The Originalism Fallacy

On day two of Amy Coney Barrett’s Senate confirmation hearing , Judiciary Committee Chairman Lindsey Graham asked, “You say you’re an originalist. Is that true?” “Yes,” Barett replied. “What does that mean in English?” Graham continued. “… [T]hat means that I interpret the Constitution as a law, 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,” Barrett replied, reciting a now familiar mantra.

Some time later that day Senator Mike Lee of Utah probed further: “Tell me why textualism and originalism are important to you.” “… I think originalism and textualism, to me, boil down … to a commitment to the rule of law," Barrett said, "to not disturbing or changing or updating or adjusting ... in line with my own policy preferences what that law required.” “And is it the subjective motivation, the subjective intent of an individual lawmaker or drafter of a constitutional provision that we’re looking at?” Lee continued, “Or is it original public meaning? And if so, what’s the difference between those two?” “It’s original public meaning, not the subjective intent of any particular drafter,” Barrett predictably replied. “So one thing I have told my students in constitutional law is that the question is not what would James Madison do? We’re not controlled by how James Madison perceived any particular problem. That’s because the law is what the people understand it to be, not what goes on in any individual legislator’s mind.”

These exchanges present the rote formulation of originalism and textualism – legal jargon that has seemingly improbably found its way into popular media. Writing in 2011 on the occasion of members of the House of Representatives reading the Constitution aloud at the opening of its legislative session, University of Chicago’s Eric Posner noted with some surprise at the ascendance of originalism signaled by the House’s homage. “Although originalist ideas have floated around since the Founding,” Posner wrote in the New Republic, “the modern theory was produced by a small group of mostly marginalized (conservative) academics, whose ideas were rarely taken seriously by the most influential (liberal) scholars in the top law schools.”

The mantra of originalism seems innocuous and even self-evident: that the Constitution must mean what its drafters understood it to mean. Complicating matters from the outset, however, some originalists propose that the sacred meaning is rather what the citizens who ratified it understood it to mean, one ambiguity of what we shall see are many that arise in attempting real world application of this seemingly straightforward principle. But as Posner observes, the drafters and ratifiers understood that “the structure of government that makes sense in 1780s will not make sense decades and centuries later.”

Their attempted solution was Article V, which provides the procedure for amending the Constitution. However, an amendment requires either a two-thirds vote in both houses of Congress, followed by majority votes in three-fourths of state legislatures, or two-thirds of the states must call for a constitutional convention whose resolutions must be ratified by three-fourths of the states. Legal scholars such as the University of Pennsylvania’s Mary Frances Berry find in these requirements an admirable balance. “Because our Constitution can be amended, we can repair tears in our social fabric and try different strategies and tactics to resolve problems,” she wrote in the NY Times in 1987. “Because our Constitution cannot be amended easily, we can preserve the stability and continuity that lasting republican government requires.”

Posner, however, calls Article V a miscalculation, noting that “virtually all national and state constitutions are easier to amend than the US constitution.” Instead, says Posner, “the task of updating the Constitution was taken on by the courts, which could advance ‘interpretations’ that were de facto revisions.” This set up a tension between political actors and the unelected judges of the Supreme Court, who, in Posner’s characterization “probably lack the ability and motive to update the Constitution in a manner that consistently serves the interests of the public.”

Enter originalism. As Posner describes it, originalism arose in the 1950s and 1960s as a reaction to decisions of the Supreme Court under Chief Justice Earl Warren that established rights to privacy, racial equality, religious dissent, and judicial process. In Posner’s view the originalists’ assertion that members of the Warren court had imposed ideological preferences on the Constitution was plausible, but their assertion that originalism was the only valid way to interpret the Constitution was not. To support this view Posner notes that numerous constitutional precedents with no originalist basis enjoy widespread public support. The classic example is Brown v Board of Education, which desegregated public schools.

