The Origin of Specious

Originalism, the school of constitutional interpretation currently modish among conservative lawyers and judges, is not so much an idea as a legal-industrial complex divided into three parts—the academic, the jurisprudential, and the political. In its first part, originalism is an academic pursuit, one that a large number of law scholars have embraced with gusto. A search of legal databases revealed that at least 600 papers have been published on this topic since Ronald Reagan’s attorney general, Edwin Meese, proclaimed it as dogma in 1985—more scholarship than any living creature should have to read, and enough that anyone who criticizes its tenets can always be accused of not knowing the literature. 

If, however, originalism were no more than an academic fad, like quoting Roland Barthes or Michel Foucault, we the people would not need to concern ourselves overmuch with it. But the second branch of originalism is its use by judges as a well-developed set of rhetorical tropes by which conservative judges justify their decisions, particularly those that overturn established precedent or further anti-democratic goals. This branch is something far more consequential. 

The third strand seeks to maintain public support for conservative judges in general, and for the current nakedly partisan Supreme Court supermajority in particular, by claims of fidelity to something called, variously, “original intent,” “original understanding,” or “original public meaning,” which to nonlawyers tends to be viewed as the legacy of the nation’s Founding Fathers. 

This third aspect of originalism—the claim that Americans must accept it as the only legitimate way to divine the meaning of constitutional text—is in many ways the most important. Its role is to overawe the opposition: You who criticize do not oppose us, the Court Donald Trump assembled by banana republic trickery; you oppose James Madison, Thomas Jefferson, Alexander Hamilton, and all the secular gods of our civic religion. 

The authors of the three books under review—one, Stephen Breyer, a retired Supreme Court justice; the second, Erwin Chemerinsky, dean of the University of California Berkeley School of Law; and the third, Madiba K. Dennie, a prolific legal commentator and former counsel at New York University’s progressive Brennan Center for Justice—all aim at affecting the struggle for the public mind. The authors seek to persuade nonlawyers that originalism’s necromancy is not the only way to read the Constitution—or even, indeed, a valid way to decide cases at all. 

The controversy over originalism is not precisely a struggle of ideas as such. Originalism represents the use of political power to force others to adopt prescribed ideas; it uses financial and political carrots (and a few sticks), far more than argument or persuasion, to impose its new orthodoxy. That brute force version of legal theory is why bench and bar today cannot debate the simplest point of constitutional law without engaging in various forms of stylized speculation about the mental processes of the dead. As currently practiced in the United States, originalism is the product and instrument of power far more than of disinterested learning and legal principle. 

Judges may discuss and cite “originalist” academic work, or may deploy in their opinions their own ideas about what originalism means—but they are not using the term the way lawyers are taught to use facts or precedent. Judges use the claims of originalists as a rhetorical facade to hide their own preferences about how the U.S. should be governed.  

So the struggle to characterize originalism in the public mind is the legal struggle of our time. And, since what matters about law—the reason we study and practice and fear it—is its current utility, the way we respond to questionable claims of legal authority can be quite literally a matter of life or death. 

The authors of these books zero in on the question originalists have yet to answer fully: How do we the living know what a group of long-dead white men thought? And even if we could know what was in their minds, why should we bloody well care? Does pretending to be helpless agents of Golden Age prophets make our lives better? Is it possible that the claims originalists make, and their inescapably retrograde implications for politics and law, are a complicated nightmare from which we can awake?

Not to hide the ball, I think the answer is yes, and so do the authors of these books.

We can deal first with the organized aspect of originalism: the massive academic enterprise—the powerful institutes at think tanks and universities, the dozens of annual symposia, conferences, festschrifts, monographs, and essay collections that celebrate new “discoveries” either in the correct originalist application of constitutional doctrine or in the proper methodology for making such discoveries, and that in the process suggest sweeping changes in the ways in which Americans live today. Conferences and symposia on the subject abound, and countless tenure grants and endowed chairs have been secured by those who skillfully deploy its intellectual engines.

This growth of the originalist on-campus octopus is not the product of chance. A long and growing list of law schools and dedicated think tanks bespeaks the generosity of wealthy donors eager to roll back this or that aspect of the 20th century’s constitutional revolution. Donor money helped establish, and continues to influence, George Mason University’s law school (renamed in 2016 the Antonin Scalia Law School); it has heavily influenced teaching and hiring at Catholic University and Notre Dame and other law schools; it generously funds the Center for the Study of Constitutional Originalism at the University of San Diego School of Law, the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, and the Claremont Institute for Constitutional Jurisprudence (whose counsel was the now-disbarred John Eastman)—a list that is by no means exhaustive. There are, needless to say, no comparably wealthy centers for legal pragmatism, labor rights, or critical race theory; over time, money and power bend the arc of legal theory. 

