I found out that Justice Scalia had died when a liberal friend texted me to say, “Too bad we live in different cities, or we could have a goodbye party for Scalia now.” It was dark humor, a clue to the kind of existential frustration progressives have felt at what has seemed the naked and unrepentant misanthropy in some of the justice’s positions. He appeared to gleefully twist words to support the worst of all untenable positions: corporate greed, restriction of fundamental human rights, bigotry and misoginy, to name a few. Of course no one is glad that the man – who seemed widely beloved by many who knew him – is dead. But many of us breathe a sigh of relief that we’ll have some respite from the pernicious nature of his decisions.
What frustrated me most during his tenure was that he wrapped himself in the moral certitude of originalism when issuing his decisions. Originalism, not to be confused with strict constructionism for those of you who aren’t avid SCOTUS watchers, is the relatively recent legal doctrine that the Constitution’s meaning is fixed as interpreted at the time of its enactment. (Strict constructionism states that only what is written in the law can be weighed when interpreting the law. Originalism suggests we should ask ourselves “What would the framers do?” when considering any constitutional decision, and then reason from there).
Here’s the problem with originalism: it’s a fallacy. It’s arrogance wrapped in alleged (and cherry-picked) respect for the framers’ original intent. The truth is that no one can know what the original writers of the Constitution meant for a variety of reasons. For starters, there is no such thing as the monolith known as “the framers.” They were regular men (all land-owning white men, by the way. We can get into that some other time, but it definitely informs how they saw the world). Like today’s politicians, they did not speak with one voice. On many subjects, they disagreed.
Those disagreements found their way into the document that today’s “originalists” hold sacrosanct. A political document first and foremost, the Constitution was written to make sure it would get ratified. In order to achieve this, the framers compromised, left language vague when they couldn’t, inserted mutually contradictory language in different sections so that each side could claim victory, and even overtly ignored issues they couldn’t agree on. This wasn’t an accident. It was political expedience. Far from being a sacred, infallible document, the Constitution is a flawed but heroic attempt to engineer government in a way that had not been done before. We should revere it and appreciate it for the great historical artifact that it is. Then we should acknowledge that it is over two hundred years old and could not have possibly foreseen the breakneck pace of change or the breadth of the issues we face today.
The hubris in originalism is thinking that we can presume to decide what the framers would think about certain modern issues. “Originalist” according to whom? Who decides? It is widely acknowledged that two originalists can arrive at different rulings (while it is less likely that strict constructionists can). So, in other words, originalism is an attempt to give your own opinions a mantle of holy importance. It also ignores the fact of the framers’ limitations. An eighteenth century farmer, no matter how intelligent or visionary, would not have been qualified to competently rule on issues of technology and a host of other modern issues currently facing the twenty-first century Court. The framers knew this. It is obvious what they gave us the best blueprint they could and fully expected us to improve it as time went on.
There is a certain nostalgia to originalism, a feeling that things were once better, a certainty that greatness once walked the Earth but does so no more. In fact, in the wall-to-wall coverage of Scalia’s passing, I saw a clip of him espousing that very idea. He said, “I truly believe that are times in history when a genius bursts forth at some part of the globe, you know, like two thousand BC in Athens or Cinquecento Florence for art. And I think one of those places was eighteenth century America for political science.”
That is wrong and misguided. Yes, what happened in 18th century America was special. But it was never intended to be frozen in time. George Washington himself publicly said that he expected the Constitution to last only about twenty years before getting rewritten. And the oft-quoted “framer,” Thomas Jefferson, probably said it best in a 1789 letter to Madison: “…the earth belongs in usufruct to the living; that the dead have neither rights nor powers over it.”
Part of becoming an adult is acknowledging that those who came before might have been wise and brave, but that they were also fallible. There is a certain early adolescent quality to originalism, an inability to take full responsibility in the present, a desire to shut down debate in exchange for simplistic certainty. It is, in a sense, an abdication of authority to a small set of men who lived when the world was a very different place. Yes, the framers were outstanding. We also have many outstanding people alive today, and we can draw from a broader and more representative pool of them than ever before in history to address the new and emerging issues in our rapidly evolving world.
Originalism flared up in the 1980s, right around the Reagan era. It is unsurprising that a paroxysm of resistance to progress would have emerged in the wake of the great civil rights movements of the 1960s and 1970s. The world would have seemed a scary place full of bad change to those who had enjoyed political supremacy before them. Over time, as the inherent good in giving more people a seat at the table overcomes the fears of loss, it is my hope that the fallacy of originalism will go the way of other failed and self-serving ideologies.
But then I am a progressive. Of course that is my hope. Let’s see how it actually turns out.