The Fallacy of Constitutional Interpretation: “Originalism”

 

You might ask where in the Constitution our framers authorized the formation of the Air Force or how Article I, Section 8, Clause 8 (copyright and patent protection clause) would extend the notion of a “writing” to indecipherable digitized electronic impulses that cannot be viewed or understood without an extrinsic “reader.” For jurists who embrace the notion of “originalism,” what was once considered a fringe view of the Constitution in the 1980s, perhaps those were not permissible interpretations. Fortunately, those issues were never brought before a modern Supreme Court where any justice embraced that legal approach to Constitutional interpretation.

“Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It exists independently of the subjective ‘intentions’ of those who wrote the text or of the ‘original expected applications’ that the Framers of a constitutional text thought that it would have. 

“Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.” Steven G. Calabresi writing for the Interactive Constitution for the Constitutional Center.

The champion of strict constructionism, originalism, was the late Supreme Court Justice, Antonin Scalia who said (in 2016): "The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted." His former law clerk, now a sitting federal appellate judge on the Seventh Circuit and Trump 11^th hour nominee for the RBG vacancy, Amy Coney Barrett, admittedly shares Scalia’s view on Constitutional interpretation:

"In English that means that I interpret the Constitution as a law," said Barrett on the second day of her Senate Judiciary Committee confirmation hearings, "and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it."

The notion of immutability of the U.S. Constitution actually flies in the face of common sense. How can you apply a constitutional interpretation from an era of muskets and flintlocks, where 94% of the nation was engaged in agriculture, where ships needed oars or wind power, and where electricity was relegated to Ben Franklin’s experimentation with kites and lightening? As Los Angeles Attorney (UCLA Law, and UCSB undergraduate in philosophy), Branden Frankel, writes in his letter to the editor of the Los Angeles Times (October 16^th): “What did ‘liberty’ and ‘property’ mean to the slave owners who framed that amendment? Their definition of those terms has been shown by history to be not just wrong, but also evil.

“On top of being morally repugnant, originalism is self-contradictory. The framers could have written into the Constitution an explicit requirement that terms were to be construed according to their common meaning at the time of ratification. But they didn’t, meaning that originalism is affirmatively placing a modern meaning on the Constitution it most certainly did not have at ratification… In fact, the framers were steeped in the common-law tradition, in which judges continuously refined and changed the law over time.”

And then there is the tiny detail: the entire American legal system is and was based on the British notion of “common law,” one where judge-made laws fill obvious voids. Our basic approach to breaching contracts or assessing responsibility for negligent harm was built primarily on common law. Not statutes! While some arenas are not amenable to this approach (taxation, treaties, compulsory military service, budgetary allocations, etc.), our common law system – taught in every law school in the United States (and the UK, Australia, New Zealand, Canada, etc.) – was intended to address the obvious, an evolving society and act as a sort of spackle to fill the cracks between the statutes passed by the state legislatures and Congress.

Our Founding Father’s made an affirmative choice to adopt this legal approach (as opposed to the more purely statutory “civil law” practiced in France, Spain and Italy). U.S. courts even routinely cited British common law in our early years. Congress and our appellate courts can always reverse a judge-made law (statutes and the Constitution take precedence) if they think a court overstepped its natural bounds. Scalia and Barrett were raised within that legal system!

One more reality, one that infuriated me when conservative justices, dissenting against past civil rights decisions, suggested that the only proper path to implement a fair result was for a new constitutional amendment to pass. Such justices were acutely aware of the virtual impossibility of such adding new constitutional amendments. Given the level of polarization that defines contemporary politics, the U.S. Constitution is the least amendable constitution of any genuine democracy on earth. Just shy of generating the necessary votes from the required number of state legislatures within its self-set time limits, the Equal Rights Amendment is now dead. A ground zero do-over.

The last constitutional amendment, the 27^th – which required an intervening election before Congress could implement any raises it voted for itself – took 203 years to pass. 1992 to be precise. “It was submitted by the 1st Congress to the states for ratification on September 25, 1789, along with eleven other proposed amendments. While ten of these twelve proposals were ratified in 1791 to become the Bill of Rights, what would become the Twenty-seventh Amendment and the proposed Congressional Apportionment Amendment did not get ratified by enough states for them to also come into force with the first ten amendments.”

The notion of originalism is a relatively recent theory of constitutional law embraced by severe right-wing jurists opposed to change, regardless of the obvious social necessity. None of the gender inequality cases would have passed muster under this archaic view of the Constitution.

            I’m Peter Dekom, and I am furious that otherwise able jurists are able to infuse their limited views of equality by relying on absurd theoretical constitutional interpretations that even our Founding Fathers never followed.