America According to the Gospel of Originalism; Or Why I Never See Originalists In the Hood, Only in the Club

by Tochi

 

I. Oh, I Get It, You Biggie and He’s Puffy

On the last day of January 2017, the 45th President of the United States announced his pick for the vacant seat on the Supreme Court of the United States: Neil Gorsuch. Gorsuch comes factory-made for a seat on SCOTUS. This scion of conservative nobility, whose record has already faced scrutiny, can be counted on as a reliably Republican vote. The Scalia comparisons are facile—he is more a jurist’s jurist than his vituperatively Catholic predecessor/progenitor—but apt. His neoconfederate patterning fits the hole carved in the Republicans’ judicial vision by Scalia’s death.[1] The seat was an Originalist’s, so the argument goes that it should remain an Originalist’s, which thinking is completely in keeping with a party that has, ever since the passage of the Civil Rights Act, styled itself as the enemy of progress, a party for whom the Constitution is ringed by a picket fence. The people for whom its protections were meant are ensconced safely within while the rest of us fend for ourselves outside, forgotten, doing our best to avoid the lesser angels of America’s nature.

At its core, that is the province of Originalism as a method of interpreting the Constitution. The vintage Instagram filter, sepia-toned, nostalgic, ever the attempt to return to a better time. Law schools are where orignalist reasoning finds its greatest praise, and it should be no coincidence that one would be hard-pressed to find elsewhere a higher concentration of intellectual onanists.

The Supreme Court Bench is hardly the place for masturbation.

 

II. Originalism, or “I Don’t Know None of These Niggas so Get Off My Block”

Paul Brest begins his 1980 article on Originalism by explicitly, and with crystalline clarity, defining what is meant by an “originalist” interpretation of the Constitution, wherein binding authority is accorded to the text of the Constitution or the intentions of its adopters.[2] When put alongside Scalia’s essays, a Taft lecture[3] and “A Matter of Interpretation,”[4] one can already imagine Scalia squirming at the misinterpretation of his own speech. To Scalia, the matter does not seem to be a choice between the text of the Constitution or the intentions of its adopters, but rather a marriage of the two, like the left and right lenses calibrated just so to give the bespectacled the best vision possible.

Scalia concedes that his approach would turn Justices into historians, and the enterprise is riddled with fault lines that could, if navigated by minds less nimble than his own,[5] collapse the whole structure of meaningful and consistent constitutional interpretation. And that seems to be Scalia’s ultimate goal: consistency. Not merely consistency in his own approach to the Text and its interpretation, but a consistency regarding the intent of the Framers carried through into the present decision before the Justices at any given time. This, aside from a perceived general proclivity for contrarianism, is what seems to allow him to praise Taft, not despite, but because of the way his opinions turned against the general spin of the progressive movement that propelled the country’s political bend at the time, or, the harsher critics might say, against the general spin of progress itself. “And further still, it requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.” (856-7)

Ronald Dworkin[6] calls Scalia’s brand of originalism “textualism,”[7] this, despite Scalia’s assertions that drowning oneself in secondary and primary sources is the only way, upon coming back up for air, that one can appreciate a proper interpretation of this concretized and calcified document.

230 years ago saw the drafting of the most important document in United States history, on which every legal edict since is supposedly based. The Originalist knows this.

The Constitution itself, a matter of political compromise (of the highest order) could possibly be evidence that he is right in his method of interpretation. But Scalia’s valiant contortionism and his own brilliant efforts at attempting to reconcile present questions with answers from our national past is, itself, evidence that he might be wrong.

 

III. Originalism is Dead, Long Live Originalism (Nah, Kill that Noise For Real)

The reigning hypocrisy of Scalia’s brand of skyscraper originalism is its tendency to allow for constitutional development that falls outside the scope of his persuasion by arguing that inertia and the fact of continued reliance on these developments are what necessitate its continuance.[8] Another point that Balkin, in his 2009 paper, addresses regarding skyscraper originalism and the “original meaning” dogma is that while it might prevent future generations of American government from straying too far from the principles held in highest esteem by the Framers, it would constrain much of the potential good that could have been carried out by those selfsame progenitors. With respect to the Cruel and Unusual Punishment clause, for instance, skyscraper originalism provides no impetus for employing punishment less cruel than we were in 1791.

