New Originalism: A Constitutional Scam

New Originalism: A Constitutional Scam

“New Originalism” has grown over the last decade, largely spurred by right-wing scholars, judges, and generous support from conservative funders. Yet its methodology is murky, its practices dubious, and its historical foundations shaky at best.

AMERICANS ARE deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public. Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans. Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.

At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons. Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

ORIGINALIST CONSTITUTIONAL theory developed during the Reagan years as a critique of activist judges. Its theorists argued that a jurisprudence focused on the original intent of the Founders would serve as a means of limiting the discretion of judges. This theory proved controversial from the start and was subjected to a number of withering criticisms. One of the many problems with the theory stemmed from its shaky historical foundations. Simply put, the Founders did not speak with a single voice on most constitutional questions. Thus, traditional originalism collapsed as evidence accumulated that the Founding generation disagreed on most of the major constitutional issues they confronted. If Madison and Hamilton could not agree on how to interpret the Constitution, how could modern judges claim to have found an objective means to discern the true meaning of its text?

“New Originalism” has grown over the last decade, largely spurred by right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics. In contrast to traditional originalism, new originalism emerged at a time when the Supreme Court was dominated by a conservative majority, as it is today. The goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives. (A few liberals have embraced a version of this theory, hoping to use it to revive and expand aspects of the Fourteenth Amendment, but this is a small minority within the originalist movement.) For right-wing scholars and judges, new originalism serves as a type of constitutional camouflage. It allows “conservatives” to create their own living constitution and advance a form of judicial activism, while claiming to be simply engaged in an act of constitutional redemption.

New originalism eschews a focus on original intent and instead concentrates on the public meaning of the Constitution. Yet, if one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.

New originalists are dismissive of history. They argue that original meaning, as they construe it, is simply different from historical meaning. If this claim were true, then historians would have no special expertise when it comes to understanding the original meaning of the Constitution. This view is utter nonsense. Different historical methods can certainly yield different answers to the question of what the Constitution meant. Social historians might give preference to what ordinary Americans thought the Constitution meant, while legal or constitutional historians might lay greater stress on the opinions of legal and judicial elites. It might well be the case that there was no consensus in the Founding era on what a specific provision of the Constitution meant. What is clearly false is the new originalist claim that original meaning is not subject to the rules of verification that apply to all historical works.

New originalists are especially fond of Justice Scalia’s majority opinion in District of Columbia v. Heller, the controversial case that stuck down Washington’s handgun ban. John McGinnis and Michael Rappaport, law professors who are proponents of new originalism, applaud Scalia for applying the Founding era’s original methods to the problem of the Second Amendment. In Heller, Scalia cast aside the preamble of the Second Amendment, which declares that the purpose of the amendment is to protect a well-regulated militia. According to Scalia, the Founders believed that preambles should only be used to clarify an ambiguity in the text. This approach was so odd that Justice Stevens’ dissent chided Scalia for interpreting the latter part of the Second Amendment first, and considering the preamble second—in essence reading the text backward. The sources Scalia cites for this bizarre approach turn out to have no connection to the Founding era at all. Scalia cited two legal treatises written in the nineteenth century and a single early-eighteenth-century English case that had come into disrepute by the time the Second Amendment was written.

The reason for Scalia’s neglect of Founding-era sources is obvious if one actually reads sources from the period, which support Stevens’, not Scalia’s, reading. Take, for example, the views of then–Chief Justice John Jay, one of the coauthors of the Federalist, who opined in a 1790s decision that “a preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.” Jay’s method, the orthodox approach favored by judges and lawyers in the Founding era, flatly contradicts Scalia’s view of preambles. (It also contradicts the new originalist claims about intent.)

John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.) For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes. Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans. Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

Yoo’s theory is idiotic in the eighteenth-century sense of the word: it treats ordinary Americans as if they had no public voice—in other words, as idiots. Ignoring the real voices of eighteenth-century Americans is an important part of new originalism’s methodological obfuscation. Yoo and other new originalists suggest instead that we interpret the Constitution from the point of view of an “informed, objective reader in 1787-1788.” Gary Lawson, another prominent conservative new originalist, calls this fictive reader “a fully informed reader,” while Georgetown’s Randy Barnett, one of the most vocal public intellectuals in the new originalist movement, dubs his fictive reader “a typical rational man on the street.”

