Joshua Zeitz gets the law and history wrong in attacking originalism.
Joshua Zeitz gets the law and history wrong in attacking originalism.
W henever progressives are upset at the outcomes of Supreme Court decisions these days, somebody takes up the task of slapping a new coat of paint on old complaints about originalism and presenting them as if they were a new insight. Historian Joshua Zeitz, who is not a lawyer, carries out this mission in Politico, terming the Bruen and Dobbs decisions on the Second Amendment and abortion as “faux ‘originalism.’” His argument is that judges are institutionally incapable of accurately interpreting historical sources.
Unsurprisingly, Zeitz offers no alternative theory of how judges should read the Constitution in a way that is both democratically legitimate and within their professional competence. What other basis is there to impose the will and judgment of nine lawyers upon the American people at large? Moreover, he doesn’t even get the history right; his op-ed merely repackages bad historical arguments raised by the litigants in Bruen and Dobbs and debunked in the careful and scholarly opinions of the Court.
They Wrote It Down for a Reason
As I have explained at length, the concept of originalism is inseparable from having a written constitution. The British “constitution” was, and remains, largely informal rather than committed to a single, written document ratified by the people and binding on Parliament. England had a common-law system: judges applied precedents amassed in prior cases, and while a common-law judge was not supposed to depart from precedent, the common law evolved over time case-by-case rather than being anchored to a written text. Some areas of American law, such as the bulk of the subjects taught in the first year of law school (contracts, property, torts) are still largely handled as common-law fields of state law. Some areas of federal law, such as admiralty, proceed the same way.
The Founding Fathers, reared in this tradition, could have given us a common-law system in which everything is permanently up for grabs in either the legislature or the courts. They deliberately did not. American colonies also had their own tradition of written colonial charters and consensual agreements such as the Mayflower Compact, and their experience under the British crown made them vigilant in seeking more rigorous protections for their rights and less permeable limits on the powers of their government. So, they did something unique in the world in the 1770s and 1780s. They wrote a rule book.
Following the Declaration of Independence, nearly every state committed to writing its own constitution, usually drafted by the state legislature. Massachusetts went a step further and submitted its proposed constitution to the voters, who rejected it in the middle of the Revolutionary War. This required the state to convene a constitutional convention whose work would be ratified by the voters. The resulting Massachusetts Constitution of 1780 remains in force today as the world’s oldest functioning written constitution. The federal government likewise began by adopting the Articles of Confederation, which served effectively as an agreement among the states, and then the 1787 federal Constitution, which was submitted for state-by-state ratification by the voters.
The whole point of writing down the rules and submitting them to the voters was to make those rules permanent, binding on the government, and not easily evaded without returning to the people to ask their consent. This is why John Adams wrote, in the Massachusetts Constitution of 1780, that the separation of powers existed to ensure “a government of laws, and not of men.” It is why Alexander Hamilton wrote in Federalist No. 78 that the judiciary’s role was to enforce “inflexible and uniform adherence to the rights of the Constitution” because “until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
George Washington, in his Farewell Address, warned that the very survival of the American experiment in free government depended upon treating the written Constitution as fixed and binding until amended by popular consent:
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. . . . Towards the preservation of your government . . . resist with care the spirit of innovation upon its principles.
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
John Marshall, in Marbury v. Madison, grounded the power of judicial review itself in the fact of a fixed, binding written constitution derived from popular consent and “designed to be permanent”:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. . . . There is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. . . .
Marshall went on to describe the judicial duty to be bound by the Constitution, when it conflicts with some act of the other branches of government, as following similarly from “the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” Notice that, like Washington and Hamilton, Marshall stressed with particular care the three essential and then-novel facts about the Constitution: that it was written down, that the people made it, and that it could not be changed without their consent.
There were, of course, Founding-era skeptics of binding the country in this way. Thomas Jefferson, for example, famously wrote from revolutionary Paris to James Madison in 1789, following the Constitution’s ratification, questioning “whether one generation of men has a right to bind another”:
It may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. . . . The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.
It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. . . . But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves.
Notice again: Jefferson’s proposed solution was not to allow a small body of lawyers to revise the Constitution with the times, but to have the entire document expire and be revisited by the people. In other words: He accepted the premise that, without rewriting it and submitting it for renewed popular consent, a written constitution would remain binding in its original meaning until changed.
