Originalism as Dangerous Nonsense

 By Eric Segall

In my 2018 book Originalism as Faith, after canvassing numerous different and often conflicting forms of originalism, I argued that many originalists hold on to the idea that text and history should be used by judges to resolve hard constitutional cases because they could not accept the realist critique that the Supreme Court's decisions are ideology or values all the way down. I also suggested that on the ground originalism did very little work in generating decisions by courts and that the theory was mostly an after-the-fact rationalization for decisions made on other grounds. 

With the addition of three alleged originalists to the Supreme Court and a host of so-called originalists on the lower courts, we have now seen much more originalism in action that we saw prior to 2018. The pinnacle of this movement came last June in New York Pistol & Rifle Ass'n. v. Bruen, in which the conservatives signed an opinion by Justice Thomas instructing courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” The Bruen Court made clear that judges should not take into account policy concerns when reviewing the constitutionality of gun legislation. 

As a direct result of this case, a federal district court in New York struck down a ban on carrying firearms in places of worship and a federal district court in Mississippi is being asked to decide whether a federal ban on felons possessing guns is constitutional. The judge in that case, obviously lamenting this absurd state of affairs, asked the parties whether he should appoint an historian to help him decide the case because:

This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess. The sifting of evidence that judges perform is different than the sifting of sources and methodologies that historians perform. See id. at 2177 (Breyer, J., dissenting) (“Courts are, after all, staffed by lawyers, not historians.”). And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.

Also last term, the Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, largely on the basis that the right to an abortion was not historically protected. The Court went as far back as the 13th century to detail this point (including favorable citations of notorious 17th century misogynist and punisher of witches, Sir Matthew Hale). Again, the Court disclaimed any reliance on policy concerns to justify its conclusions.

Many Federalist Society lawyers, law professors and judges have doubled down on the importance of history and original meaning to constitutional interpretation, claiming that originalism is the sole tool judges ought to use to decide constitutional cases. In short, since my book was published just four years ago, originalism has only become more important in the courts, the academy, and the press.

And it is all dangerous nonsense.

In two major religion cases decided last term, the Court only gave lip service to history to support its conclusions that the free exercise clause bars states from making important decisions about school funding and prayers by a football coach. Those opinions, applauded by most conservative academics, reflect how the Justices have always and will continue to rely on historical analysis only when such a framework supports their policy preferences. In neither case, did the Court engage in serious historical analysis. As one scholar put it: "In this term’s religion cases, Carson v. Makin and Kennedy v. Bremerton School District, the 6–3 conservative majority dramatically expanded the protections of the free-exercise clause, without a whiff of attention to history and tradition, while whittling down the establishment clause...."

This inconsistency can also be seen in the recent oral arguments over affirmative action, in which the conservatives on the Court seemed to be completely indifferent to the many scholars and amici who have argued that affirmative action is consistent with the 14th Amendment's original meaning. Over almost five hours of  arguments, there were only a few questions about the history of the 14th Amendment. 

To further support this point about the selective use of originalism by the judges, one need only look at virtually any major first amendment decision of the Roberts Court to find out that the use of history in free speech cases is almost always completely absent from the Court's analysis.

Judges and academics should know better. Original meaning as one tool among many for judges to use to resolve hard cases may or may not be justified, but the Bruen's Court's admonition to use history exclusively to decide the validity of gun laws (and possibly other issues of constitutional law) is beyond ridiculous.

Today's firearms bear no resemblance to the muskets of 1791 or any weapons around in 1868. I do not know whether laws similar to the current ban on firearm possession by felons were in place in ancient times but why on earth would we care? One does not need to be an expert on firearms to understand that weapons that can shoot from much longer range with much more accuracy and far less training are different in kind, not just degree, from muskets. The relationship between gun safety and gun rights is a problem that must be resolved by examining today's world and our technologies, not the primitive weapons in use centuries ago.

Similarly, the differences between the internet and any form of communication that was available in 1791 or 1868 are monumental. Professor Brian Leiter has argued that the "internet is the epistemological crisis of the 21st-century," and that free speech law needs to change dramatically to deal with this crisis. 

A judge trying to decide whether or how the government can regulate the internet will find almost nothing of value in ancient times and simply must take into account modern conditions. Originalism and history simply have little relevance to this subject (as is true for most free speech issues even apart from the internet, given that the First Amendment's original meaning was almost entirely about prior restraints and not punishments after speech is delivered). What the Justices said about guns and originalism will have no effect on their free speech jurisprudence, but don’t expect them to own up to that fact.

I detailed here why original meaning is almost useless when judges are faced with separation of powers questions. Our national government is not made up of representatives from 13 states all in one geographic region but 50 states spread out over thousands of miles. The presidency bears little relationship to what the founding fathers expected and the Congress can't possibly govern as easily as the Congress of 1791. If you don't believe me, listen to one of the most respected Justices in American history (Robert Jackson) writing maybe the most important concurring opinion in American history in one of the most important separation of powers cases in all of American history:

Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.

The relationship between the Congress and the President when it comes to war powers is necessarily affected by the availability of nuclear weapons that can cause world-ending damage in short periods of time. The rights of women and LGBTQ folks cannot be meaningfully ascertained by looking back in history to times when those groups had virtually no rights. Many scholars think lethal injections are cruel and unusual punishments, but how does anything in 1789 help is with that issue? I could go on and on.

I want to end this blog post by using Professor John McGinnis' work on originalism as support for the sharp attacks herein. I know him and I don't mean this personally or to single him out. But his work is quite representative of many other academics and judges who identify as originalists.

First, McGinnis wrote an important article years ago arguing the following: 

"Those who framed the Constitution and rendered justice in the early Republic did understand judicial duty as requiring a clear incompatibility between the Constitution and a statute before displacing the latter by the former."

I agree with this assessment, as I detailed here. The general idea that there is a strong presumption of constitutionality of state and federal laws is not shared by all originalists, but it is the view of judicial review most consistent with the founding.

Yet, somehow, despite this requirement of "clear incompatibility" between a law and the Constitution, McGinnis, and many other academic and judicial originalists, nevertheless believe the following:

1) The Court's aggressive use of the free exercise clause last term with virtually no reference to history or original meaning was correct.

2) The Court's preference for strong and robust Second Amendment rights for individual gun owners is correct despite the almost universal agreement among historians that the Court's history is careless and wrong.

3) Affirmative action should be struck down under Title VI despite many years of precedent saying the opposite and silence on whether the original meaning of the equal protection clause allows affirmative action (which as noted above, it clearly does).

4) The controversial federalism decisions of the Rehnquist Court actually did not go far enough in protecting states' rights (query whether that notion is consistent with numbers 1, 2, and 3 above).

5) Money is speech and thus Citizens United was correctly decided on that basis.

The point should be obvious. McGinnis, like all the allegedly originalist Justices, and many academics, argues for results consistent with today's conservative movement whether or not those results have a persuasive originalist pedigree. The use of originalism by both judges and scholars does not result in accurate historical accounts but does result in their policy preferences being equivalent to what they argue the Constitution requires. And, when the Court ends all affirmative action next June with an opinion that will almost certainly either largely ignore originalism (like the religion cases from last term) or get it mostly wrong (like Heller and Bruen), no one should be surprised.

Originalism is dangerous nonsense covering for value judgments that are very much rooted in conventional politics not in accurate historical accounts of times long ago.