Takeaway #2: Originalism Is Not One of the Ten Commandments.

Supreme Court Building West Facade

To restate my earlier point, originalism is a theory, not an established tool of constitutional interpretation. It was introduced by conservative jurists and legal scholars about 40 years ago, which is a relatively short span of time within the 234-year life of our Constitution. The Federalist Society[1] made James Madison their icon and originalism the processional banner it carries in its effort to win over the minds of judges, and especially Supreme Court justices. It calls us to look backward to the 18^th century to find the answer to our future constitutional conundrums. Such a proposition assumes that at the time of the Constitution’s adoption, there must have been a common comprehension, understanding and agreement among its signees as to the meaning of all the words, phrases, sentences and paragraphs contained therein. To critics like me, it’s little more than a device to make us believe there is a settled original meaning within the Constitution that speaks to the resolution of all future cases involving constitutional law – and it co-incidentally happens to fall in line with the current-day thinking and beliefs of the Federalist Society. For me and all non-originalists, that’s a bridge too far.

This article is not a point-by-point refutation of originalism – such an exercise is too long and too boring. The books I listed in Takeaway #1 of this series convince me to assure you there are many flaws, faults and inconsistencies within originalism and its application. The title alone of Prof. Chemerinsky’s Worse Than Nothing: The Dangerous Fallacy of Originalism, speaks volumes.

Nevertheless, originalism is ballyhooed so much these days that a popular belief is arising that originalism, and its first cousin, textualism,[2] are the only legitimate methods of constitutional interpretation.[3]  While a genuine search for original meaning can be useful in constitutional interpretation in some instances, originalism should not be the sine qua non rule in every case. It is not a settled doctrine which enjoys common acceptance across a wide spectrum of legal and judicial scholarship. But it has become the guiding principle within the majority faction of the United States Supreme Court.

From the analyses on originalism in the aforementioned books, I noticed, to my complete surprise, two disturbing criticisms about the Supreme Court’s application of originalism. First, originalists embrace originalism when it serves their partisan ideological purposes, but they appear to work around it when it doesn’t. Second, the court’s apparent reliance on insubstantial historical research into the periods of history in which the Constitution and its amendments were adopted.

For example, when District of Columbia v. Heller (making private gun ownership a constitutionally protected right) was decided in 2008, its author, Antonin Scalia, bragged about it being the ideal exemplar of how originalism works. The majority claimed to have looked back to the late eighteenth century and determined that keeping and bearing arms, i.e., owning and keeping a firearm for personal use “has deep historical roots at the time the Second Amendment was drafted.”  Sounds convincing, but the problem is that the majority did not rely on sufficiently rigorous historical scholarship. Had it done so, it would have learned that the term “keep and bear arms” in the Second Amendment back then pertained to paramilitary service in providing for the nation’s common defense. Because there was no standing army at the time, well-regulated militias were considered essential to the security of an infant nation. Consequently, originalists missed the mark and elevated the modern-day, widespread purchase, collection, and possession of firearms to an almost absolute, no-exceptions right.[4] In the process it nullified the importance and effect of the first 13 words of the Second Amendment,[5] and allows a lone 17-year-old boy, armed with an AR-15-type rifle, to cross state lines and walk the streets of Kenosha, Wisconsin, to help bring peace and order to a civic disturbance, and in the process killed two men. In truth, I believe the majority on the Supreme Court, not James Madison, et al., created a constitutional right of private ownership and possession of firearms for personal protection because they wanted one. It was not content to leave the matter up to legislative bodies.[6]

Moving on, I’m curious as to how the six originalist-informed justices, known as the Supermajority, will interpret Section 3 of the Fourteenth Amendment when it considers the Colorado case disqualifying Trump from running for president in that state. Historians assert that the notion that presidents who commit, or aid and abet in committing an insurrection are disqualified from running for a federal office is clearly and squarely within the original meaning of the language used. Will the Supreme Court agree? My best guess is that it will not reach the question of the original meaning of Section 3. They will find that Congress, and not the states, determine the methodology for disqualification. Consequently, the court will rule that, because of the absence of such Congressional action, Colorado had no authority to remove Trump from the ballot. It will stop short from having to rule on the critical findings of the Colorado Supreme Court. One thing I know for certain: this court is not going to prevent Trump from running for president in Colorado, or any other state.[7]

Three justices, Thomas, Gorsuch and Barrett publicly claim to be originalists. Alito and Kavanaugh might as well come out and confess that they too are originalists. Roberts is a little more nuanced, but he’s in there with them.[8]  Sotomayor, Kagan, Jackson, and about 110 other justices over our nation’s history never made such a claim.

               The Takeaway: Originalism is a nice word to convince us that the Supermajority are not a bunch of ideological partisans.

Next: They’re Protecting the Wrong Minorities.

[1] The Federalist Society is a conservative and libertarian legal organization that advocates for a textualist and originalist interpretation of the U.S. Constitution.

[2] Textualism is a method of statutory interpretation that asserts that a statute should be interpreted according to its plain meaning and not according to the intent of the legislature, the statutory purpose, or the legislative history. Accordingly, they would have you believe that, despite the obvious, acknowledged omission of a comma, the phrase “Let’s eat kids” means the law of the land legitimizes cannibalizing our children.

[3] Because the root of originalism is “origin,” it has that certain Book of Genesis je ne sais quoi, and the public may be getting deceived into thinking originalism is holy and sacred. Remember when President Richard Nixon tried to elevate “strict constructionism” to gospel truth back in his day? Strict constructionism was simply a euphemism for “Don’t interpret the Constitution like the Warren Court did. Do it my way.” Originalism kind of has that same ring.

[4] It’s been suggested that the Supreme Court should have genuine history scholars on retainer if they’re going to continue to rely on the real original meaning of words and phrases.

[5] A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

[6] The framers of the Constitution left wide open, through the 10^th Amendment, the right of states to craft laws making private gun ownership a personal right. As such, guns can be more easily, and more reasonably regulated.

[7] There’s even the possibility that one or more of the liberals will join the Supermajority in deciding this case.

[8] The only former justice to claim to be an originalist was the late Antonin Scalia, who was one the initial proponents of the theory.