The fecundity of this branch of the movement is astounding. As long ago as 2011, Lawrence Solum, now a professor at the University of Virginia School of Law, provided a taxonomy of originalist theories that included no fewer than, by my count, seven strands—“original intention,” “original understanding,” “original public meaning,” “original application,” and “original methods” originalism; “living originalism”; and “the new new originalism.” 

Some of these new versions result from moments when the central claim of the movement—that decisions in the past by the dead can and should bind the living in the present—has been challenged and seemingly refuted. For example, Ed Meese’s claim that the “original intent” of the Framers binds us today quickly ran up against the unanswerable objection that we cannot know the intentions of the dead; this led to the notion of “original understanding,” which foundered on the similar insight that we can’t know the understanding of those who ratified the Constitution any more than the intentions of those who drafted it. This sparked various claims for new and different originalist methods—using the “original methods” the Founders would have used to reconstruct a meaning, or creating an imaginary founding mentality to correct for the alleged political ignorance of actual people in the past. The movement survives each seeming challenge and returns with fresh claims and admirable energy. An outsider must surely be tempted to conclude that so many brilliant and devoted thinkers cannot possibly be busying themselves with a mistaken quest. 

But scholars can be assiduous, creative, and quite sincere—and also wrong. The originalist academic machine, in fact, resembles what Thomas Kuhn, in his pathbreaking work The Structure of Scientific Revolution, called “normal science”—research carried out within the confines of an established paradigm, or set of assumptions about the world that, Kuhn says, has the authority of “an accepted judicial decision in the common law.” 

As a paradigm, originalism operates on three assumptions that may only be questioned if they are reaffirmed at the end. The first is what Lawrence Solum called “the fixation thesis”—the idea that “original meaning was fixed or determined at the time each provision of the constitution was framed and ratified.” This fixed meaning creates the so-called constraint principle—the idea that originalist methods constrain judges who make a commitment that “constitutional doctrine must be consistent with original meaning absent very weighty reasons.” 

To summarize in less formal language: Each part of the Constitution has one correct meaning that was fixed at the time it was written, and a conscientious judge can determine and apply that meaning to contemporary cases regardless of their own view of the Constitution or the realities of contemporary society. (If this mind-set bears a strong resemblance to contemporary fundamentalist biblical interpretation, that is no coincidence.) But there is a third part of the originalist paradigm, usually not stated, what I call the “intelligibility thesis”—the assumption that conscientious judges can use some dependable method to find that “fixed” original meaning. 

Within this paradigm, the busy academics of the movement undertake what “normal” scientists do—and that is, as Kuhn writes, demonstrating, over and over, that the existing paradigm is correct. Works that do not reaffirm the correctness of the paradigm, in normal science, are shown to be in some way defective.

But how is that normal science to be done? In fact, originalism has no agreed-upon methodology. The freewheeling nature of the inquiry means that originalist techniques can generate a near-infinite set of contradictory claims about the past. The valid claims are those that show the first two assumptions to be correct. 

Originalists like to claim that this work is empirical, meaning that it arises from a direct encounter with evidence rather than from authority or preference. But if that were so, its practitioners would not produce the proliferation of meaning mentioned above. Originalist methodology is like a newly invented instrument for measuring temperature that produces a result varying from 0 degrees Fahrenheit to 120 degrees, according to the political beliefs of the user. 

But properly understood, the object of normal science within a paradigm is to produce results that reaffirm that the paradigm is valid. Thus a state of emergency arises when originalist research generates an anomalous result. For example, it seems pretty clear that Brown v. Board of Education, with its finding that southern-style school segregation violates the equal protection clause, does not follow from the original understanding of the Fourteenth Amendment. 

The originalist professoriate declared this an emergency—evidence must be found to reverse that conclusion. A number of prominent scholars rushed into print with versions of originalism that varied its assumptions (fixation, intelligibility, and constraint) and with a very few tweaks cleared up the problem.

But that very quest violates the movement’s basic command, which is, If you don’t like the “original meaning” of the Constitution, you must seek change through constitutional amendments rather than judicial interpretation. In fact, judges must not even consider the practical consequences of their decisions; that would suggest that the meaning of the Constitution varies on the basis of its present utility. This is perilously close to “living constitutionalism,” which is to the orthodox originalist what the Gnostic heresy was to the fathers of the Christian Church. Thus the realization that school segregation was constitutional should have been an end to the matter—hard cheese for Thurgood Marshall, take it up with Article V. 

The Brown problem is cosmetic; it relates to the third, public-facing, strand of the movement. The public sees the case as one of contemporary constitutionalism’s shining moments; to give up its moral luster would be a near-fatal marketing mistake. 

