What is your opinion of Originalism?

[°Leprechaun]

To me it seems a little too narrow, similar to religious literalism.

I don't think that the SCOTUS should over reach, getting involved in things that shouldn't be their business.

I do think that the problem with originalism is close to the problem religious people have with literalism. It is an obvious comparison to me because originalists (ACB for example) can also be very religious.

The Constitution does allow for rulings beyond it's "letter". For example, how would you interpret the phrase "promoting the general welfare"?

[Brother Jonathan]

To me it seems a little too narrow, similar to religious literalism.

I don't think that the SCOTUS should over reach, getting involved in things that shouldn't be their business.

I do think that the problem with originalism is close to the problem religious people have with literalism. It is an obvious comparison to me because originalists (ACB for example) can also be very religious.

The Constitution does allow for rulings beyond it's "letter". For example, how would you interpret the phrase "promoting the general welfare"?

I think the best case for originalism rests in that last question and the originalist response to it; namely, you interpret the provisions of the Constitution as it would have been publicly understood at the time of its adoption. Promoting the general welfare appears in the preamble, so that's a slightly unique case but, in general, the logic behind originalism is that broad terms in the Constitution need to have some limiting principles as it relates to their interpretations. It can't be left to judges to update the text as they see fit, at that point you've lost the inherent value and nature of the Consitution's 'written-ness' and risk allowing individual judges too much latitude. Originalism is not an inherently dogmatic jurisprudence, I would generally say it is actually quite pragmatic in this sense, simply providing the best possible means of constraining interpretation to a certain narrower band of outcomes while acknowledging that differences will persist. That's my basic take on it, anyway.

[(no subject)]

Originalism was coined by that pervert Scalia so he could use the Founders to cloak his bigotry and radical conservatism. Historians have debunked it.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Originalism was coined by that pervert Scalia so he could use the Founders to cloak his bigotry and radical conservatism. Historians have debunked it.

How exactly would historians debunk a legal theory?

To answer the thread question, I don't think especially highly of originalism because it often strays from what's actually in a legal text just as markedly as do "liberal" legal theories. For example, we have a poster here who believes that the equal protection clause of the Fourteenth Amendment deals solely with racial discrimination and can't be applied to discrimination on any other grounds, a ludicrous interpretation of what the amendment actually says that is supported solely by someone's opinion of what the people who wrote it "must have" intended it to mean.

[(no subject)]

Originalism is bullplop because the Constitution is NOT a monument to the "genius of the Founders". The idiotic Founders made stupid assumptions such as that Europe would remain full of absolute monarchies eager to subvert the USA and they treated enslaved blacks as worth three-fifths of a white person.

So Scalia was a liar as well as a pervert.

[Brother Jonathan]

Originalism is bullplop because the Constitution is NOT a monument to the "genius of the Founders". The idiotic Founders made stupid assumptions such as that Europe would remain full of absolute monarchies eager to subvert the USA and they treated enslaved blacks as worth three-fifths of a white person.

I would agree that the Constitution is not a monument to the "genius of the Founders," as would most mainstream Orginialists; it's a legal document that sought to provide the basis of a workable republican government. To that end, most originalists don't actually care what the framers of the Constitution thought, rather they are concerned with the original public meaning of the document. As with legislative intent as a tool of modern statutory interpretation, trying to understand what the framers meant as it relates to any given Constitutional provision is a fruitless task and subjects you to the nonsense about hidden meanings and related absurdities.

So, if the document is not some document of genius (and it is not, as discussed above) then you can't say that it can be used in its present form to provide certain rights that can not be reasonable ascertained in the original public meaning of the document and its amendments. If anything, it is the critics of originalism who hold up the Constitution as some work of genius, so genius that it simply serves as a vehicle for the transcendent values of the framers. Originalist recognizes that the framers were white, property-owning men of another time and thus that their words cannot be used to justify everything under the sun as having Constitutional protection. This is also true of later amendments—which contrary to much public ignorance originalists do not reject—which were also written and ratified by men (and eventually women) in different times and circumstances. That specific amendments and provisions in the Constitution are responses to particular problems and circumstances is at the very heart of Originalism. I recognize that many (if not most) adherents of the "living" view of the Constitution would take issue with my characterization of their views here, but I think it serves to show that ultimately it's nonsense to assert that Originalism is bound up in a view of the Constitution as a flawless charter when it is, in fact, a pragmatic realization of the exact opposite conclusion—that it is a crafted by men for the purposes of forming a government in a particular time and place and that we must read it in that context. In some form or another, I think that assertion lies at the heart of most legal scholarship. While some see this as a reason for judges to update the text as they will, Originalists simply see it as a logical limiting principle to prevent judges from imposing their political will through the legal system.

