I was in college when Antonin Scalia joined the Supreme Court in 1986, so I was too busy partying to pay much attention as the seeds of our current doom were sown. But I do remember being repelled by his smarmy condescension during a TV interview.
As I recall it all these years later, Scalia complained that people reacted to his originalism philosophy as if he had confessed to a penchant for cannibalism. But I now know they were right to do so; Scalia may not have dined on human flesh, but he and his fellow travelers were chowing down on our rights and potential as a nation.
Dahlia Lithwick gets it — she wrote about the destructive power of the originalism scam in Slate in a piece titled “How Originalism Ate the Law.” An excerpt:
America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.”…
Shackling one’s understanding of the law to the drunken methodology of “originalism” doesn’t simply ignore the technological realities of modern life, like serial numbers, and bump stocks, and the vagaries of online content moderation. It also turns every judge and lawyer into a part-time Revolutionary War reenactor and part-time recreational archivist (whose bare-bones understanding of history tends to become immediately obvious). As the Supreme Court burns down decades of doctrinal progress and a century of modern government, it leaves only skid marks in its wake…
This all happened in the course of a short very few decades. It happened because an entire Potemkin village of originalist academics, originalist law-review articles, originalist theories—chiefly funded by very contemporary oligarchs—was built up to present it as a reversion to the way things always were, as opposed to a revanchist attack on modernity itself… Originalism is a modern-day lie about history that presents itself as historical. And originalism, marketed in the 1980s and ’90s as, at bottom, a theory of judicial restraint, has now become an uncontrollable and unpredictable Tasmanian devil that has gobbled up decades of precedent, the regulatory state we had built to ensure that we have clean air and drinkable water, and the line between church and state. Perhaps most viciously, originalism has chewed up and spit out the 13th, 14th, and 15thAmendments—the very history that was committed to text in order to protect the idea of a pluralist, generous, and expansive vision of liberty as the country finally ended the atrocity that was slavery. As Justice Ketanji Brown Jackson has pointed out on more than one occasion, the use of history itself to erase history is now a central part of the originalist project.
The whole thing is worth a read, and it’s part of a larger effort by Lithwick and others to define ways to fight our way out of the originalism trap. Like all our battles to hang onto a semi-modern democracy, it will be the work of generations. (Le sigh.)
Open thread!
Trump’s NY Criminal Trial, Day 16 (Michael Cohen)
OzarkHillbilly
You must be feeling better Betty, if you’re up to posting already. :-) Good to see it. This place needs your biting sarcasm and wordsmith gifts
rikyrah
Hope that you are resting and healing, BC.
Suzanne
…..but does anyone really know for sure?
Elizabelle
Great to see you posting Betty. Did you draft this one in the room with a view? Of Tampa? Driving, but I will read the article later.
I am happy this afternoon that Scalia is still 6 feet under.
rikyrah
I hear originalism.
I know that this is someone who doesn’t value my HUMANITY.
Not as an Black American.
Not as a woman.
It’s obvious.
Trivia Man
@Suzanne: It would be irresponsible not to speculate
Mr. Bemused Senior
What really happened on all those hunting trips with Dick Cheney? The ones where they didn’t shoot anyone in the face?
Geminid
I always figured “Originalism” was just a rebranding of “Strict Constructionism.” Reactionaries needed a new label for their judicial philosophy, such as it was, because they gave Strict Constructionism a bad name during their fight against racial equality in the 1950s and 60s.
Harrison Wesley
Antonin Scalia served America its own Constitution, with originalism and a nice Chianti.
Chris
I said years and years ago that my basic beef with religious fundamentalism is that it’s ultimately just another denomination, but trying to pretend otherwise. Like any old denomination, fundamentalists pick and choose which parts of the Bible (insert other text or tradition as needed) they find most relevant to them, come up with new interpretations for various lines in the text, and try to connect a centuries-old and very widespread religious practice to problems that are extremely specific to their particular time and place.
The difference is, fundies don’t admit any of this. They just handwave it all away as “well, I’m just doing this because it’s what Jesus would have wanted.” Which is, of course, what every denomination tries to do. But fundamentalists believe they’re honestly the first people in two thousand years to whom it’s occurred to do this, and instead of explaining why they believe X is “what Jesus would have wanted,” they simply end up saying it, as a ritual invocation, before anything they end up wanting to do.
Originalism works the same way, just swapping out the U.S. Constitution for the Bible. Pretend you’re somehow the only one who “just knows” what the text means and the first one who’s ever thought of following it. Then just invoke it as a magic formula that sanctifies whatever it is you want to do anyway.