Posner describes District of Columbia v. Heller as an example of originalism infecting both liberal and conservative wings of the Supreme Court, referring to the opinions in the case as “warring constitutional histories.” Heller struck down the district’s ban on registering handguns and the requirement that even registered firearms must be stored disassembled or disabled with a trigger lock. For Yale’s Reva Siegel, however, Heller illustrates at a minimum the fundamental ambiguity of so-called originalism, and at worst a kind of Orwellian doublethink in which its application brings about the opposite of what it claims to represent.

“… Heller’s originalism,” she writes, enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. It situates originalism's claim to ground judicial decisionmaking outside of politics in the constitutional politics of the late twentieth century, and demonstrates how Heller respects claims and compromises forged in social movement conflict over the right to bear arms in the decades after Brown v. Board of Education.”

In 1968 the consensus view of the Second Amendment seemed to be that it was to be understood in the context of the right of the states to organize a militia. The assassinations of John F. Kennedy, Martin Luther King, and Medgar Evers, and civil unrest in the aftermath of the Vietnam War contributed to Johnson’s advocacy for some kind of federal gun control legislation. “At this point even the NRA was prepared to support federal gun control laws,” Siegel writes, and in 1968 Congress enacted two rounds of legislation, restricting some buyers, prohibiting some mail-order sales and imports of firearms, and creating the Bureau of Alcohol, Tobacco, and Firearms inside the Treasury Department.

Johnson’s conservative critics opposed the Warren court’s decisions affirming constitutional rights for criminal defendants, which were widely seen in the context of the civil rights struggle. In response conservatives in Congress “larded,” to use Siegel’s term, the gun control legislation with restrictions on defendants’ rights, which were opposed by civil rights advocates who otherwise generally supported the legislation. Richard Nixon was among those who promoted a narrative linking street crime, political protests, and urban riots, and in 1969 he was elected president, having run as a “law and order” candidate.

The conservative opposition to Johnson’s Great Society initiatives morphed into a “libertarian” movement advocating Second Amendment rights. Popular support for gun control declined by nearly 20% between 1959 and 1975. The NRA which in 1968 had supported limited gun control measures now established an Institute for Legislative Action (ILA), whose head testified before Congress in 1975 in opposition to a bill regulating handguns. “Opposition to gun control was now expressed in law and order frames,” Siegel writes. The implicit division of society into citizens and criminals was in stark contrast to the inclusive vision of the Great Society.

Joining the growing anti-gun-control brigade in 1975 was then California Governor Ronald Reagan, who, writing in Guns & Ammo magazine, went beyond the criminal-citizens distinction to offer a constitutional basis for opposition to gun control. “The [S]econd [A]mendment gives the individual citizen a means of protection against the despotism of the state…,” Reagan (or his speechwriter) wrote. “[T]he rights of the individual are pre-eminent.”

In 1977 at what came to be known as the “revolt in Cincinnati,” conservative members of the NRA led by Harlan Carter, head of the newly established ILA, wrested control of the NRA from moderates who supported what Siegel calls “incremental forms of gun control legislation.” Appeals to the NRA membership continued framing the Second Amendment debate as one over individual rights, now comparing gun owners to colonists rebelling in the Revolutionary War.

The new NRA fundamentalists soon joined with Richard Viguerie, who had been chief fundraiser for George Wallace’s 1972 presidential campaign, and with the loose coalition of business, Christian fundamentalists, and anti-abortion “family rights” advocates who comprised what became known as the New Right. Viguerie’s fundraising provided the burgeoning movement with financial independence from the Republican Party, and media figures like Jerry Falwell provided them with independent media channels. Although Gerald Ford was the Republican nominee for president, narrowly defeating Ronald Reagan, the New Right influenced the party platform, which included provisions explicitly supporting an individual right to bear arms, and opposing federal gun registration. Republicans gained control of the Senate, with Viguerie clients Strom Thurmond and Orrin Hatch assuming chairmanships of the Judiciary Committee and its Subcommittee on the Constitution, respectively. In 1982 Hatch’s committee released a report proclaiming that it had found “proof that the Second Amendment … was intended as an individual right of the American citizen …,” and in 1986 Congress passed the Firearm Owners Protection Act, explicitly referencing an individual right to bear arms, and repealing parts of the 1968 Gun Control Act.