I could go on, as I and others have; the debates of Abraham Lincoln, Stephen Douglas, Roger Taney, Benjamin Curtis, and others around the Dred Scott decision were conducted on the explicit premise that the Founding-era meaning of the Constitution was decisive, and Lincoln and others expended significant effort reciting at exhaustive length the relevant Founding-era history. Over a third of Lincoln’s 1860 Cooper Union address is devoted to this topic. Fixing the meaning of the Constitution at the time the people consented to it was understood by the leaders of the Founding generation as essential to the entire project, and that understanding was shared by the generation that framed the 14th Amendment.
Lawyers, Not Philosophers or Social Scientists
What does Zeitz suggest as an alternative? He references “the idea of the Constitution as [a] living and evolving document,” the Darwinian theory coined by the notorious racist and eugenicist Woodrow Wilson, but this framing uses a curiously passive voice: Written documents do not live or evolve by themselves. If their meaning changes, it is because some institution takes upon itself the power to change them. But what special competence do judges have to do that? If they assume the power to veto democratic legislation based on an “evolved” understanding of the Constitution, who gave them that right, and when? What qualifies them better to do so than the legislature elected by the voters?
New York, in its Founding-era constitution, included a “council of revision” in which the governor and the judiciary together could veto legislation as imprudent. France has such a council today, reflecting its mistrust of its voters. A similar scheme was proposed and rejected at the Constitutional Convention, and New York itself abolished the institution in 1821, leaving only the familiar division between the executive veto and the judicial power of constitutional review.
On the other hand, if the courts exercise less power to police the limits of the democratic branches and offer less protection to rights written down in the Constitution, and substitute instead an ever-widening deference to lawmakers and administrators to govern within their own technical expertise, they are simply abdicating the role envisioned by Hamilton and Marshall, and defeating the reasons for which the Founders drafted written guarantees of rights.
As a non-lawyer historian, Zeitz is naturally prone to look down on mere lawyers doing historical research, but he seems not to grasp what it is that lawyers are trained to do. The interpretation of texts — be they statutes or contracts — invariably involves not just the close reading of language, but examination of where that language came from and what it was understood and intended to mean when it was written. Indeed, before the rise of originalism and textualism, it was common for courts to look at the legislative history of laws in order to discern the “purpose” of a law, so that activist judges could then adapt a new meaning to the original purpose. This was a practice rife with its own abuses, but it illustrates that Zeitz does not have an alternative to his critique of consulting the history of texts.
Justice Clarence Thomas, in Bruen, explained why discerning the original meaning of constitutional text is a more appropriate task for judges than the alternative:
The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That legal inquiry is a refined subset of a broader historical inquiry, and it relies on various evidentiary principles and default rules to resolve uncertainties. . . . For example, in our adversarial system of adjudication, we follow the principle of party presentation. Courts are thus entitled to decide a case based on the historical record compiled by the parties.
As Will Baude and Stephen Sachs put it, in an article cited by Thomas in Bruen, “tracing a chain of title or a chain of legal authority decades into the past is normal lawyers’ work.” The dissent in Bruen argued for an empirical analysis of the justifications for gun regulation, but as Thomas rejoined, “reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to make difficult empirical judgments about the costs and benefits of firearms restrictions, especially given their lack of expertise in the field.”
Zeitz and other anti-originalists never have a coherent answer to the dual questions of legitimacy and competence. They inevitably lapse sooner or later into a kind of Pontius Pilate “what is truth?” nihilism in which they argue that it is impossible to determine the meaning of text, and therefore courts should simply Do Good. But if what we ask of courts is the same thing we ask of elected legislatures, why have courts or a written constitution at all?
The absence of an answer is precisely why originalists have won the argument with the public as well as in the academy. The Supreme Court confirmation hearings for Ketanji Brown Jackson confirmed this: A Democratic nominee facing a Democratic Senate did not even attempt to argue against the originalist premise in public.
Bear with Us
What about the argument in Zeitz’s own field: that the Court got the history wrong in Bruen? His arguments are scattershot and haphazard, and mostly not even aimed at Bruen. For example, he contends that early American states “commonly regulated the concealed carry of guns.” But Bruen does not say otherwise. As Thomas concludes his review of the relevant history, “the historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. . . . States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.” Zeitz is wrestling with a straw-man version of the Court’s opinion.
Zeitz also offers a double-barreled attack on the individual right to bear arms that was recognized by the Court over a decade ago in Heller and contested by none of the opinions in Bruen. Both of his premises are faulty. The first is the shopworn idea that the Second Amendment was never intended to protect an individual right independent of the collective right to belong to a “well-regulated militia.” In fact, the Second Amendment derived from the English Bill of Rights of 1689, which explicitly placed a right to bear arms among the traditional rights of Englishmen as a bulwark against their own government. As Samuel Adams said in 1769, “the subjects of England are entitled first to the regular administration and free course of justice in the courts of law — next to the right of petitioning the King and parliament for redress of grievances — and lastly, to the right of having and using arms for self-preservation and defence.”