More dramatically, last year the University of Chicago professor William Baude and the University of St. Thomas professor Michael Stokes Paulsen, both conservatives of impeccable pedigree, concluded in an exhaustive originalist inquiry that the Fourteenth Amendment’s disqualification clause rendered Donald Trump ineligible to the presidency. The response of the originalist hierarchy was galvanic: The thesis could not be true, and therefore it was not true. This is characteristic of originalism as a political, rather than intellectual, movement. The “fixation” and “constraint” theses, in fact, do not originate out of rigorous scholarship but out of an exercise of political power. 

Judges throughout history have consulted American history and the legacy of the Framers; but those opinions are not the parents of originalism as it is practiced today. Today’s movement arises from a speech delivered in 1985 to the American Bar Association’s annual convention by Ed Meese, then the attorney general. That speech laid out “the Administration’s approach to constitutional interpretation”—one based in the needs of right-wing politics rather than any “empirical” inquiry into the past: 

It has been and will continue to be the policy of this administration to press for a Jurisprudence of Original Intention. In the cases we file and those we join as amicus, we will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment. Within this context, let me reaffirm our commitment to pursuing the policies most necessary to public justice. We will continue our vigorous enforcement of civil rights laws; we will not rest till unlawful discrimination ceases. We will continue our all-out war on drugs—both supply and demand; both national and international in scope. We intend to bolster public safety by a persistent war on crime. We will endeavor to stem the growing tide of pornography and its attendant costs, sexual and child abuse. We will be battling the heretofore largely ignored legal cancer of white-collar crime; and its cousin, defense procurement fraud. And finally, as we still reel as a people, I pledge to you our commitment to fight terrorism here and abroad.

The claim to favor a “Jurisprudence of Original Intention” thus folded seamlessly into the tenets of the Reagan-era Republican platform. Meese demanded a change in judicial practice because of political dissatisfaction with courts that had blocked demands of the conservative movement. 

The well-funded imposition of originalism that followed bears comparison to the Soviet Union’s encounter with Trofim Denisovich Lysenko, the Ukrainian agricultural biologist who convinced himself, and then the Soviet political hierarchy, that the inherited characteristics of a species of plant or animal could be permanently altered by subjecting one generation of its members to new conditions. 

Modern genetics decisively rejects this idea, but, coming at the dawn of Stalin’s Five-Year Plans, Lysenko’s thought intrigued the communist hierarchy: Right-ho, comrades, one good hard push and we’ve got the New Soviet Man! A legion of apparatchiks happily carried on Lysenkoist “normal science”; the real-world result was scientific stagnation and agricultural disaster for the USSR. 

When originalist concepts are wheeled into action by conservative judges, they demonstrate “constraint” by annihilating precedents that stand in their movement’s way. The most important originalist decisions by the present conservative Supreme Court, District of Columbia v. Heller, New York Pistol and Rifle Association v. Bruen, and Dobbs v. Jackson Women’s Health Organization, deploy the language of originalism in a merciless slash-and-burn march through established precedent. 

The three authors all take pains to expose the ricketiness of the originalism deployed in these major decisions; this, it has to be said, has a certain fish-in-a-barrel quality. Thus Stephen Breyer, in retirement, is clearly still smarting from the majority’s reckless decision in Bruen, which for the first time established an individual “right” to carry firearms in public (allegedly for self-defense). The majority opinion by Clarence Thomas claimed that “history and tradition” clearly established this right; but, as Breyer notes, the government parties and their amici produced a vast panoply of evidence of English and American laws that restricted or banned this supposed right. The majority, as graceful as Fred Astaire, evaded every one of these laws:

Some, such as England’s thirteenth-century laws, were too old. Some, such as New York’s [century-old Sullivan pistol permit] law, were too recent. Some did not last long enough. Some applied to too few people (such as colonial laws present in only three of the thirteen colonies). Some did not involve licensing and applied only after an armed individual was determined to have threatened the peace. Some resembled New York’s laws only in respect to concealed carrying but did not regulate open carrying. 

With similar vigor, Chemerinsky massacres Shelby County v. Holder, which used a supposed principle of  “equal sovereignty” among the states to invalidate the crucial pre-clearance section of the Voting Rights Act of 1965: 

It is impossible to arrive at this principle from an originalist perspective. The text of the Constitution does not mention it. Nor can the original meaning of the Fourteenth and Fifteenth Amendments be seen as embodying such a requirement for equal state sovereignty. The Congress that ratified the Fourteenth and Fifteenth Amendments imposed Reconstruction on the South, literally creating military rule over former rebel states. It is hard to imagine a clearer instance of Congress treating some states differently from others … The five most conservative justices, who regularly espouse the need for adherence to the text and original meaning, invented a constitutional right for state governments that appears nowhere in the text and is contrary to the original understanding of the Fourteenth Amendment. 