Reagan’s Attorney General, Edwin Meese, working with Paul Weyrich, who helped found the Heritage Foundation and Free Congress Foundation with money from the right-wing Coors and Scaife families, embarked on a campaign of social change through the judiciary. By the end of Reagan’s second term he had appointed three new Supreme Court Justices, and half of the lower federal court judges. In describing the cumulative effect of Nixon’s appeal to “strict constructionism,” Meese’s assertions that the executive branch could and should challenge Supreme Court’s interpretation of the Constitution, and Reagan’s appeal to imagined “Framers” of the Constitution, Siegel invokes a word that appears with some frequency in discussions of originalism: filiopietistic. The American Heritage Dictionary defines filiopietistic as “an immoderate reverence for forebears or tradition.”

Spokesmen for the New Right such as the Center for Judicial Studies’ James McClellan began to distinguish between changing the Constitution — which was understood to require the amendment process described in Article V of the Constitution — with restoring it, which was to be accomplished through the courts. In 1981 the Federalist Society had been founded, and by 1985 was receiving a substantial portion of its funding from the right-wing Scaife Foundation. When Reagan won re-election, Attorney General Meese appointed Stephen Markman, who had helped write the Hatch committee’s anti-gun-control report and found the Washington chapter of the Federalist Society, head of the Office of Legal Policy (OLP). In 1986 Federalist Society darling Antonin Scalia was appointed to the Supreme Court. Scalia’s view of originalism as evidenced in a speech that Markman referenced in a 1987 OLP publication was that “original” referred to “original meaning” – i.e grounding intepretation in claims about those who ratified the constitution rather than those who drafted it. As Siegel puts it, “The originalist narrative presents change as legitimate precisely because it is impersonal and not responsive to the ‘personal preferences’ of the interpreter.”

Yet over the next decade, the New Right’s approach to so-called “social issues,” (abortion, busing, school prayer, etc.) diverged from the approach to the Second Amendment. Whereas the “social issues” argument sought to undo decisions of the Warren Court as having meddled with with “original meaning,” the Second Amendment argument required that courts invalidate legislation. In the 1980s the judicial system was not inclined to support that point of view. Siegel quotes former Solicitor General Erwin Grisold as asserting that such a view “exceeds the limits of principled advocacy.”

Attitudes toward the Second Amendment began to change in the late 80s and early 90s, especially in response to two articles in the Yale Law Journal that promoted a view of Second Amendment rights as having been part of “the people’s right to alter or abolish a tyranous government,” that was transformed after Reconstruction into “an essentially ‘civil’ right.” Nonetheless, throughout the 90s, a large majority of the public supported gun control measures, such as further restricting the sale of firearms. President Clinton, a gun control advocate, was elected in 1992, and the following year the Brady Bill was passed, named after Reagan press secretary James Brady, who was shot during an assassination attempt on Reagan in 1981. The Brady Bill created a background check to enforce ownership restrictions contained in the 1968 Gun Control Act, and was followed by another incremental measure in 1994, which prohibited sale of some semi-automatic weapons, dubbed “assault weapons” to civilians.

The NRA mobilized in response to these restrictions, helping the Republican party to win a majority in the House of Representatives in 1994, most of whom were “A-rated” by the NRA. This was the era of Newt Gingrich’s infamous “Contract with America,” and he used the gun control issue to define conservatives vs liberals, regularly framed as a dispute over law and order. “For some psychological reason,” he wrote in 1995, “liberals are anti-gun but not anti-crime.”

