when the Constitution’s meaning is the subject of heated disputes, what exactly is the president committing himself to?
The same question might occur to newly enlisted soldiers, when they swear their oath to “support and defend the Constitution” against “all enemies, foreign and domestic.” Or to newly naturalized citizens, who do the same. Many of the Constitution’s provisions are plain and precise, but others are “majestic generalities,” as Justice Robert Jackson put it eight decades ago; they need to be interpreted by elected leaders, by civil servants and by citizens.
And by the Supreme Court, of course, which tends to be the final arbiter of it all. Chief Justice Charles Evans Hughes put the point bluntly a few years before his first appointment to the Court: “We are under a Constitution,” he said in 1907, “but the Constitution is what the judges say it is.” It’s not exactly true, but it’s true enough; look no further than our annual obsession with justices’ year-end blockbuster decisions. So on Inauguration Day, is the president pledging himself to preserve, protect and defend the musings of nine black-robed, life-tenured lawyers?
Forty years ago, conservative lawyers began to offer an alternative. They urged the Supreme Court to read the Constitution in accordance with the Founding Fathers’ original intent. “Originalism,” as it came to be known, emerged in the wake of decisions like Roe v. Wade, but also in the echoes of the nation’s bicentennial celebration, when Americans rediscovered their interest in—and affection for—the men who declared the states’ independence and who framed the nation’s republican Constitution.
The conservative legal movement began with law professors such as Robert Bork and Antonin Scalia, and a generation of law students who would found the Federalist Society and energize the Reagan Justice Department. Then came a wave of federal judges, including Bork and Scalia themselves, who applied constitutional originalism in actual cases. Their ideas gained weight in the courts of law and, crucially, in the court of public opinion.
Early on, originalists reframed their general notions of the Founders’ original “intent” into somewhat more objective considerations of the Constitution’s original public “meaning”—that is, of what a constitutional provision’s particular words meant to the public at the time of their ratification. Law professors published countless books and law-review articles analyzing the Constitution’s words, providing intellectual building blocks for Supreme Court lawyers’ briefs and justices’ opinions. In the Court, oral arguments re-centered around close analyses of the original meaning of statutory and constitutional texts, an approach known as “textualism.”
The first originalists and textualists were confident dissenters, in both academia and the judiciary. But after decades of research and argument, they now find themselves in the majority at the Supreme Court, even overturning Roe v. Wade itself.
Perhaps the best sign of the originalists’ success is the fact that so many progressive legal scholars and litigators now attempt to frame their own arguments in originalist (or at least “originalish”) terms, such as Yale law professor Jack Balkin’s Living Originalism. In 2015, one of President Obama’s own appointees to the Court, Justice Elena Kagan, told a Harvard Law School audience that “we’re all textualists now, in a way that just was not remotely true when Justice Scalia join[ed] the bench.”
But this summer Justice Kagan revisited her widely quoted quip. In West Virginia v. EPA, the Court ruled that climate regulators had exceeded the limits of the Clean Air Act, and she dissented from the majority’s reading of the law. “It seems I was wrong,” she wrote. “The current court is textualist only when being so suits it.”
Days later, at a judicial conference in Montana, she told the audience that inconsistency would undermine originalist judges’ credibility: “You have to apply methods that in fact discipline and constrain you, and you have to apply those methods consistently over cases, whether you like the outcomes they produce or whether you don’t like the outcomes they produce.” She was challenging originalists to be the best version of themselves.
Erwin Chemerinsky, dean of the Berkeley Law School, goes further. In “Worse Than Nothing: The Dangerous Fallacy of Originalism,” he argues that constitutional originalism could never credibly constrain judicial discretion. “Originalism is not an interpretive theory at all,” he writes. “It is just the rhetoric that conservative justices use to make it seem that they are not imposing their own values, when they are doing exactly that.” His goal, then, is to “expose” originalism as not just a “fallacy” but a “dangerous” one.
Mr. Chemerinsky has long been one of the most pointed critics of originalism—and of originalist justices. When Chief Justice Roberts told his Senate confirmation hearing that judges should strive to be umpires who merely apply the rules instead of making them up, Mr. Chemerinsky blasted him in a law-review article: “Why did Chief Justice Roberts, who obviously knows better, use such a disingenuous analogy?”
His book continues in the same spirit. Originalism, he contends, suffers from five basic problems: It looks for fixed meaning in constitutional provisions that have none; it was not what the founders themselves intended; it produces abhorrent results; it cannot keep pace with the changes of modern life and governance; and originalism’s own practitioners abandon it when it produces results they don’t like.
Some of these criticisms contain a grain of truth. Take Mr. Chemerinsky’s contention that “the Framers likely did not want their views to control constitutional interpretation.” They surely understood that the Constitution, like all written laws, would be the subject of debate. James Madison, for example, warned in Federalist 37 that “all new laws, though penned with the greatest technical skill,” contain obscurities and equivocations that need to be “liquidated and ascertained” through their application. And Madison, late in life, told a correspondent that the Framers’ own private debates at the Constitutional Convention in Philadelphia “can have no authoritative character.”
But when Mr. Chemerinsky quotes that warning, he neglects Madison’s punchline, from the very same 1821 letter: “the legitimate meaning of the Instrument must be derived from the text itself,” as informed by “the sense attached to it by the people in their respective State Conventions.” One can scarcely imagine a starker endorsement of at least some version of originalism and textualism.
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