Framework originalism, however, through its own contortion (and a contortion I’m not sure professed originalists would necessarily endorse), accords itself with progressive developments in American society and spares its cheerleaders the embarrassment of perhaps having occasionally found themselves on the wrong side of history.[9]

Constitutional Law Professor Randy Barnett[10] includes or, at least, alludes to that feature of the document in his attempt to pass the Constitution through the prism of contract law. He says, outright, that he does not believe the Constitution is a contract, but does outline a variety of features that might, in his opinion, assist in understanding the appeal of an originalist interpretation thereof. [11] A further contortion: employing the parol evidence rule to account for extrinsic evidence.[12] It is necessary to take into account the context in which a word or phrase appears, much to the chagrin of the first-year law student who learns that “consideration” as it pertains to a contract is not the consideration he or she might have been taught by his or her parents or schoolteachers to exercise amongst compatriots.[13]

With a surfeit of hubris, I might offer Barnett a different keyhole through which to pass the Constitution, and that might be, at the risk of inflaming politico-religious sensibilities, the Ten Commandments. The analogy is not a complete fit, what with references to graven images and prohibitions against empty invocations of the Deity, but the position of negative commandments and the transition from impersonal directives to more intimate edicts does, in many respects, mirror the Constitution. The additional benefit of the comparison is that it provides a perhaps more apt template for analyzing the textual issue. Are the Ten Commandments to be taken literally in 2017? If so, what are we to do with the phrase “bear false witness” as such phrase is not in common usage today? Though the Commandment to honor one’s father and mother is an implicit admonition to procreate, was it so understood when the Commandments were drafted or is that merely a modern understanding/interpretation grafted onto what we may think those words purport to have meant “back then?” How did the Drafter of the Ten Commandments intend for penitents to keep the Sabbath holy? What did it entail then? What does it entail now?

Rather than pretzel the Constitution into some sort of contractual posture, the easier and perhaps less mind-bending course might have been to choose a source document that better illustrated the points he intended to make. Because, again, the Constitution isn’t a contract.

 

IV. What To Do When Mad People Show Up To Your Party Who You Forgot You Invited

One might posit that Originalism (both New and OG) operates out of a bloodless theoretical naïveté, or if one wishes to be particularly caustic, one might accuse this methodology of constitutional interpretation of cowardice. So far, Originalists have ducked the really big issue, skirted around the whip-scarred elephant in the room. Theorists walk around that tainted space, perhaps in the belief that if it is ignored, it can be treated as anomaly, a singular happenstance rather than the pervasive boil on America’s flesh. If the racial imperative that powered it is a more pervasive thing than that, if it is indeed more widespread than a specifically historical orbit of hurt, then it is perhaps unavoidable.

I’m talking about slavery.

Which, of course, leads to talking about normative considerations. To great surprise, there are indeed constitutional law scholars spitting those bars. One of them is Robin West.[14]

Professor Robin West’s frustration with the paucity of scholarly discourse from constitutional law scholars around precisely the intersection of normative concerns and constitutional interpretation is not a cry into the void.[15] But her grief is powered more by a lack of normative considerations than anything else, a lack whose remedy, she suggests, is to question the document’s legitimacy.[16] More specifically, a moral interrogation of the Constitution must be critical of the document’s legitimacy as a tool for governance.[17]

But let’s not throw the baby out with the bathwater. With the Amendments, we have a cure for the evils built into the Constitution of 1787.

Hear me out:

For example, the Fourteenth Amendment invalidated Article 1 §2’s three-fifths clause. The Thirteenth Amendment invalidated Article 4 §2’s Fugitive Slave clause. Those are the evident changes. Less evident but perhaps just as powerful is the fact that those Amendments are now inseparable from the rest of the Constitution. Not only are they part and parcel of the Constitution’s fabric, they address its deficiencies. They attempt to cure its infirmities with an element of permanence. The discretion of judges and legislators and members of the executive branch is not enough to more distinctly outline the contours of the rights that may or may not be embodied in the structure of the Constitution.[18] If it is in the Constitution, it cannot be ignored. And if one is wedded to efforts at determining the intent of base-text clauses, then one must be even more invested in gauging the intent and meaning of the Reconstruction Amendments. In this brand of intratextualism, the intention behind the Thirteenth, Fourteenth, and Fifteenth Amendments is the more important element. If the historical-linguistic context of a rights-based base text clause raises questions, the historical-linguistic context of rights-based amendments can provide answers.

Frederick Douglass[19] once wrote: “[I]f the declared purposes of an instrument are to govern the meaning of all of its parts and details, as they clearly should, the Constitution of our country is our warrant for the abolition of slavery in every State of the Union.”[20] Douglass interpreted the document’s pieces in light of its whole.