In the early 90s the NRA continued it’s rightward drift, becoming, in Siegel’s words “entangled with militias,” and increasingly expressing racial animus. The violent confrontations at Ruby Ridge and Waco heightened the militia movement’s mistrust of federal government, and opposition to what was viewed as tyranny. The pinnacle of this development was NRA member and unlicensed dealer in military equipment Timothy McVeigh bombing the federal building in Oklahoma City in 1995. The bombing was likely modeled on The Turner Diaries, a popular text in the militia movement in which an ex-soldier blows up a building to protest the government being “overrun by blacks and Jews.”

Rather than distance itself from the militia movement after the Oklahoma City bombing, the NRA’s Wayne LaPierre clarified that the organization’s frequent use of the term “jack-booted thugs” to describe federal officers should be understood to apply only to agents of the Bureau of Alcohol, Tobacco, and Firearms. Siegel suggests that the NRA's failure to distance itself from the militia movement led to declines in membership, and the amount of contributions the organization was able to make to political action committees starting in the following year. In response LaPierre recruited Charlton Heston to try to modify the NRA’s public profile. And while Heston’s public statements distanced the NRA somewhat from the militia movement, and watered down its opposition to the Brady Bill on the premise that it was ignored by local law enforcement anyway, he simultaneously went on the offensive with regard to the Second Amendment, asserting that the purpose of its inclusion in the Constitution was to “protect the people from the state.” In a 1997 speech to the Free Congress Foundation Heston went further and explicitly invoked racial and cultural stereotypes. Mainstream America, he said, was depending on them to fight “… the fringe propaganda of the homosexual coalition, the feminists who preach that it's a divine duty for women to hate men, blacks who raise a militant fist with one hand while they seek preference with the other….” Two years later, in a speech publicized by radio personality Rush Limbaugh, Heston would describe the culture war as another “great civil war.”

When the Supreme Court struck down a Texas law prohibiting same-sex relations in Lawrence v. Texas – a decision that ran counter to the New Right’s position on “social issues,” Scalia dissented that Texas was within its rights, that “its hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change,” and that the Court had “taken sides in the culture war.” Yet in Heller, which we’ve described briefly, above, which affirmed what Siegel calls a “New Right right,” Scalia finds that it supports so-called “original values,” and so requires no Constitutional amendment. Summarizing the capriciousness of originalist claims, Siegel writes

When Justice Scalia sides with a social movement, he does not present himself - and may well not understand himself - as taking sides in the culture wars…. Justice Scalia views the gun rights movement as rescuing the founders' Constitution from the politics of the culture wars…. [D]ecades of gun rights mobilization transformed the "natural" meaning of the Constitution's text so that, for increasing numbers of Americans, a law-and-order Second Amendment simply appeared there as the founders' Constitution….

But beyond the legal doublethink whereby essentially the original interpretation of the Constitution is whatever the originalist supports today, there are linguistic and philosophical questions as to whether it is even possible to establish the meaning of a historical document as of a point in time.

As we’ve noted above, the understanding of “originalism” has undergone some transformation – initially having been taken to mean the “original intent” of the drafters of the Constitution, but over time having come to mean “original meaning,” i.e. what reasonable people at the time of the drafting of the Constitution would have understood the words to mean. This latter definition aligns originalism with “textualism,” which asserts that the meaning of a law is what a reasonable person would understand the ordinary meaning of the text to be.

Victoria Nourse of the Georgetown University Law Center, writing from the perspective of philosophy of language, suggests that the interpretive method originalists’ claim to employ is not possible. The key concept in Nourse’s analysis is “pragmatic inference.” Pragmatic inference operates whenever the “message of a speaker goes beyond the literal or logical meaning of the sentences used….” For example, consider the sentence “Some of the students passed the exam.” Technically, this sentence allows for the interpretation that all students passed the exam. This usage, however, suggests “Not all of the students passed the exam.” This distinction is sometimes referred to as the “linguistically encoded meaning,” which is determined by decoding grammar and semantics from the acoustic utterance, and the “speaker’s meaning” which requires an additional step. The first sentence can be said to “underdetermine” the speaker’s meaning.