CaseyL
And now SCOTUS has come up with something called “the major doctrine issue” which, near as I can tell, means they can take cases where the Plaintiffs have no standing, and in fact no case, just on the basis of “we feel like opining on this.”
The gay wedding website case was one of those.
Hoodie
Historically, courts always had the power to act in equity. Trying to say that every legal decision can be rendered to black letter law by historical analysis of legislative intent is complete horseshit and ahistorical. The originalism scam is in many ways similar to the scam Friedman and others started regarding the purpose of corporations, i.e., that their sole purpose was to maximize shareholder value. Both are ways of cutting off debate by oversimplification. It’s analogous to the way fascist governments try to limit vocabulary to suit their needs.
waspuppet
@Chris: This is exactly right. It’s turning our country into a church, the Founders (a bunch of white guys with some good ideas but who also had no problem owning people) into gods and, conveniently, themselves into priests.
They’ve gotten more and more open about it, talking more explicitly about “what the Founders wanted.”
trollhattan
What do these folks think of the Surveillance State? Can we record their homes and automobiles 24/7? Who gets access to the data?
catclub
@trollhattan: How about they SELL that data to other states, with a proviso that those states will cover their legal bills for violating any civil rights?
Suzanne
@Chris: Fundamentalists of every stripe ultimately want to offload the thinking. It blows my mind. They will deny what is literally in front of their faces if it has implications that make them uncomfortable.
Like I said about the Dobbs decision. Those of us who are pro-choice will bring up important real-life situations like ten-year-old-girls being raped and impregnated by their fathers, and fundamentalists will just clap their hands over their ears and shout LA LA LA LA LA. They are too stupid to confront it. They avoid it.
It’s the worst kind of intellectual dishonesty.
dm
Originalism wasn’t the only bogus legal theory from that time. There was also Robert Bork’s idea that anti-trust laws should concern itself solely with how outcomes hypothetically affect consumers, and not concern itself with the concentration of economic power, ushering in a new era of near-monopoly.
Bill Hicks
So many words to try to be polite and say repubs are traitorous scum, but I guess, progress.
Martin
@Geminid: Originalism is just legal phrenology. Scalia pulling out the big calipers to measure the diameter of Madison’s skull so he can divine his true intent.
Betty Cracker
@Geminid: Lithwick says even smart, capable liberal judges (Kagan, for one) sometimes bought into or at least treated the originalism theory like a respectable argument, early on. It’s odd. It was always self-serving bullshit on stilts.
terraformer
I often think of where we’d be as a country and a society if we weren’t saddled with these “originalist” kooks who are so clearly hell-bent on erasing decisions of the past to create a future that gels with their internal pleasant fictions
We’re constantly having to return to battles previously fought – and won – because a subset of the American populace is prone to mouth-breathing and to refusing to learn the lessons of history, voting against their own best interests due to their susceptibility as easy marks who can be led around by their own hatreds and high-school psyches
Math Guy
It is hard to take “originalist” arguments seriously when they take such an expansive view of the second amendment and such a restrictive view of the first and fourteenth. And, do they still believe that some members of our society should only count as 3/5 of a person for census purposes?
Omnes Omnibus
@Betty Cracker: Legislative intent is one of the tools that lawyers and judges use to interpret statutes. Originalism is legislative intent on steroids and to the exclusion of other tools.
rmjohnston
Originalism is particularly problematic when it comes to constitutional law, as it denies that that the consent of the governed has any relevance to constitutional legitimacy. Declaring modern laws unconstitutional due to their failure to adhere to some ostensible 160 to 250 year old understanding of the Constitution is an inherently tyrannical act, especially given the effective impossibility of meaningfully amending the Constitution in modern times, and would be tyrannical regardless even if the declared understanding of the Constitution is historically legitimate (which, as partisan right-wing hack judges make for terrible historians, it never is).
There’s a reason that originalists treat the Constitution as a sacred, biblical text handed down by god; if the Constitution is not a sacred text then, under originalism, the Constitution is just a collection of pieces of paper that no one has any reason to care about.
SiubhanDuinne
@Hoodie:
I enjoy seeing those words in close proximity, and am considering submitting this phrase for nomination as a rotating tag.
Betty Cracker
@Elizabelle: They sprung me yesterday, so I’m back in the swamp. :-)
TBone
I support this think tank/law firm because of their commitment to fight for the progressive, enlightened values of our Constitution. Here’s a very recent article on Scalito, as I call him.
https://www.theusconstitution.org/news/trump-gun-owners-and-jan-6-rioters-tough-on-crime-justice-alito-displays-empathy-for-some-criminal-defendants/
Parfigliano
We constantly have to re-fight battles because a vocal part of the population insists on forcing the rest of us to live according to their beliefs/interpretations of a dumbshit idea called “god.”