I have long searched for the Originalist who feels the same lust over the Reconstruction Amendments as he does for the base text of the Constitution, who salivates over universal adult suffrage, and who gets hot and bothered at notion of the explicit grant of rights to citizens that had formerly been doled out at the discretion of individual states.

Rather than attempt clause-bound interpretivism, the most effective method of interpreting the Constitution in accordance with what is currently understood as the body politic, the truly expansive iteration of ‘the people,’ may be to view the base text in light of the Amendments, to pass the base text through the lens provided by those rights-granting Amendments. Due process is accorded new meaning in light of the Amendments. The Eighth Amendment must be read in light of the peculiar institution that necessitated the creation of the Reconstruction Amendments. The Bill of Rights in its entirety is now made accessible to that part of the population formerly perceived as property.

But to posit to an Originalist that their mode of constitutional interpretation could maybe perhaps include the Amendments in their analysis would be to watch that person collapse into a white dwarf before exploding.[21]

The Originalist who is able to convincingly apply their approach to the Founding Document in a way that contains its entirety will be the Twelfth Imam. Which is to say, we’ll all be dead before that person gets here.

 

V. “Tap Me In! Tap Me In!” – John Hart Ely[22]

Let me call for backup.

Former Stanford Law School Dean John Hart Ely’s signal hypothesis in his landmark book, Democracy and Distrust[23], seems to be that constitutional provisions should be read, not as efforts to establish substantive rights, but as safeguards against the infringement of procedural rights, safeguards against the infringements upon the right to participate in popular self-government. The representative ingredient in our democratic soup is the most important, he claims, not just a spice added on for flavor but the principal out of which the whole project is made. His takedown of clause-bound interpretivism is effective, in part because it points out the technique’s inevitable slouch towards inconsistency and, in part, because the critique points out very adroitly the propensity of judges to import value judgments into opinions that are, in Ely’s opinion, very much divorced from the Constitution’s purpose, though they purport to share the document’s fabric.[24] Upper middle-class judges making upper middle-class value judgments. His dismantling of tradition as a possible source for fundamental values echoes the “Dead Hand” detractors of (New) Originalism.[25] Deriving fundamental values from past consensus provides no guarantee that such values will accord with or allow for the exercise of the minority’s values.[26] The terminus of that process is unchecked tyranny that depends on the majority’s benevolence or its capacity thereof.[27]

 

VI. Me No Conversate With the Fake

Aside from my general misgivings in reversing human understanding of the world and the universe to a point where life expectancy was what it was in the late 1700s and chattel slavery was a permitted evil, aside from general misgivings regarding the presence of contradictory “source materials” and the opportunity of hardline Originalists to pick and choose which Framer or Framer-affiliate on which to build their castle, aside from general misgivings regarding the misapplication of originalist interpretation, my principal disappointment with Originalism is that it assumes the generation of the Framers was and will always remain the most visionary, most brilliant, most prescient generation of Americans that this country will ever see. It assumes the best of this country is in the rearview. Which, if the country were run by Originalists, would in fact be the case.

But Originalist thinking isn’t just faulty. It’s pernicious.

To exercise originalist thinking in the application of rulings that affect human lives is a morally contemptible act. Reactionary in vision, its myopia astounds. Its proponents dress themselves in frills, attempting to be clever, so that attention is drawn away from the fact that they too wear red “Make America Great Again” hats over their $67 haircuts. Their facility with multisyllabic words has often served as ample disguise for what, in the end analysis, is intellectual dishonesty. Or, perhaps more damning to the assertion that the Supreme Court stands apart from congressional and executive machinations, politics by other means. A sepia-toned valorization of gun rights that willfully blinds itself to the present, complex reality of gun ownership and commerce in America. A cowardly deference to Congress while eviscerating constitutional protections embedded in legislation like the Voting Rights Act. The hipster pining for Victorian England, vomiting its imagined décor over the interior of his studio apartment, entirely ignorant of the carnage enacted by the two-headed chimera made of industrialization and colonialism.

It is telling that professed “Originalists” have always skewed conservative, as though what the Founders and Framers originally meant when drafting the Constitution was that the fence surrounding the Document never be mobile enough to accommodate expansion. It is anathema for the Originalist to consider that perhaps one day the Constitution’s protections would be afforded to Americans who are not those original white male landowners.

