Yes, I know this is my second post in a row about Gorsuch. I figure, when a guy is going to spend four decades on the Supreme Court, he’s worth talking about.
Let’s talk verbs for a minute: action words! Think about the difference between “inventing” and “discovering” If you’ve invented something, then you’ve created something new: something that did not exist before: so before J.K. Rowling invented it, Hogwarts did not exist. Whereas we say that Alexander Fleming discovered penicillin: that mold was there before, all he did was find it. Novelists, painters, sculptors, architects, and even engineers create things. Scientists discover things.We talk about our branches of government with the same words: Legislatures make policy. Judges find the law.
We run into problems however, when someone is inventing/creating something but claim to be discovering it. This is the problem with originalist jurisprudence. They think they are finding something but they are really creating something.
Quick recap from my last post: Gorsuch is an advocate of “originalist” jurisprudence. He wants judges to base decisions on “text, structure, and history.” The alternative, he claims, is that judges don’t discover something that binds their decisions and they simply act by legislatures and make policy based on their own personal preferences. The danger is that legislatures are accountable to the people and judges are not. Therefore, one needs to be an originalist or it is “judges gone wild” and we succumb to the rule of unelected, anti-democratic judges: “Mass hysteria!” We traced how originalists argued against Brown for almost two decades before abruptly changing their minds because of political realities and thus betrayed the methodology they claimed to hold.
Let’s pick up the story at that point. Bork founded what historian Jonathan Gienapp, in a terrific post which you should go read in its entirety, calls “Originalism 1.0” Turns out that the kinds of history that could discern the “intent of the framers” was just bad history:
Historians lambasted originalists’ shoddy historical work, for engaging in what was derisively called “law office history,” a term used to describe what lawyers did when they both cherry-picked evidence and otherwise ripped it from its operative historical context. The past, historians insisted, was deeply complex, requiring more careful study than originalists were willing to dedicate
Finding out the intent of the 55 framers of the constitution or the 1700 attendees of the Constitutional Convention was simply impossible. And then there was this problem:
Meanwhile, legal scholar Jefferson Powell, in one of the most cited law review articles of the decade, challenged originalism on empirical grounds, contending that the framers’ original intent was actually that the Constitution not be interpreted in accordance with original intent. Originalism, if followed faithfully, thus canceled itself out.
But then along came Antonin Scalia, whose seat Gorsuch is hoping to fill on the Court. Scalia just threw in the towel on all that hard historical research. Gienapp explains what he calls “Originalism 2.0”:
Rather than attempting to recover the subjective intent or understanding of real eighteenth-century individuals—be it the framers who drafted the Constitution, the ratifiers who approved it, or the broader public who made sense of it—originalists began targeting the document’s so-called public meaning. Public meaning has been understood in various ways, but, to quote leading originalists John McGinnis and Michael Rappaport, it references “how the words of the document would have been understood by a competent speaker of the language when the Constitution was enacted.” In singling out public meaning, interpreters no longer had to worry about parsing multiple intents or pinning down the elusive relationship between the Framers’ personal thoughts and what they wrote in the Constitution. There would be no more “channeling the Framers”—an inherently subjective exercise. Originalists could instead focus on deciphering something they claimed was “objective”: what the constitutional text would have meant to an average reader when it first went public.
Before I discuss Originalism 2.0, lets step back and look the sleight of hand originalists are trying to get away with here. They spent a couple decades telling us that unless we adhered to the intent of the framers chaos would ensue and judges would be legislating from the bench. Intent of the framers would save us all! When real historians showed them that their method was unworkable and, in fact, self-contradictory they went all Emily Litella on us: just ignore all that stuff we said about original intent! This New and Improved Originalism™ is the new One True Way and unless you do exactly as we say you are legislating from the bench! Cast off the Shoe! Follow the Gourd! The rest of us might be forgiven if we think their credibility is a bit tarnished at this point.
