Constitutional originalists have been doing a victory lap after Ketanji Brown Jackson declared, in her confirmation hearing, “I believe that the Constitution is fixed in its meaning. I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.” This, Georgetown Prof. Randy Barnett declared, “legitimates originalism. . . . she has affirmed that it is the norm.”
Other commentators more soberly noted that originalism now takes so many different forms that it no longer means much. It certainly does not entail the conservative political implications that the early proponents of originalism, such as Edwin Meese and Robert Bork, hoped for. Jackson was signaling to her new colleagues that she speaks the same language as they, but that doesn’t limit what she will say. You can say almost anything in original-speak.
Originalism has three central problems. It doesn’t really constrain judges. Even if it did, it would do so randomly and chaotically. But in fact, as it has been deployed in the Supreme Court, it is a fraud: The self-styled originalists don’t really care about historical evidence. They manipulate it to reach the results they find politically congenial, and then parade their virtue by saying they are merely following the law.
Originalism promises to constrain judicial discretion. If you read the Constitution, though, you’ll find that there are lots of broad terms that unavoidably demand judgment in interpretation. How can you interpret the ban on “unreasonable searches and seizures” – even given its original meaning – without thinking about what’s reasonable? Or “equal protection of the laws” without thinking about which inequalities are malign? The most sophisticated originalists now admit that there’s plenty of discretion in the application of original meaning.
But consider some originalists’ best-case scenario, in which new research (and there is, in the academy, a busy army of originalist scholars) so completely clarifies the meaning of the Constitution that it becomes a rigid set of rules. (Some who demand to know Jackson’s “judicial philosophy” seem entranced by the same vision.) As I observe in a recent Arizona Law Review article, academic historians are constantly revising our understanding of the past. There are great professional rewards for those who successfully attack the conventional wisdom. Someone is always trying.
Consider the question of congressional power, about which there is massive ongoing research. If we learn that the original meaning is different than we had previously thought, then we must upend our legal system in response. At least until the next article comes along. And it will. If some later professor shows us that the first one was wrong, then we must lurch back to the law we had before. Large federal programs may disappear and reappear, depending on the state of the latest scholarship. Historically faithful originalism thus would introduce random chaos into the law. This is appealing only to radical libertarians who applaud anything that incapacitates government.
But that is assuming that it is honestly practiced. That’s a bold assumption. What do you suppose the framers of the Civil War amendments – which they enacted, in part, to legitimate their continuing military occupation of the defeated Confederacy – would think of the Court’s 2013 decision, embraced by all its self-styled originalists, that Congress has no power to remedy voting rights violations unless the Court agrees that racism is a persistent problem? Originalism does offer some constraints. The Court has ignored them.
It is hard to publicly call out this fakery. History is complicated. One needs to get into the details in order to show that the judges are cheating. Sometimes, though, the fraud can be explained briefly. Consider Justice Samuel Alito’s recent concurring opinion purporting to show that original meaning of the free exercise clause demands that religious objections to laws be accommodated in all but the most urgent circumstances.
He has recently deployed this doctrine to attempt to exempt some religious members of the military from vaccination against COVID-19. His historical evidence is so weak, and so radically misconstrues his sources, that I can (and do, in a new paper) explain it all to you in 14 pages. He anachronistically assembles the words like Lego pieces, to infer a rule that was never imagined by anyone at the time of the framing. Then he cherry-picks historical facts to support his narrative. Constraint this ain’t.
There’s no avoiding the exercise of judgment in interpreting the law. That is why we call them judges. Good judgment has been sadly lacking among Republican-appointed justices, which may help to explain the urge to change the subject by talking about originalism and judicial philosophy.
Jackson’s testimony shows that she understands all this very well. “I do not believe that there is a living Constitution in the sense that it’s changing, and it’s infused with my own policy perspective or the policy perspective of the day,” she said. “When you are interpreting the Constitution, you’re looking at the text at the time of the founding and what the meaning was then as a constraint on my own authority. I apply that constraint.”
But it’s not an absolute constraint: “looking at those words [is] not enough to tell you what they actually mean. You look at them in the context of history. You look at the structure of the Constitution. You look at the circumstances that you’re dealing with in comparison to what those words meant at the time that they were adopted.” That’s what all the justices do. Only some are willing to admit it.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.