… [T]he meaning encoded in the linguistic expressions used, the relatively stable meanings in a linguistic system, meanings which are widely shared across a community of users of the system, underdetermines the proposition expressed (what is said). The hearer has to undertake processes of pragmatic inference in order to work out not only what the hearer is implicating but also what proposition she is directly expressing.

— Robyn Carston, Thoughts and Utterances, (Oxford: Blackwell) ,2002.

Nourse asserts that anyone attempting to interpret text makes such pragmatic inferences – or as she puts it “pragmatic enrichment” – “before they have had recourse to history.” Writing in 2018 she argues that “… any theory of constitutional meaningvmust depend upon basic principles of communication. At a minimum, any asserted inference from the text must not be inconsistent with the rest of the Constitution. By ‘inconsistency,’ I mean that hypothesized meanings may not be ‘falsified’ or ‘cancelled’ by the rest of the Constitution." 

Falsification is a logical principle associated with philosopher of science Karl Popper, which asserts that for a theory to be considered scientific it must be possible to test it, and there must be a way that it could be proven false.

Nourse considers her approach “a more robust version of pluralism” – an interpretive method that brings multiple disciplines and lines of inquiry to bear in analyzing a text, including text, intent, precedent, tradition, policy, etc. A restrained pluralism, Nourse writes, “resists false readings by testing the words against their effects: how the world has treated these questions in the past and what has happened because of these words in the world, to the Constitution and real life….” This, Nourse asserts, is consistent with what founder James Madison called “liquidation” of meaning, as repeated decisions refined constitutional meaning, and eventual “public sanction” – effectively a popular ratification. 

Among the illustrations of her interpretive method, Nourse examines Justice Scalia’s dissent in Morrisson v Olson. The case challenged aspects of the 1978 Ethics in Government Act, which empowered the Attorney General to appoint a special prosecutor to investigate government officials, and prosecute them if necessary. Scalia wrote “To repeat, Article II … of the Constitution provides: 'The executive Power shall be vested in a President of the United States.’ As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power.” The pragmatic enrichment, here, Nourse observes, is Scalia’s interpretation of “the executive power” to mean “all” executive power. But, as Nourse demonstrates, Scalia’s use of "all" is negated by the Constitution as a whole. For instance, “the President does not have ‘all’ power to appoint his subordinates; he shares that power with the Senate…,” she writes, adding that few scholars are willing to accept that the Article II executive power clause “means the President can do anything he wants as long as he calls it ‘executive power.’”

“[T]here is no textual answer,” to the problem posed by Morrisson v. Olson, Nourse writes, only “textual arguments” whose meaning can only be clarified by pragmatic enrichment in one or other direction. Rehquist’s argument in the majority opinion may have been influenced by a concern that striking down the statute could have threatened the whole edifice of independent government agencies, “from the Federal Reserve to the Securities and Exchange Commission.” Scalia’s argument in dissent may have been an expression of concern that Congress was “using the independent counsel law to punish political opponents.” Thus, in Nourse’s view, the originalist premise is negated by an aspect of the interpretive process that is part of any analysis of language.

Sean Wilson of Wright State University in Ohio goes beyond Nourse’s invocation of pragmatic enrichment in arguing against originalism. “When saying that x is constitutional (or not), a person makes [a] … judgment, not a statement of fact.”

Quoting the work of Lawrence Solum, now at the University of Virginia Law School, Wilson identifies originalists as asserting that the “original meaning was fixed or determined at the time that each provision of the Constitution was framed or ratified.” This, Wilson notes, ties the theory of meaning to specific behavior – when members of the legislative body approve the bill. Wilson compares this to a christening or blessing. “It’s not that such an understanding failed to exist before the blessing,” Wilson writes, “it that it wasn’t law until this occurred.” Wilson labels this a “baptismal account of meaning,” an approach he associates with Solum, Princeton’s Keith Whittington, etc.

