Bench Memos

Law & the Courts

Senator and History Professor Team Up for Astoundingly Incompetent Attack on Originalism

In an Atlantic essay yesterday, Senator Angus King Jr. and Boston College history professor Heather Cox Richardson combine to make their best case against originalism. The result is a mess to behold.

Let’s take a look at the parade of errors that King and Richardson make:

1. Here’s how the authors describe the originalism that is “[m]ost famously associated with the late Justice Antonin Scalia”:

In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn’t clear, then apply what was in the minds of the 55 men who wrote it in 1787.

This passage contains two gross errors and one more subtle one.

First, the public-meaning school of originalism—the one that Justice Scalia was “most famously associated with”—does not ask “what was in the minds” of the drafters of constitutional text. It instead aims to discern the public meaning of the text at the time it was adopted.

Second, the authors seem to claim that in interpreting unclear text of later-adopted amendments, originalists will look to what the Framers thought “in 1787.” I might charitably dismiss this absurdity as sloppy drafting, except that the authors themselves later assert: “If the Framers didn’t think it, it’s not allowed.”

Third, the notion that there is some “plain meaning of the text” that can be discerned without at least implicit resort to originalist principles is mistaken. The authors cite as one supposed example of plain meaning the requirement that the president must be at least 35 years old: as they put it, “‘35’ means, well, 35.” (Set aside that the Constitution actually says “thirty five,” not “35.”) How do we know that this is 35 in base 10 rather than 35 in base 6 or in base 12? Because we know that base 10 was the public number system at the time of the Framing.

2. Applying their cartoonish misunderstanding of originalism, the authors contend that originalism yields the conclusion that the Air Force is unconstitutional because it’s not mentioned in the text and the Framers likely didn’t “have in mind the Air Force 115 years before the Wright brothers.” They seem to think that this is their great gotcha.

The authors’ argument fails even on its own confused terms. They claim that the Constitution “doesn’t say ‘armed forces’; it explicitly says ‘Army’ and ‘Navy.’” But the Constitution in fact confers on Congress the power to “raise and support armies” (plural), and the authors provide no reason not to regard the Air Force as an aerial army.

More importantly, originalism is not hypertextualism or strict constructionism. As Justice Scalia put it (in A Matter of Interpretation), “I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Scalia (like most, if not all, originalists) agreed with Chief Justice Marshall’s originalist argument in McCulloch v. Maryland (1819) that in setting forth Congress’s powers the Constitution by its nature “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

In other words, the authors’ own argument for the constitutionality of the Air Force is entirely compatible with originalism, even though their misunderstanding of originalism prevents them from recognizing that.

3. The authors’ contention that originalism “pretends to make the work of the Supreme Court look straightforward and mechanical” likewise rests on their own mistaken caricature. Originalist interpretation is a craft—something that can be performed well or poorly—and as Scalia openly acknowledged “in some cases historical inquiry into the original meaning may be difficult.” (The Essential Scalia, p. 21.)

4. The authors contend that originalism is “an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public.” Here they combine bad writing (how do you drum up a cloak?) with multiple errors.

Some originalists might well be at war with the New Deal. But if the authors are going to claim that such a war is characteristic of the originalism “most famously associated” with Justice Scalia, where is the evidence in Scalia’s record that he sought “a return to the legal environment of the early 1930”? His view that Congress did not have the power to impose Obamacare’s individual mandate did not remotely challenge Congress’s general power to enact Obamacare, much less the other items (business regulation, Social Security, Medicare, environmental protections) on originalists’ supposed hit list. Indeed, in signing on to the Chief Justice’s dissent in Obergefell v. Hodges, both he and Justice Thomas (the only other self-identified originalist on the Court at the time) condemned Lochner v. New York (1905) and the “unprincipled tradition of judicial policymaking” that it characterized.

Tellingly, King and Richardson try to smuggle “a woman’s right to choose” onto their list of governmental powers that originalists would “straitjacket.” But it’s Roe v. Wade and its fiction that the Constitution prohibits the states from broadly regulating or prohibiting abortion that impose the straitjacket. The position of Scalia and most other originalists is that the Constitution leaves it to the people of each state whether and how to regulate abortion.

Far from having been developed “somewhat recently,” originalism dates to the Founding and beyond. In the words of one legal historian: “Before the triumph of modern judicial power in the twentieth century, constitutional interpretation was understood as the ascertainment and application of the fixed, unchanging meaning of the written Constitution.” (Johnathan O’Neill, Originalism in American Law and Politics 12.)

5. The authors seem to imagine that so-called living constitutionalism imposed by the Court is the only available means by which our society can adapt to changing circumstances over time and “advance[] in our understanding of the essential elements of human dignity.” They even make this amazingly ill-informed claim:

The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers didn’t think it, it’s not allowed.

If that’s not awful enough, here’s the grandiose passage that closes the piece (and also serves as its subtitle):

The Constitution should be the sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own.

This confusion, so typical of advocates of living constitutionalism, utterly ignores the broad play that originalism gives to the democratic processes to adapt to changing circumstances and to adopt evolving understandings of the “essential elements of human dignity” and of “our ideals and aspirations.” On so many of the great culture-war issues, such as abortion and marriage, the originalist position that Scalia advocated left matters to the democratic processes to be worked out and revised over time.

Would the authors really prefer that conservatives, instead of being originalists, adopt and impose their own conservative version of the living Constitution?

6. Without taking account of, much less refuting, actual arguments made by originalists (arguments that I present in this essay), the authors simply assert that Brown v. Board of Education and Loving v. Virginia “explicitly fail the originalist test.” Never mind that as early as 1880—a mere twelve years after ratification of the Fourteenth Amendment—the Supreme Court in Strauder v. West Virginiaread the Fourteenth Amendment as “declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.”

7. The authors invoke Jefferson against originalism without even acknowledging that he famously opposed the very idea of a “perpetual constitution”—and that he did so on the understanding that originalism would govern the interpretation of a constitution. It’s precisely because the original meaning of a constitution is binding that the moral question arose in Jefferson’s mind “whether one generation of men has a right to bind another.” On the premise that the “earth belongs always to the living generation,” Jefferson argued that “[e]very constitution then, and every law, naturally expires at the end of 19 years.”

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