|I fought the law|
and the law won
|We the People do ordain and establish this|
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“”'And only one for birthday presents, you know. There’s glory for you!'
'I don’t know what you mean by “glory,"' Alice said.
Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'
'But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.
'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.''The question is,' said Humpty Dumpty, 'which is to be master — that's all.'
|—Lewis Carroll's Through the Looking Glass|
Originalism (or strict constructionism) refers to a school of thought concerning the interpretation of law, especially constitutional law, by a judge. The idea behind originalism is that a law must be interpreted from the viewpoints extant at the time of its inception and not those of the present day.
While not common in the rest of the Western world, originalism is popular with United States conservatives in general and conservative U.S. judges in particular. This can be best observed in the push for originalist judges to be nominated to positions where constitutional law cases will most likely be heard.
Conservatives have grown fearful of conservative ideals losing their cultural place as a result of constitutional legal decisions that have been handed down in recent times due to modern interpretations of the constitution. They hope that if judges hold only to the original text and intentions of the laws when they were written, they may be able to better maintain their conservative ideals in society.
The general intent is to force originalist interpretations into all judicial decisions so as to limit the ability of judges to reinterpret the constitution to align with current societal thinking.
Problems with originalism
The First Amendment presents a real quandary for an originalist judge. The original interpretation, specifically, of the "free speech" is... particularly troublesome. Historically, at the time of the Bill of Rights' ratification, many states actively prohibited certain speech such as blasphemy and sedition. While the First Amendment did not apply to the states until its piecemeal expansion throughout the 20th century, state criminal prosecution of speech is problematic in the sense that originalism rests on the proposition that we have to get exactly into the heads of the Framers in order to understand what they produced.
Many of the states which prohibited the aforementioned types of speech also had provisions in their own state constitutions that protected freedom of speech. Thus, if the contemporary view at the time of the adoption of the Bill of Rights was that blasphemy, for example, was not speech, then judges today must not consider it as speech as envisioned by the First Amendment. Yay for liberty!
Moreover, around the time of the adoption of the Bill of Rights, there were also much broader traditions of press freedom as evidenced by writings of political leaders and the absence of prosecutions or civil actions for defamation in 18th century America. Further, the Framers split on the issue of seditious libel (criticizing the government): some considered it protected to some point by the First Amendment, some did not, a dilemma evinced both by the opposition to the First Amendment by many of the Framers, and by the debate over the Alien & Sedition Acts of 1798. The issue was not definitely resolved until the 20th century, with the Holmesian revolution of First Amendment law. Holmes' interpretation of the First Amendment, and the liberalizing of the amendment, is a doctrine almost completely of judicial invention, created more in recognizance of what have become American values than what were American values, although it is consistent with the views of free expression widely expressed in 18th century America. This, clearly, is a great dilemma: supplemented by the fact that the text of the First Amendment…
“”Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...
... seems, textually, to compel a position more radical than most conservatives (and liberals) would take: absolute free speech. This conclusion is inescapable unless one admits that some texts — indeed, constitutional texts — require more nuanced analysis.
The Eighth Amendment prohibits excessive bail fines and cruel and unusual punishment. Originalists have taken this to mean that it is okay to execute criminals since the death penalty was widespread in the 18th century. However, several other forms of punishment were also widespread at that time, such as public flogging or placing criminals in the stocks. Today, such punishments are considered very cruel and are very unusual (instead, we opt for the option of depriving people of their freedom for extended periods of time).
The Ninth Amendment ensures that rights guaranteed in the Constitution are not the only rights that citizens can have. We don't have to explain what an originalist's take is on this.
The Tenth Amendment reserves powers not granted to the federal government to the states. Although it is incredibly rare for a law to be struck down on the basis of the Tenth today originalists and strict constructionists will often declare just about anything not specifically mentioned in the Constitution to be unconstitutional. See states' rights and the Tenther movement.
“”The government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.
A significant problem with originalism, specifically relating to the Constitution of the United States, is that a document written in the 18th century cannot perfectly relate to the United States of the 21st century, so interpretation will always be required. In modern times, many issues come up which simply have no analog from the 18th century, and thus we must seek to guide ourselves, rather than trying to ask how dead men's opinions on other matters might tell us what to do.
Interestingly, asking one of those dead men (were it possible) would likely result in a response along the lines of "We already told you what to do," and point to Article 5, which had been put into the Constitution to specifically address this problem, and would be used quite a bit during the lifetimes of those original authors. Unless, of course, they were too preoccupied exploring modern conveniences to answer our questions.
Ironically, in order to determine the "original intent" of the documents that are actually law, originalist scholars must resort to analyzing and interpreting many contemporary documents and papers of the principals involved in the process.
Legal scholar John Ely, author of Democracy and Distrust, believes that originalism involves a certain requirement of lying to oneself, in that originalists support the theory because of the belief that, if nothing else, it is at least objective, and limits judicial activism or departure from established law. However, Ely notes that, since there are multiple versions of "tradition" and "original intent", and indeed multiple interpretations of history, originalism is inherently incapable of being as objective as it promises.
The Biblical literalism of law
Originalism shares both superficial and deeper characteristics with Biblical literalism. The similarities have both attracted criticism from opponents of originalism, and supporters from Biblical literalists (particularly because originalism has often resulted in socially conservative rulings). Both originalism and literalism require a literal reading of the source documents, the difference being that literalism regards the Bible as inherently true and good, whereas originalism regards the Constitution in terms of legal positivism where the truth and goodness of the Constitution is irrelevant.
Don't expect to hear this drumbeat from an originalist on issues in which their positions run counter to the original intent of the Framers. For example, it has been historically understood that appointments to the Cabinet and judiciary are largely the president's prerogative, and the Senate's role, in confirming the president's nominations, is to weed out unqualified candidates. The practice of refusing to confirm nominees for not having the same political inclinations as the Senate's majority party is fairly clearly not the Framers' intent, but that doesn't stop Senate Republicans from leaving a host of positions unfilled even though they're the ones who typically bleat about "original intent."
Former Supreme Court justice Antonin Scalia and current Supreme Court justice Clarence Thomas are known for adhering to an originalist viewpoint. Failed Supreme Court nominee Robert Bork also had originalist views. Hugo Black, the liberal justice most responsible for the fact that state governments can no longer violate individuals’ freedom of speech, was an early originalist/textualist appointed by Franklin Roosevelt.
- Through the Looking-Glass, and What Alice Found There by Lewis Carroll (1871) Macmillan.
- Shear, Kenneth Unoriginal Misunderstanding (Libertary Ed. 2009)
- The most recent one being Defense of Marriage Act (section 3).
- Available at Amazon here.
- Biblical Literalism and Constitutional Originalism by Peter J. Smith & Robert W. Tuttle (2011) Notre Dame Law Review 86:694-793.
- Legal Positivism by Leslie Green & Thomas Adams (First published Fri Jan 3, 2003; substantive revision Tue Dec 17, 2019) Stanford Encyclopedia of Philosophy.