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Lies, Damned Lies, and Originalism: Five Glaring Flaws in Originalism [1]
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Date: 2025-03-28
Conservative judges promote “Originalism” as the basis for interpreting the Constitution. They say that they seek the original intent or original meaning of the words of the Constitution, or what rights were “deeply rooted” in our “history and tradition.” This concept implies that punishments accepted in the 1790s cannot violate the Constitution for being cruel and unusual, that our standard of decency cannot evolve. These judges say that the method is objective,unbiased by ideology. However, when you have diverse sources to pick and choose from, no such analysis is objective.
Courts are easily seduced into abusing evidence that they can select, as exemplified when one appeals court cited dictionaries as powerful objective evidence for interpreting patents. The lie was put to this assertion when a case was dissected at a large legal conference to show the court circularly linking oddly selected definitions to fabricate a meaning, with the reasoning so Rube Goldberg that animated laughter erupted. Eight months later the entire court dis-avowed focusing on dictionary definitions, maybe with laughter ringing its ears. The contortions and biases of originalism deserve the same fate.
I do not seek or have the knowledge to identify all the flaws of originalism. But, starting in the next paragraph I identify five flaws that are glaring and obvious. I start with a highly abridged recitation of these flaws, and thereafter expand on them.
The first highlighted flaw is that judges pick and choose their historical citations, and even then can twist their interpretation. Second, there is no person or body that can personify or describe the original intent of a complex collaborative process. Third, such historical writings as exist to sample "intent" or"original meaning" are comparable to 250 pixels taken from a 2,500,000 pixel photograph (e.g., 1 part sampled in 10,000). Fourth, the cited ancient writings or statutes cannot personify a higher concept of liberty any more than actions on a given day are bound to reflect one's prior attestation of fealty to the ethical teachings of one's faith. Fifth, delving into history is a fact-finding mission, which is not a job for an appellate court.
1. Twisted History: The Supreme Court should be serious about framing a credible argument. However, the Court is now so inured to twisted historical interpretation that six Justices can sanction verbal chicanery. An example? On p. 18 of Dobbs [slip opinion ], Justice Alito writes that an 18th century British legal treatise called aborting a "child" murder, implying that aborting any fetus was murder. But on p. 21 he admits that under then British law the child was "endowed with life"upon quickening (16 to 20 weeks into pregnancy). Thus, an early fetus was not the "child" of the cited treatise. The p. 18assertion looks like a obvious lie, and certainly not a credible argument. [The sham nature of Alito's historical musings is made more clear here and here .]
2. Who/What Personifies Intent: The "intent" of the complex, multi-party process that achieved the Constitution cannot be embodied in a curated selection of ancient writings. This point is all too obvious, but elaboration by exact analogy can be found in Justice Scalia's criticisms of interpreting statutes based on "legislative intent." [E.g., A Matter of Interpretation , Scalia, Princeton Univ. Press, 1997]
Moreover,historical documents used to support originalist arguments come with an agenda. Consider corporation A accepting a contract because it maintained meaning I, while corporation B saw meaning II, with heated arguments ensuing. Each intended to campaign for its meaning after there was reliance on the endeavor. In originalism, the writings you pick and choose come with such an agenda of ancient Party A (or B or C…).
3. Blur of History: We do not have the data or analytical bandwidth to uncover the"understandings" of circa 1787, as is overwhelmingly obvious: we did not understand events in Afghanistan while they were happening. That a committee of lawyers can understand what was happening in 18thcentury is a farce. "[W]hat our forefathers did envision... must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." [Justice Jackson,concurring in the Steel Seizure Case ]
4. Rights Under the Constitution Are a Higher Ideal: Just this January the Tennessee legislature voted to make it a felony for elected officials to vote for a "sanctuary" policy, a blatant violation of the First Amendment. Clearly, legislative or other actions of ancient days do not evidence the meaning of the Constitution.
5. Appellate Courts Do Not Find Facts: In Dobbs, Justice Alito found the facts of ancient abortion policy. But, trial courts find facts, and appellate courts review those findings, and can dispute the findings of fact only when clear error is apparent. Trial courts hear witnesses, hear them respond to challenge by motivated advocates, and thus have a basis to assess credibility. In contrast, when Appellate courts cite as factual books written by ideologues, this is not fact-finding in the tradition of American law.
Finally, we can go back to Dobbs and a flaw tangentially related to the above flaws, where Justice Alito clumsily attempts a magician's misdirection. The scent of the inconvenient fact that aborting an early fetus was legal during the founding era can be sniffed out in how hard Alito doth protest it with weak, episodic citations. To further cover up this scent, Alito turns to 19thcentury legislation when the 14thamendment expanded the fifth amendment's liberty clause to reach actions by the States. However, actions in the 1860s cannot take away liberty enacted 70+ years before, so these 19thcentury actions are irrelevant. If the dishonesty of originalism were not obvious enough in the numbered paragraphs above,this added dishonesty in Dobbs should bring it home.
Maybe I have not achieved my target of inducing derisive laughter, but I should have induced a painful groan, and enough embarrassment to undermine the credibility of this supposed objective analysis. We should reach a time where, when an originalist argument is raised, the broad response will be: “Enough with that duplicitous nonsense!”
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