The nonsense of originalism

I’m no lawyer but have always been interested in the Court as an institution: its history, personalities, decisions. I often get impatient with liberals when they decry “judicial activism” or conservatives when they regard a political document written over two centuries ago as inviolate. Isn’t it funny how originalism produces the most conservative results? Long ago when questioned by the Senate the late Robert Bork admitted that Brown v. Board of Education was correctly decided. The problem, however, is that no so-called originalism can support Brown as law. Bork said what he needed to to get confirmed. Political calculation led him to that statement. Only a belief in stare decisis or, heaven forbid, fear of social ostracism would keep a conservative adherent to originalism wedded to Brown – up until November 2016 anyway. And original intent versus original meaning is a distinction without a difference.

As political creatures who were also acquainted with great poetry, Adams, Jefferson, and Madison understood that words on a page mean different things to different people. Madison argued that Hamilton’s beloved First National Bank was unconstitutional but later signed the bill chartering the Second National Bank. If reasonable literary critics still disagree about to what extent John Milton intended a sympathetic, heroic Satan in Paradise Lost, then how can we divine what exactly the writers of the Constitution meant when, say, writing the Search and Seizure Clause in the Fourth Amendment? How did Brown violate the original intent of Fourteenth Amendment, which said nothing about the constitutionality of separate but equal public schools? Even the writing of the Thirteenth, Fourteenth and Fifteen Amendments by Radical Republicans just after the Civil War depended on a 1787 understanding of the original Constitution, never mind how subsequent iterations of the Supreme Court transformed the Fourteenth Amendment into an instrument by which the rights of corporations were extended at the same time that the rights of freedmen were curtailed. Thus, originalism becomes an exercise in chasing a rabbit down an ever deepening hole.

At least William O. Douglas was honest: he first decided what he thought was right then found the precedents to support those results; none of this nonsense about “original intent.” It led to slipshod opinions, but at least he was enough of a realist to accept that the law is like a poem or essay, subject to dozens of possible interpretations. The only “wrong” interpretation is one which hurts the most people. “When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated,” Madison wrote in Federalist 37. Accepting the presence of clouds is at least an honest first step.

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