Originalism is the enemy of progress. Its utility in any system of governance ends with its being an exercise in intellectual masturbation. Tin men whose intelligence is entirely artificial, their thinking belongs only in textbooks written by law professors whose pestilential course offerings should be given the widest of berths. Let the hard or soft covers of a casebook be their fence. An Originalist’s proper place is on a shelf, collecting dust, to be looked at and, depending on your predilections, chuckled at with bemusement or sneered at in scorn.

For the only way to deal with an Originalist, which they might actually find fitting, is to taken them literally. Never seriously.[28]


[1] Surrounded by Satanic quail hunters on a retreat like wtf

[2] Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980)

[3] Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989) (part of a lecture series dedicated to the memory of Chief Justice William Howard Taft.) (Yes, after serving as the 27th POTUS, he decided he couldn’t get enough and became the 10th Chief Justice of SCOTUS, which may have actually been his dream gig to begin with but w/e).

[4] Antonin Scalia, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 37-47, 144-49 (rebuttal to Dworkin, in FN 7) (1997)

[5] See, here.

[6] Dat Nigga Don

[7] Ronald Dworkin, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 115-27 (1997)

[8] Jack M. Balkin, Framework Originalism and the Living Constitution, 103 NW. L. REV. 549 (2009)

[9] In essence, framework originalists are trying to have their cake and eat it too, as though fidelity to original meaning can be divorced from original application. Taking into consideration the present-day applications of the Constitution-in-practice is basically living constitutionalism, my nigga. FOH.

[10] Another fuckboy originalist, trying really hard not to be a fuckboy.

[11] Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611 (1999)

[12] The parol evidence rule is random contract-theory-related bullshit. The reason he brings it up here is because New Originalists (fuckboys at least pretending to try not to be total fuckboys) are trying to distinguish themselves from their forebearers by distinguishing “original intent” from “original meaning.” Original intent means the subjective intent of the people who wrote that shit. Say an Originalist walks into a bar and finds a perfectly preserved letter from George Washington to Martha Washington telling her JUST what he meant when he was talking about the power to lay taxes. That would be evidence of original intent. “Original meaning” on the other hand would ask, well, if GW wrote “fuckboy” in article 2, what did “fuckboy” mean precisely in 1787? More precisely, what did it mean in 1787 to call someone a “fuckboy”? Sort of like asking yourself what were the consequences or results of the words you were using if you’d used them back then. See how much effort it takes for a fuckboy to try not being a fuckboy but still believe that fuckboy behavior is permissible?

[13] Real-life definition of “consideration”: being kind to others n shit. Law school definition of “consideration”: what you give another person to make ‘em do shit for you. I know. I hate everything all over again.

[14] Prof. Robin West actually believes that human beings are a thing in America and has also contributed to perhaps my favorite field of study related to the law. For feminist takes on Constitutional theory, you could do worse than peep her bibliography.

[15] Robin L. West, Constitutional Scepticism, 72 B.U. L. Rev. 765 (1992).

[16] Some of the scholarly discourse centered on this very question has given rise to a “constitutional skepticism,” calling into question the document’s integrity and forcing an interrogation of its ugly parts, its evils, and the fact that it is a document that was formed during the commission of America’s Original Sin. Again, I’m talking about slavery.

[17] We interrupt this message to inform you that, in case it wasn’t clear already, Originalists, like GOP legislators, don’t care about people.

[18] In short, these Justices ain’t loyal.

[19] Whom 45 and his Press Secretary Sean Spicer seem to still think is alive, like wtf?

[20] Frederick Douglass, The Life and Times of Frederick Douglass, 261-262 (MacMillan Co. 1962) (1892).

[21] Seriously, though, if y’all Originalists (slash Textualists) would bust a nut over the Fifteenth Amendment the way you do over the Commerce Clause, we wouldn’t even be beefing on some Hit ‘Em Up shit.

[22] This guy.

[23] John Hart Ely, Democracy And Distrust: A Theory of Judicial Review (1980)

[24] People say this a lot about Communism too. Like, Communism is perfect but Communists are not. Neither here nor there tbh.

[25] “Dead Hand” is like dead people literally telling us living folk how we should go about the business of living when they obviously aren’t doing it right. Here, it’s like what should some fools from the 1700s tell me about whether the FBI has a right to the contents of my iPhone.

[26] The Framers literally did not want black people to vote.

[27] The dude ain’t perfect, and if you wanna hear me go in a little bit more on the imperative of a participational component in Constitutional interpretation, get at me, and I’ll oblige.

[28] No, but for real, Senate Democrats. BLOCK DAT NIGGA!

Advertisements