For a brief summary, I cannot do better than Charlie Cooke’s overview of the scholarship, much of it from left-leaning legal academics between the 1970s and the early 2000s. Zeitz does not even begin to grapple with the evidence marshaled in the Bruen opinion or the 2008 Heller opinion relating to the connection between the right to bear arms and individual self-defense.
Zeitz offers this deeply misleading framing of the “well-regulated militia” language: “The concept of a ‘well-regulated’ community — one in which order prevailed, and one which male citizens had a duty to uphold — was not a rhetorical quirk specific to the Second Amendment. It was a pervasive term.”
In fact, “regulated” in the context of a military force had a more specific meaning at the time: It meant that soldiers were properly drilled in maneuvers, which presupposed that all male citizens had weapons and could thus be asked to drill. The 1776 Virginia Declaration of Rights drafted by George Mason defined “a well-regulated militia, composed of the body of the people, trained to arms” — in other words, an armed people preceded their use as a militia in the common defense.
Zeitz’s second and even stranger premise is that the 14th Amendment did not actually aim to guarantee a right to bear arms, only to require that state laws not racially discriminate: It “was intended to require equal treatment under the law. States could not afford some people the right to free expression or assembly (or gun ownership), but not others, strictly on the basis of race. The idea wasn’t that citizens had a right to individual gun ownership. It was that states could not discriminate on the basis of race.” But the notion that the 14th Amendment protected no rights except the freedom from race discrimination is a fringe view that even the stingiest “strict constructionists” do not today defend (and that is at odds with nearly the whole body of modern constitutional law, originalist or not).
He attributes this stance to “Jonathan Bingham, the amendment’s principal author.” Presumably, he means Ohio congressman John Armor Bingham; one would hope that a professional historian pays more attention to that sort of detail. (Also, Bingham’s authorship only covered part of the 14th Amendment’s first section; Senator Jacob Howard was responsible for drafting the citizenship clause.)
Zeitz’s view would render much of Section 1 of the 14th Amendment redundant of the equal-protection clause. It ignores copious historical evidence from the Reconstruction era regarding the guarantee that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Bingham himself argued in the House ratification debate on February 28, 1866: “The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.” He also said that the amendment protected those rights “chiefly defined in the first eight amendments to the Constitution of the United States.” As Justice Joseph Bradley wrote in an 1871 letter explaining that provision (a letter that Randy Barnett and Evan Bernick use to introduce their book The Original Meaning of the 14th Amendment): “The privileges and immunities of citizens of the United States here referred to, are undoubtedly those which may be demonstrated fundamental. . . . We are safe in including those which in the constitution are expressly secured to the people.” Protection of previously enumerated constitutional rights against state invasions was not limited solely to telling states that, if they wished to deprive people of their rights, they must do so on a race-neutral basis.
Not Too Quick
Zeitz’s tacked-on critique of Dobbs fares no better. He claims that “in the late 18th century, when Congress drafted the Bill of Rights, common law held that abortion was not criminal until the moment of ‘quickening’ — the moment when a woman first felt a fetus move or kick.” He then casts 19th-century abortion laws as if they had nothing to do with protection of fetal life.
To start with, Zeitz is sloppy: He affects to be puzzled that, “in the space of 24 hours, the court’s majority moved the goal posts — 1790s for guns, 1850s or so, for abortion.” But the Second Amendment explicitly defines the right to bear arms, and it was ratified in 1791. By contrast, the theory behind the abortion right is “substantive due process,” which derives from the 14th Amendment, ratified in 1868. A lawyer could have explained that to him.
Zeitz can’t even keep his own argument’s time line straight. He argues with regard to the right to bear arms that the 14th Amendment was adopted “in reaction to a very specific set of circumstances” and only applies to race discrimination — but if that is all it does, how could it possibly ban race-neutral laws against abortion?
Zeitz’s abortion history is also bogus. As Ramesh Ponnuru has detailed here, here, and here, Roe v. Wade relied on the shoddy and now-discredited historical work of activist Cyril Means Jr., including the arguments about “quickening” that Zeitz repeats here, apparently unaware of the flimsy and cherry-picked sources he’s parroting, or at least unwilling to disclose that to his readers.
Originalism requires doing the work. The work is hard, and there is never a guarantee that judges will always get it right, or always agree on what the historical evidence tells us. But it remains superior to the alternative, and its critics should really put in their own work before mischaracterizing it.