Checkpoint: Originalism Is Regressive Judicial Philosophy
Richard Sharrocks
The Founding Fathers were prescient men. The establishment of a nation over two hundred years in the building requires, if nothing else, prescience. The conception of the Constitution and its accompanying Bill of Rights points to the political will and enterprise to believe that it was possible to establish a nation of the people. The theory of originalism, however, disregards the spirit of the documents and opts for a plain-text interpretation of the Constitution. The National Constitution Center defines the theory as the belief “that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.” Originalists like the late Supreme Court Justice Antonin Scalia and freshman Justice on the bench Amy Coney Barrett argue the irrelevance of the underlying sentiments and social circumstances to the reality imposed by the words themselves.
Textualism
Such interpretations are derived from a school of originalist philosophy called textualism. Scalia drew the distinction between textualism and another school of originalist thought referred to as Constitutional Intent. In a 1996 speech to the Catholic University of America, Justice Scalia was noted as saying “I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” One glaring problem with this mindset is that it calls into question key precedents and decisions considered noncontroversial. If the textualist interpretation of the Constitution was accepted, it would render the Civil and Voting Rights Acts of 1964 and 1965 unconstitutional, as well as the landmark Brown v. Board of Education.
Undermining the Framers
Our nation’s founders were well-educated men- students of history and the rise and fall of ancient empires. They understood that a system of government that cannot adapt itself and thrive with the changing eras was bound to collapse. It was the very reason they included a system of amendments at all. Textualists, however, argue that Constitutional text must be interpreted as it was “promulgated to the people,” implying we can retroactively accept the words of the Framers as infallible. This idea runs contradictory to the Framers’ perception of their own fallibility, therefore confirming the limited scope of their viewpoints. Textualist theoretical irrationality stymies judicial progress, as time and its changes necessitate modern interpretation.
Textualist philosophy claims security in the predictability of the original text, as Scalia claimed the irrelevance of intent in his determination of the wording; the objective text is the focus- however, in reality, this dichotomy is a false one. Legitimacy of government is not based on text or history or precedent, but on the consent of the governed. Strict originalist philosophy disregards this fact and swears itself to a logically fallible interpretation of the Constitution, ignoring the will of the people and the informed consent of those living under its jurisdiction.
Ethics of Consent
At a 2010 lecture at the University of Virginia Law School, Scalia stated that lawyers and justices “are not trained to be moral philosophers,” insinuating that lawyers cannot make determinations on moral issues regarding abortion rights, physician-assisted-suicide, etc. However, this is not indeed the requirement that comes with such rulings. Roe v. Wade is one of the landmark cases on which the future of abortion rights relies. According to a 2020 Gallup poll, 46% of Americans self-identify as “pro-life.” The 46% pro-life constituency, however, promotes an ethical position- one of morality.
The originalist argument for the restriction of certain health services is illogical- operating under the assumption that the availability of services to those who approve of them is injurious to those who do not. One common ethical argument is that abortion of unborn fetuses is indeed injurious to said fetuses. However, the Constitution makes no mention of these services and is not a document outlining the sole liberties granted to the people, but baseline ethical standards that cannot be infringed upon. Until there is concurrence that termination of a fetus morally constitutes the termination of a life, the ethical choice must be left to the people. It is not the place of the court to restrict services based on ethical ideology when a substantial part of the population calls for these services.
According to the CDC’s Abortion Surveillance System, there were over six hundred thousand reported abortions from only forty-nine reporting areas in 2018 alone. Over a half-million people utilized such services, and regardless of polling, the availability of means to the people does not equate to compulsion of use. Individuals self-identifying as pro-life would have no obligation to utilize abortion services available to those who would choose such services. The textualist position that the court cannot uphold Roe v. Wade due to its inability to make moral judgments does indeed make those moral judgments for the people by choosing for those who thus would not have the opportunity to choose for themselves and by undermining their ability to exercise informed consent.
Relativism
The textualist theory of strict adherence to the foundational text alone purports an ethical relativist ideology, an ethical belief in which morality “varies from person to person or from society to society.” It implies that the particular accepted ethical standards of the society- the Constitutional text, in Scalia’s view- is the standard for what should be accomplished. However, history has shown that society is not always such a good ethical standard to abide by. Slavery at a time was considered permissible under the Constitution, and the landmark Brown v. Board of Education would be rendered unconstitutional under textualist philosophy. Clearly, the societal circumstances surrounding court decisions need to be taken into account, as the text alone does not account for such nuance.
Women’s Suffrage
Scalia noted his belief that the Nineteenth Amendment guaranteeing women’s right to vote could not simply be secured under the Equal Protection Clause. Section 1 of this clause states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Scalia believed that in 1920, this clause alone would not have been a sufficient argument to grant women suffrage. The restriction of voting rights, in textualist terms, would not constitute an abridgment of liberty or denial of equal protection. He claimed it is purely the amendment that validates it, however, further inconsistencies arise in the history of the philosophy.
Judicial Tradition
In his 1996 speech, Scalia argued that until recently, textualism was a matter of “constitutional orthodoxy… everyone at least said so.” However, this claim is disputed. Clocks Must Always Be Turned Back, a paper from the American Political Science Review, argues “that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s.” Further, even General Ulysses S. Grant, 18th President of the United States, made the claim in his Personal Memoirs that “it is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies.”
Textualism, as a theory, is one that Scalia even conceded comes with difficulties; "I will stipulate that originalism is not perfect, but in ease of lawyerly application, never mind legitimacy and predictability, it far surpasses the competition.” The problem is that ease of application does not equate to sound philosophy, and such predictability is derived from an unethical interpretation that invalidates its own legitimacy with relativism and an irrational disregard for the will of the people, denying their ability to exercise informed consent. Textualism, and originalism at large, acts as regressive and untenable judicial philosophy which will only act as a thorn in the side of American progression.