On the surface, originalism 2.0 seems like a step backwards: instead of reading the minds of 55 framers, we are now trying to read the minds of the nearly four million people living here in 1789? But that misses the point 2.0ers insisted. “Intent” is a private, cognitive function of the mind, but meaning is public: we can find it in texts shared by all. “Originalism does not require ‘judges to to be historians.’ It merely requires judges to identify the meaning–or communicative content–of the text of the Constitution” (my emphasis) In other words, we can simply read old texts, see how shared meaning of terms made communication possible, and arrive at a proper judicial decision that is based on objective evidence from the past rather than the whims of any particular judge. This, Scalia argued, was not difficult to do. Oh sure, he wrote, sometimes originalists might squabble about what the “original meaning” of the text was, but “But the originalist at least knows what he is looking for: the original meaning of the text. Often—indeed, I dare say usually—that is easy to discern and simple to apply” (my emphasis, p. 45). Scalia seems to think discerning original meaning is as easy as looking the word up in the dictionary: no fuss, no bother.
Contrary to Scalia, I don’t think the originalists have a clue how difficult the task they have set for themselves. Searching for the public meaning of a text is inherently regressive and why Gorsuch’s philosophy is reactionary.
Originialists seem to think that “public” is a thing out there waiting to be discovered. Just go back, read what was written and a clear meaning can emerge. But the very notion of a “public” is a difficult one and requires some sophisticated social theory to understand. How do we decide what “public” is? Do we go back to the agora of antiquity? How about John Dewey’s The Public and its Problems (1927) or Jürgen Habermas The Structural Transformation of the Public Sphere (1962)? In other words rather than something that can be discovered, “public” is something that is created depending on what theory of “the public” you adopt. Sorting out what is “public” and what is not is an ongoing research program among rhetoricians and philosophers and originalists seem completely unaware of it, since they think their task is “simple” and “easy.” It is anything but.
One theoretical outcome of struggling the notion of “public” is that one quickly finds “counterpublics.” If we go back to the late 18th century we find that texts, the very texts the originalists claim will bind judges, are being produced by rich white men. Enslaved people were generally prohibited from reading and writing and hence we have few texts produced by them. Free African Americans were in a slightly different situation as rhetoricians Celeste Condit and John Lucaites explain:
Free blacks were not generally permitted a voice in the public arena erected by Anglo-Americans. The African-American reaction to this exclusion was to constitute their own public arena, first in the relative safety of local venues such as black churches, and by 1817 on a national basis. (p. 6)
Many studies of early American public communication completely ignored African-American voices and those voices are slowly being recovered. So the notion that discovering “original meaning” by simply looking at public text is “simple” or “easy” can only be made by those willing to overlook the fact that the very concept of “original meaning” carries with it prejudices that exclude certain voices from a hearing.
A similar story can be told about the voices of women who were not allowed to speak in public and relegated to the private sphere of the home. Indeed, women of the 19th century were forced to speak out for their right to speak out, meaning that their voices were seldom heard on the other vital issues of the day. Scalia, and Gorsuch following him, seem unaware that by seeking guidance from the voices of the past they are being guided by voices that are openly racist and sexist and deaf to the less powerful in society. Which is why many view originalism as a mere perpetuation of the worst parts of American society.
Nor can originalism easily overcome that limitation. In order for originalism 2.0 to do what it is supposed to do, constrain judges in a neutral and principled way, originalists would have to first, come up with some sort of workable theory of the public, find a corpus of texts that represents the public, and find some theory of interpretation that allows them to claim they have objectively discovered the “original meaning” of a term. Each of these steps involves making some qualitative value judgment on the part of the judge. Some originalists are even pointing to large databases of words that can be sorted by historical period to make the process more objective. But such a database does not eliminate any of the problems I have sketched here: someone would have to decide what texts to include and exclude, how to give weight to this text or that text, and what terms should be included. Algorithms are infused with human judgments long before they are put into operation.
Originalism 1.0 was shown to be unable to do what it was supposed to. Originalism 2.0 was designed to fix those problems. It has not, and cannot do so. Originalists remain naive historians who do not understand the lesson taught by the great British historian, A.J.P. Taylor: “History is not another name for the past, as many people imply. It is the name for stories about the past”
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