ColoradoGuy
One of the many outcomes of the infamous Powell Memo.
Geminid
@rmjohnston: The notion that the Constitution was somehow Divinely ordered faced a test in January, 2011 when a new Republican House Majority kicked off that Congress with a reading of the Constitution. Two passages in particular challenged that notion: the section enabling the capture and return of fugitive slaves, and the notorious “3/5ths” provision boosting representation of Congressional districts with large numbers of enslaved people who could not vote. The Republicans simply skipped those passages in their recitation.
Jackie
I still can’t wrap my head around the fact that Scalise and RBG were good friends. They traveled abroad together and shared a love for the opera. Mind boggling.
A Man for All Seasonings (formerly Geeno)
@Geminid:
No – they’d like very much to re-implement them
Betty Cracker
@Jackie: Some people are really good at compartmentalization. Me? Not so much!
MomSense
Sometimes I like to amuse myself by making a list of things that didn’t exist when our constitution was ratified. It’s a really long and consequential list.
Also, too the fact that the founders designed a process to amend the constitution says to me that they anticipated changes.
SuzieC
I’m waiting for the originalists to construct a tortured argument abrogating the 19th Amendment, as not what The Founders intended 275 years ago, backed up by Edward Coke’s treatises on witchcraft. I’ve read that some fundies are already working on an argument for Project 2025.
Geminid
@A Man for All Seasonings (formerly Geeno): Yes, they did skip them. The passages were superseded but never actually repealed.
cmorenc
Recall that Scalia was Reagan’s next-up nominee in 1987 after Robert Bork’s nomination was defeated 58-42 bc Bork’s legal outlook was deemed too extreme and reactionary. It’s astounding in retrospect that Scalia was confirmed 98-0 by the exact same Senate composition that had voted down Bork. Republicans used to nominate moderates like Stevens (Ford) and Souter (Bush the 1st), although Bush also inflicted the arrogantly corrupt Clarence Thomas upon us. Can’t think of much good to say about Scalia, except he had personal integrity for such a reactionary Troglydite – which does not at all excuse the horrific damate he inflicted upon American law.
Melville
To paraphrase: “If History is against you, pound the Text. If the Text is against you, pound the History. If both are against you, make shit up.”
Omnes Omnibus
@Geminid: The passage of the 14th Amendment did actually repeal the 3/5 clause unless by repeal you mean that they literally use the word repeal.
gene108
What would make originalism more persuasive for me, as a legal theory, is if originalist judges held seances to summon the spirits of the Founders forth and have these spirits answer questions on what they meant.
This way we are not subject modern biases in interpreting the Founders intent.
dm
I’ve always thought that originalism was self-contradictory, because the Constitutional Convention deliberately did not preserve their minutes. All we know about the convention comes from recollections by the participants.
But it’s clear the original intent of the founders was that we’re not take into account their original intent.
Eyeroller
@dm: Even the slaveholding Framers (hallowed be their names) recognized that things would change. This is a genuine quote from Thomas Jefferson (as for many famous people, there are a lot of bogus quotes):
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as a civilized society to remain ever under the regimen of their barbarous ancestors.
scav
Between the judges that claim to know the mind of the founding fathers and the evangelicals who insist they know the mind of god, we’re in for a bumpy ride.
Geminid
@Omnes Omnibus: OK.
I still stand by my comment at #30. I would have done better to ignore the commenter I responded to at #36.
lgerard
I’m sure the originalists on the court will adopt the Founders views on immigration.
Very much in favor and foreseeing no barrier to it.
Jeffro
The fact that originalism always, ALWAYS aligned with whatever ‘conservative’ justices wanted was a bit of a tell.
grube
Another “always thought originalism was a load of crap”, fwiw.
Ever since Fat Tony took his seat.
Same thing as fundamentalism.. cherry picking at best, wholesale fabrication at worst
– grubert
Gex
@terraformer:
Sigh. I tire of this “they vote against their self interest” argument.
The Democratic nominee for president has not won the white vote since 1964. A majority of white people have been saying, unequivocally, that they see their self interest being the maintenance of a racial hierarchy where they are on top.
People don’t accidentally vote against their interests. They are motivated by their interests and the white electorate has been UTTERLY CLEAR where their interests lie. It does the left/liberals no good to lie about this.
Gex
@Gex: To expand on this: White people have more wealth, higher incomes, more access to health care, are longer lived, SLEEP MORE, and on and on. There are clear rewards for occupying the top of the racial hierarchy.
And yet I have to listen to white liberals argue that these people don’t pursue their self interest.