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Antonin Was Right: Originalism is Booow-Guus [1]
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Date: 2022-11-16
Scalia wrote that those seeking original legislative intent from past contemporary documentation will simply pick and choose to find what they want to find. It follows that originalism, looking at Constitutional intent from past contemporary documentation, is not a principled analytical tool.
Most of the country agrees on some broad themes for the original intent of the Constitution. These include:
That power must be split between the branches of government to avoid tyranny;
That there are some areas of private life where employing the power of the state could be tyrannical, such that safeguards are required;
That economic union was needed to assure the financial viability of the country; and
That there are powers reserved to the states.
However, “Originalism” seeks answers outside these consensus views, and for which answers lawyers have little credibility towards establishing a consensus.
Even if one were to suppose that finding original intent might be a worthy analytical goal, the data sources to which originalism turns are clearly defective. To start with, there is no way on September 17, 1787, at the end of the Constitutional Convention, nor today, 235 years later, to synthesize the sentiments of the 39 approving delegates. Heck, controversies on contracts instruct that it is very difficult to synthesize the past consensus of agreement between merely two parties.
After the convention, there were thirteen ratifying state conventions. Even if there were a way to synthesize the views of any one convention, nonetheless we know that the synthesized views of each of the thirteen conventions would differ. It follows that there is no way to establish any “original intent” from the stray documentation surrounding the formation and ratification of the Constitution.
Still less is it credible to turn to political pamphlets used to promote ratification of the Constitution to seek such “original intent.” These pamphlets embody politics, meaning for example that they were often biased to address the issues of states reluctant to ratify. They do not synthesize original intent. I am sure that one can cherry-pick all kinds of pamphlet arguments and assert original intent. Would we mandate that the world’s largest economy be managed by a part-time legislature because Hamilton thought this a selling point for New York ratification (Federalist 84)?
Further, there is little validity to making inferences about original intent from actions and enacted laws of the 1780s or 90s, or of the 1860s after ratification of the 14th Amendment. Such reasoning is comparable to looking at the cutthroat thoughts and actions of a business tycoon on Monday, and ignoring their aspirational thoughts on Sunday morning. While we should ever seek to meet the aspirations of a more perfect union, the grubby politics of the day are often on display, now as they were in the 18th or 19th centuries. The politics of the day are no indicator of higher, Constitutional, aspirations.
Tellingly, applying originalism means that judges will look at one writing in preference to another, at one historical conjecture in preference to another. Inevitably, the judge will focus on “sources” that match their bias. As Antonin Scalia stated, it is “dangerous to assume that, even with the utmost self-discipline, judges can prevent the implications they see [in legislative history] from mirroring the policies they favor.” (Thompson v. Thompson, 1988) In regard to this bias, there is no principled difference between legislative history and the historical documentation to which Originalism appeals.
The Dobbs opinion illustrates this danger of wishful thinking and cherry-picking historical analysis. Perhaps most glaringly it does this starting at p. 18 of the opinion, where it interpolates from the use of the term “child” in two 18th century British cases to conclude that, in the British law overlapping our nation’s founding, an early term abortion was wrongful. But astonishingly, three pages later, in a different context, the opinion admits that in the time period the term “child” was not used as Justice Alito had just interpreted, since no child “endowed with life” was deemed to exist in early pregnancy – implying that the cited uses of the word “child” in fact concerned later term embryos. A barely literate clerk would have (and some clerk must have!) identified the contradiction in reasoning. Yet, despite such obvious flaws, the bias Alito carried was too strong to allow him to step back and review his reasoning.
In sum, there are no credible source materials, and no way to assure, “even with the utmost self-discipline,” an unbiased selection and analysis of the putative source materials. Ergo, originalism used as a primary tool of interpretation is bogus (booow-guus! as might be stated by Click and Clack).
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