On Originalism

Regular readers know I've had a long-time interest in the Supreme Court and its dance with the U.S. Constitution.

I'm not sure when my interest became more than casual, but I suspect it was the mid-1980s while I lived in Washington, D.C., and probably because of the Bowers v. Hardwick decision. I don't have a lot of clear memories of reading newspaper stories, but I remember reading the Washington Post coverage of that, understanding the basics of the case, and seething at what it meant for LGB (no T or other letters at the time) people and civil liberties generally.

It's a constitutional question, as are many before the Supreme Court. Not long after, I was involved with an organization that cared a great deal about Roberts. v United States Jaycees, in which the court had ruled the all-male Jaycees organization must admit women, and in which Sandra Day O'Connor established a test to determine when membership exclusion was allowed as part of expressive speech. 

Since then I've kept up pretty well as Supreme Court members have changed, and followed cases. My interest has been strongest over the past 25 or so years, though. I was barely paying attention when Ruth Bader Ginsburg was placed on the court, since it coincided with the birth of Daughter Number Three-Point-One.

I've disliked the concept of originalism since I first heard of it, which was probably in a newspaper commentary in the 1980s, probably associated with Antonin Scalia. My natural intellectual response was that times have changed and we can't be bound in every way by what "the Founders" thought. I didn't do as good a job of critiquing the concept as Elie Mystal does in his book (see link below).

I've written a few posts about constitutional law specifically, but I don't have the background or bandwidth to write about legal philosophy. So when I came across a Twitter thread by a philosophy professor named John Holbo, I read the whole thing and was grateful to him.

First, he points out that originalism (also called textualism) only arose as a common approach to constitutional law after 1980, and didn't become the big thing it now is until after 2000. It has become a partisan issue as well. It's not the only way to go about things: There are a number of other approaches to constitutional questions (which are summarized in this lecture by Cass Sunstein).

One quote from Holbo:

Republicans like to mock libs as perennial fashion victims of academic nonsense. Imagine if the only thing that Dems could all agree on was that they wanted to make public policy according to Derrida's "Of Grammatology". What a world!

But of course it's Republican-appointed justices who have followed the fashion, if you can call it that, of originalism. Holbo thinks Republicans don't care about the original meaning; they're after the results it gives. Another quote:

Originalism is wonderfully serviceable not just as a likely vehicle for securing steady, on-balance policy wins for conservatives  – it's a lever for 'legislating from the bench'. It is also a key piece of apparatus for coalition-building. Fusionism – traditionalism + libertarianism – was, for decades, glue that held together the conservative movement. Originalism is fusionist glue, in hermeneutic form. It is attractive because it promises, potentially, big wins BOTH for traditionalists AND libertarians.

Of late we have seen Republican-appointed justices abandon originalism when it suits their purpose, which makes it clear that it's a prop they bring out when it suits them — which is most of the time, given that that 90% or more of the population was excluded from having a say in writing the Constitution. The Reconstruction amendments, however, don't, and so they've managed to twist those out of their "original" meaning.  


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One of my most recent posts on related topics was a review of Elie Mystal's book Allow Me to Retort.

In another past post, I speculated on what ages my ideal society would use to begin various adult rights and responsibilities

A few of the other past posts:

It wasn't reasonable to beat Dethorne Graham

Big states, little states 

Amar loses his way on Mapp