Critics of originalism don’t know their history, or Founding Fathers

 It was an eerie feeling for me to sit behind Judge Neil Gorsuch during his Judiciary Committee hearings. Here I was sitting behind my friend and coauthor as he was being vetted to replace my late friend and coauthor, Justice Antonin Scalia. Yes, I’ve written lengthy books with both men, and I know their legal philosophies pretty darned well.

One aspect of both men’s approaches to judging — “originalism,” as it’s called — has attracted polemicists to use the label as a scare tactic. So much demagoguery surrounds the word that it merits some clarification.

{mosads}People might wonder why Justice Scalia would write a prescriptive book on judging (“Reading Law”) with someone who had declared himself to favor same-sex marriage, to be ardently pro-choice, and to favor repeal of the Second Amendment. The answer is that because I’m a textualist and an originalist, my personal views on these matters are quite irrelevant. (Sound familiar? You hear Judge Gorsuch say that again and again.)

If I were a judge, I wouldn’t be enacting my own visions of wise policy — that’s not what a good judge does — but instead I’d be applying a “fair reading” to the statutory or constitutional words.

Only if I were a “pragmatist” or a “Changing Constitutionalist” would these private views become important. Then I wouldn’t be interpreting a document. Instead, I’d be declaring new policies that have no discernible foundation in the Constitution itself. I’d be looking within my heart and soul to consider what I believed to be fundamentally important. There I might discover new rights that nobody had ever before seen.

In a March New York Times op-ed, law professor Ken Levy had the temerity to say that “Justice Scalia failed to realize that textualism is self-undermining.” His support for that libel? “Nowhere does the Constitution explicitly state that textualism, no less than originalism or any other method, is the correct theory of constitutional interpretation.”

This is just silly. Nowhere in Shakespeare is it said that future generations may well need a glossary to understand some of the dialogue.

Perhaps worse was Jill Lepore’s assertions in the New Yorker last week that “the framers weren’t originalists” and that “originalism, a term coined in 1980, asks judges to read only the books on a single shelf in the library: the writings of the Constitutional Convention and the ratifying conventions, the Federalist Papers, and a handful of other newspapers and pamphlets.” 

Although there was no name for originalism in the 18th century, the idea was well-enough understood. The political philosopher Emmerich de Vattel — whose influence on Benjamin Franklin, George Washington, and other Founders was well known and “timely,” according to Franklin, since it reached them in 1775 — wrote in his Law of Nations: “When an ancient act is to be interpreted, we should then know the common use of the terms, at the time when it was written.” It’s a matter of contemporary linguistic usage—all publications of the period—not just one shelf.

That was the settled view of legal interpretation. In 1796, Justice James Iredell of the Supreme Court wrote in an opinion: “We are too apt, in estimating a law passed at a remote period, to combine in our consideration, all the subsequent events which have had an influence upon it, instead of confining ourselves (which we ought to do) to the existing circumstances at the time of its passing.”               

The essence of originalism is that written legal instruments endure. James Madison, one of the architects of the Constitution and author of the Bill of Rights, correctly stated the gist of originalism: “What a metamorphosis would be produced in the Code of the law if all its ancient phraseology were to be taken in its modern sense.”

The very fact of having a written constitution meant that we had fixed its meaning in permanent form, until amended (by the mechanisms provided in that very constitution). That wasn’t just the prevalent notion among the founders — it was the only notion of which any contemporaneous or nearly contemporaneous trace can be found.

Only by sheer sophistry can it be argued, as it was by Professor Levy in the New York Times, that “true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.” This assertion comes, of course, from the same writer who asserts that “Justice Scalia also failed to realize — or at least admit — that textualism and originalism rarely determine a unique outcome.”

These assertions don’t square with the facts. In the preface to “Reading Law,” Justice Scalia and I plainly wrote: “Textualism will not relieve judges of all doubts and misgivings about their interpretations. Judging is inherently difficult, and language notoriously slippery. But textualism will provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law.”

Judge Gorsuch said as much during his Judiciary Committee hearings. Along with many other judges and scholars, Judge Gorsuch has explained the theory and practice of originalism with great clarity. It’s a shame that his critics don’t seem to have read or understood those explanations and instead present ill-informed and false caricatures.

Bryan A. Garner, editor in chief of Black’s Law Dictionary, is Distinguished Research Professor of Law at Southern Methodist University and president of LawProse Inc.

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