Whenever there’s a vacancy on the Supreme Court, many people discuss methods of interpreting the Constitution. Some prominent conservative jurists, such as Robert Bork and Antonin Scalia, maintained that the proper method is to understand the Constitution as it was understood by those who first ratified it. This is called original understanding, or originalism.
The main argument in favor of originalism is that a law should remain the same until the process specified for its revision is completed. In the case of the Constitution, that would be the process of amendment through legislative action. Originalism promotes the stability of constitutional law as well as the democratic processes of amendment by not allowing unelected justices to read their own particular desires, values, or whims into the Constitution.
One variety of originalism centers on what the framers of the Constitution were attempting to accomplish through their work. Was the purpose of the Second Amendment to promote state militias, or to protect individual ownership of firearms? How could we know? Some framers may have had one purpose in mind and others a different purpose. We can’t read their minds.
But we can read their words, so a second variety of originalism concentrates on the meaning that the words they used had at the time the Constitution was ratified. This originalism incorporates textualism, the view that laws should be interpreted according to their words, not according to the intent of their authors. Such originalists have argued that the Eighth Amendment disallowing “cruel and unusual punishment” shouldn’t be interpreted to disallow the death penalty, because that penalty wasn’t considered cruel or unusual in the eighteenth century. Elected representatives may enact new laws that forbid the death penalty, but unelected judges shouldn’t do so through constitutional interpretation. Again, originalism protects democracy.
Such textualism may have unwelcome implications, however. What did “arms” refer to originally in the Second Amendment? The only firearms at the time were barrel-loaded muskets and cannon, so if we’re not supposed to update the meaning of the words in the Constitution, those would be the only firearms protected. On the other hand, if we believe that the original understanding was to protect individual ownership of all subsequently developed methods of defense, individuals should be allowed to buy tanks and cruise missiles. Neither extreme seems reasonable.
Another problem for originalism concerns free speech. The First Amendment says, “Congress shall make no law … abridging the freedom of speech.” But even if speech is limited to verbal communication, we can’t take this freedom literally, because many crimes can be committed through speech alone, including sexual harassment and divulging state secrets.
Again, the Fourth Amendment protects people against “unreasonable searches and seizures” of their “houses, papers, and effects.” How do we know what the people who ratified the Constitution considered unreasonable? The text itself creates uncertainty. And what did people in the eighteenth century think about protecting encrypted messages on iPhones? Originalism and textualism supply no answers.
These constitutional issues, and many more, suggest that despite the virtues of fostering stability and democracy, originalism and textualism are not sufficient for constitutional interpretation. Legislatures must often be allowed to make what they consider reasonable judgments about individual ownership of weapons, free of judicial intervention based on the original understanding of the Second Amendment. Congress must be allowed to curtail speech to protect state secrets, but the extent of protection will require legislative judgment and judicial oversight to preserve the freedom of speech. Some forms of searches are necessary to control crime, but whether that includes court-ordered decryption of iPhones requires judgments about contemporary realities.
Another problem with originalism is that originalist decisions can be morally suspect. In Plessy v. Ferguson (1896), the Court ruled that the Fourteenth Amendment’s guarantee of “equal protection of the laws” allowed states to racially segregate public accommodations if those accommodations were equal. Wanting to disassociate originalism from segregation, Judge Bork argued that originalists would have opposed the Plessy decision because segregated facilities weren’t really equal. But those who ratified the Fourteenth Amendment in 1868 knew about such inequality, which was obvious, yet very few objected to widespread racial segregation. It seems that equal protection of the laws as originally understood applied to life, liberty, and property, but not to transportation or education. Unlike the ratifiers, we now morally condemn all legally required racial segregation. Original understanding suffers when morality changes.
In sum, originalism and textualism are good places to start legal analyses. But it’s unrealistic to think that originalist candidates will be good Supreme Court justices because they will adhere strictly to the Constitution. “Strict construction” is a myth. Originalist justices have to combine originalism with judgments about justice and practicality, guided by their particular values and moral commitments as well as their personal views about how our society works.
You may respond by e-mail to wenz.peter@uis.edu.
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