Dennie ridicules the “convoluted, over-the-river-and-through-the-woods” reasoning by originalists in their discussion of another shining moment of the Warren Court, the decision in Loving v. Virginia striking down the Commonwealth’s Racial Integrity Act forbidding marriages between nonwhites and whites. The originalist view is that anti-miscegenation laws were  unconstitutional because they restricted Black people differently than white people:

They reason that the Fourteenth Amendment constitutionalized the Civil Rights Act of 1866; the Civil Rights Act of 1866 recognized that Black people have the same right as white people to make and enforce contracts; dictionaries commonly in use in the 1860s confirm that “same” was understood to mean identical rather than different but equivalent; and marriage contracts are contracts.

Besides being convoluted, Dennie notes, it is “low-key insulting as a Black person and embarrassing as an attorney to think my legal equality depends on tortured analysis of mid-nineteenth-century contract law rather than a simple recognition of our shared human dignity.”

A reader can admire the deadly accuracy of these polemics. But falsification, even thorough falsification, does not by itself destroy error. Antonin Scalia in 1988 taunted his adversaries with the neatness and seeming explanatory power of originalist theory: 

Nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that “you can’t beat somebody with nobody.” It is not enough to demonstrate that the other fellow’s candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote “non-Reagan,” it is not very helpful to tell a judge to be a “nonoriginalist.”

Each of the authors attempts to rise to this challenge. Non-originalism is the precise alternative method Chemerinsky offers. To him this means combining 

the Framers’ intent if it can be known, the original meaning to the extent that it can be ascertained, the structure of the Constitution, historical practices, constitutional and social traditions, precedent, and what is best for society. All those who interpret the Constitution—originalists and non-originalists alike—seek to advance what they see as the objectives of a constitutional provision, but for non-originalists these objectives are stated in a general as opposed to a very specific way.

Breyer, in keeping with his longtime advocacy on the bench, offers “purpose based” judging, based on America’s chief contribution to legal theory, pragmatism: 

A good pragmatic decision must take account, to the extent practical, of the way a proposed decision will affect a host of related rules, practices, habits, institution, as well as certain moral principles and practices, habits, including the practical consequences of the decision, such as how those affected by the decision will react … That judge is also pragmatic when he or she knows that (or shrewdly guesses that) overall the decision will have a positive effect upon those to whom it applies (or to Americans in general), taking account of the institutions, practices, and beliefs that make up our legal web of beliefs.

Finally, Dennie offers her own proposed method—“inclusive constitutionalism,” which 

calls on lawyers and laypeople alike to collectively think about and interpret the law so we fulfill the Constitution’s democratic ideals in such a way that we may all be free. The theory encourages us to define legitimate legal interpretation as that which takes the liberatory mission of the Reconstruction Amendments seriously—and to apply those equitable principles in the real world. 

These theories have various degrees of appeal, though all of them face Scalia’s challenge—which was, remember, not that a partial or overcomplex theory is invalid, but that it is easy to defeat in debate by the advocate of one that is simple, right or wrong. And as I read the authors’ alternative schemes, I found myself rebelling at the whole idea of constitutional theory as something to be found and applied by judges. 

There is, in fact, nothing in our Constitution, and damned little in our history, to suggest that we the people select judges for their theories of the Constitution or their visions of America. Instead, to quote Scalia against himself, “This Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here.” That work (as anyone familiar with actual law can see) is not to create and impose elegant theories on the disorderly mass of our law, but rather to use the usual judge’s tools to make legal decisions about specific patterns of facts. Both Chemerinsky and Breyer provide useful lists of those tools, but first among them is precedent, for which originalists reserve particular scorn.

Judging is, in fact, far more like carpentry than like science. Indeed, a judge interpreting a constitution in its third century is like a carpenter called in to renovate some part of an early Federal-era house. I have hired skilled craftspeople to do renovations on my house; I did not ask them to imagine their perfect house and then to tear down the parts of mine that don’t conform to that imagination. Scientists needed counter-theories to replace the idea of phlogiston or of the heliocentric universe; carpenters don’t need a theory of building. They need skill, care, well-maintained tools, and immemorial techniques to build on the level and the square. 

Today’s conservative majority does not limit itself to lawyers’ work; it is building a legal house of its fancy on the sand of pseudoscience. Eventually, and perhaps catastrophically, the rains of reality will fall, the winds of change will blow, and great will be that house’s fall.