Using fictive readers in place of actual historical ones effectively turns constitutional interpretation into an act of historical ventriloquism. The fictive readers imagined by new originalists somehow always seem to read the Constitution in exactly the same way that a modern right-wing law professor would read the document—a strange coincidence indeed! Even more remarkable is the claim made by some new originalists that we should not give any special weight to what people at the time actually said because, unlike new originalists, Madison, Jay, Hamilton, or any other actual person from that period would have had political motives. In their constitutional fantasy world, historical evidence cannot be used to impeach originalist claims because it would involve claims about actual practices by historical actors who were often blinded by their biases. By contrast, new originalists believe they have transcended their own political interests and created a methodology that reveals the objective meaning of the Constitution. Having cast the vast majority of Americans as idiots, and discounted the views of elites for their political biases, one might wonder what is left to the concept of original meaning. The answer is new originalist meaning ultimately has nothing to do with history: it is a modern ideology dressed up in historical clothing.
IN ORDER to determine original constitutional meaning, some new originalists have turned to philosophy. Lawrence Solum, a law professor and popular law blogger, argues that modern ordinary language philosophy provides a means of discerning the objective meaning of the Constitution’s text. Reading Solum’s originalist theory, one might be tempted to conclude that philosophers of language had reached a clear consensus on issues of meaning, but the reality is that philosophers remain deeply divided over these questions. Even if philosophical consensus existed, one would still need to develop some type of historical methodology to apply one’s philosophical theory to the past. Rather than take the time to do the history right, Solum and other new originalists prefer history-lite, endorsing a method favored by Justice Scalia, who advises that we consult old dictionaries to ascertain the original meaning of the Constitution.

One problem with this approach is that the earliest American dictionaries were written after the Constitution and were not produced according to the rules of modern lexicography. More often than not these texts were prescriptive, not descriptive. They were idiosyncratic products of their authors, who often had ideological, political, and linguistic agendas. Thus it is simply anachronistic to argue that one ought to consult historical dictionaries from the Founding era to elucidate a set of fixed linguistic facts that can be used to unravel the meaning of the text of the Constitution.

One wonders if any theory drawn from modern ordinary language philosophy could yield an objective theory of constitutional interpretation given that the Founders were themselves deeply divided over the nature of constitutional interpretation. Indeed, one of the most basic divisions within the Founding generation was between those who believed that the Constitution had to be interpreted according to the rules of ordinary language and those who believed that the Constitution ought to be interpreted according to a formal set of rules gleaned from Anglo-American jurists such as Sir William Blackstone. Even if one decided which version of ordinary language philosophy to use, and one perfected a historical method to implement this approach, the result would not be objectivity; what one would have done is simply taken sides in one of the Founding era’s most basic disputes. Philosophy cannot replace history and cannot erase the fact that any theory of constitutional interpretation begins with a political choice about interpretive method.

THERE IS something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago. Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.

Indeed, in Heller, Justice Scalia used an Anti-Federalist text written by the “Dissent of the Pennsylvania Minority” as one of the keys to unlocking the meaning of the Second Amendment. His methodology makes it easy for him to take a text articulating the beliefs of the dissent of the minority of a single state ratification convention and transform it into a proxy for public meaning. In the wacky world of new originalism, dissent becomes assent, minorities become majorities, and the interpretive method of the Anti-Federalist losers supplants the methods of the Federalist winners. Such creative rewriting of the past makes for interesting alternate histories, but it is not a serious scholarly methodology for understanding the historical meaning of the Constitution. It is a legal scam.

The periodic revival of Anti-Federalist constitutional ideas is in some sense hardwired into the structure of American constitutionalism. While such a process has often been self-conscious, at other times Americans have unknowingly reinvented an essentially Anti-Federalist critique of the Constitution. Given the expansion of federal power in modern America, particularly of executive and judicial authority, a revival of Anti-Federalist criticism seems inevitable. In this sense, new originalism is unremarkable; it is simply the latest in a long line of dissenting movements to revive an Anti-Federalist critique of the Constitution. What is a bit embarrassing is that its authors do not seem to be aware of the Anti-Federalist origins of their theory.

There is one significant difference between new originalism and the original Anti-Federalist focus on public meaning. The Anti-Federalists were motivated by a desire to reduce the power of lawyers and judges. Ultimately their goal was to allow the people to have a larger say in interpreting the Constitution. Public meaning was a form of popular constitutionalism designed to limit federal judicial review, not empower it. As originally understood, this theory was not designed to freeze the meaning of the Constitution at the Founding moment, but actually was closer in spirit to modern theories of a living constitution. The supreme irony of new originalism is that, if one follows the original version of this theory, it leads to something like the modern theory of the living constitution—the antithesis of new originalism.

Justice Scalia may believe we have a dead Constitution, the legal equivalent of a fly in amber. This was not how most Americans in the Founding era would have viewed the matter. Originalists, both old and new, argue that the theory of the living constitution lacks the legitimacy of their own theory. In fact, the historical pedigree of the theory of the living constitution is it least as good as traditional originalism, and far better than that of new originalism. The fact that Americans are deeply divided today over the relative merits of originalism and the rival theory of the living constitution ought to come as no surprise—Americans were divided over the very same issue when the Constitution was first proposed more than two hundred years ago.

Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and a Senior Research Scholar in Residence at Yale Law School.

Image: U.S. Constitutional Convention in 1787 (Junius Brutus Stearns, 1856)