There’s also a question of what was baptized: the document or a specific provision. The Constitution as a document might be understood to say something about the political and philosophical context from which it emerged, or the form of government it describes. But asserting that a specific provision has fixed meaning is something very different, according to Wilson. To make this assertion, says Wilson, is to say that “a specific concept, criteria, or instantiation has already been legislated to the exclusion of rivals, for the specific piece of text.” Otherwise, says Wilson, the baptism is equivalent to saying “the language is spoken,” which he terms “a vacuous thesis.”

Wilson analyzes the Fourth Amendment to the Constitution, which protects against “unreasonable” search and seizure. Focusing on the word “unreasonable,” Wilson calls it a chameleon concept. Examining the prefix “un,” which means opposite (Wilson’s example is “unlocked” means open.), and the suffix “able,” which means possible (Wilson’s example is that something “lockable” can be locked.), Wilson observes that “unreasonable” can take on a different meaning depending on the order in which the prefix and suffix are processed. If “un” is processed before “able,” unreasonable could mean unreason-able, i.e. “something that can be ‘opposite reasoned.’” Applying this interpretation to the Fourth Amendment Wilson posits a police search for a murder suspect in which ammunition like that used in the crime is observed in a car near the crime scene. However, the ammunition is also used for hunting, it is hunting season, and local residents are known to hunt. If the prohibition against “unreasonable” searches prohibits a search where an ‘opposite reason’ for the suspicious behavior can be posited, then the search in this case would be prohibited.

A different picture emerges, however, if one processes the suffix and prefix in a different order. In this case “able,” which means possible is processed first; then “reason”, so that reasonable is understood as possible to reason; then “un,” understood as opposite. Taken in this order the meaning is un-reasonable, “not possible to reason,” i.e. something that can’t be reasoned at all. This is clearly a different meaning from the example, above. With this interpretation searches and seizures could be allowed as long as there was any basis. In the example a search of the vehicle containing ammunition would be justified.

This inherent ambiguity, or possibility of ambguity, is the chameleon concept. Two different valid meanings exist, and a judge must choose the one they believe better fits the situation. Wilson characterizes these choices by a judge as similar to what Ludwig Wittgenstein referred to as “aesthetical” judgments. Wittgenstein observes that it is in aesthetical judgments that one often finds the words “right” and “correct.” He describes reading texts again and again, differently later than at first, more intensely over time, eventually saying “Look! This is how they should be read.”

“… [T]he only thing that appears to be ‘fixed,’” Wilson writes, “is the text itself, which is the same as saying ‘at the time of the founding, the provision was stated.’” He goes on to discuss that the Fourth Amendment example does offer “fixed content in a sense,” (unreason-able vs un-reasonable), which Wilson terms “having a certain grammar.” This doesn’t help the originalist, however. If this is all an interpreter means, says Wilson, (1) they are not an originalist because history is not being invoked to decide between rival concepts, and (2) the “grammar” of something shouldn’t be considered its “original meaning.” Even in cases where the interpreter does mean what Wilson calls the “grammar,” a phrase like “first construction” would be better than “original meaning.”

“Legislative and administrative text in America is pedantic,” Wilson writes, in that is uses language that “specifically directs its adherents….. That is what makes the law sound ‘legalistic.’” Yet the Constitution doesn’t have these “linguistic properties.” “The document doesn’t even have a definition section,” Wilson quips. He characterizes the originalist response as asking us to “use history to create a pretend constitution.” But “[w]e cannot behave toward the Constitution in the way originalists want without also changing what the act of legislation is as a behavior. In other words, originalism asks us to be incongruent with our current legal forms.”

“The only way to see originalism clearly,” Wilson concludes, in language that echoes Siegel’s conclusion from an entirely different line of reasoning, “is to see it as a legal ideology that has political objectives in mind….”