It also didn't start with Scalia. Here's an Article Robert Bork wrote outlining some key arguments in favor of what we would now call Originalism in 1971:
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2720&context=ilj

[Kingpoleon]

Its uneasy alliance with natural law should make most people uneasy. Natural law is the highest law of the land, capable of superseding the Constitution, and besides Marxists and Objectivists and most fascists, it has generated an unusual consensus.

It has logical fallacies, but most forms of jurisprudence do. I think an objection based upon natural law is among its best objections - the only Justice who has even tried to resolve the conflict between the high view of the Constitution and the high view of the natural law is Gorsuch. Thomas has done a bit, but his balancing act between them weighs pretty heavily one way.

[MarkD]

So far this thread has had two posts by Brother Jonathan with which I completely agree, one post by President Elect Biden!! (Kingpoleon) with which I completely disagree, two posts by Jolly Slugg that I want to flush down a toilet, and one post by Marxpilled Red Tory (Nathan) that refers indirectly to me, because I am the only poster (that I have ever seen on Atlas) that has ever said that the Equal Protection Clause of the Fourteenth Amendment "deals solely with racial discrimination and can't be applied to discrimination on other grounds." I disagree with Nathan too -- not on how he described my interpretation of the Equal Protection Clause or in his rhetorical question directed at Jolly Slugg -- but in what he said about not thinking highly of the philosophy of Originalism.

I believe the philosophy of Originalism is the only morally correct philosophy of interpreting the Constitution that one can have. Just as Brother Jonathan provided a link to an article by Judge Robert Bork (who was one of the best advocates for the philosophy that America has had in a long time), I want to include here a slightly paraphrased quote from Bork's famous book "The Tempting of America."

There exists a wearied cynicism among some lawyers and judges that frequently finds expression in the quotation of words attributed to Chief Justice Charles Evans Hughes: "The Constitution is what the judges say it is." Hughes was hardly the first to make the point. "[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them," said Bishop Hoadly in 1717. These two statements are sometimes taken to ratify cynicism. They should not be. Nobody familiar with Hughes's career would suppose he meant that power is all. It is essential to bear in mind the distinction between the reality of judicial power and the legitimacy or morality of the use of that power.
It is a truism, but it is not anything more than a truism that, for practical purposes, at any given moment the Constitution is what the Justices say it is. Right or wrong, the statute you petitioned your legislature to enact has suddenly become void just because the Justices say so. But behind that reality lies another fact just as real, and one with normative meaning: there is a historical Constitution that was understood by those who enacted it to have a meaning of its own. That intended meaning has an existence independent of anything judges may say. It is that meaning that the judges ought to utter. If law is more than naked power, it is that meaning the Justices had a moral duty to pronounce. Hoadly and Hughes, far from reconciling us to cynicism, emphasize the heavy responsibility judges bear. Power alone is not sufficient to produce legitimate authority. (Page 176 of "The Tempting of America.")

[Donerail]

Originalism is a fascinating exercise for historians and linguists — what would such-and-such a phrase have meant in the historical context of 1789? — but as an exercise for lawyers it primarily functions to give some intellectual credence to the longstanding effort to roll back the substantive and procedural rights secured during the New Deal and the postwar liberal era. We should at the very least try to be honest about its function while discussing its academic merits.

[Kingpoleon]

The Supreme Court must enforce justice under the natural law. A refusal to do so will mean that rights are only granted by the government, rather than the rightful property of the citizenry. Originalism places the Constitution - explicitly written in the context of people who believed in the natural law as highest - beyond what The Author intended.

[(no subject)]

Rehnquist and Bork were both radical conservatives and opposed the rights of minorities. Rehnquist famously opposed Brown vs Board of Education.
saying "rely on the legislature" is ridiculous in the context of a United States where a radical, anti-democracy party (modern Republicans) have deliberately thrown a spanner into the works.

Anyone who praises Rehnquist, Bork or Scalia should get automatic side-eye.

[Amanda Huggenkiss]

Originalism is a fascinating exercise for historians and linguists — what would such-and-such a phrase have meant in the historical context of 1789?

...which makes it a very questionable legal philosophy as most serious historians would agree that our perception of history, our focus on the causes of historical events, and our interpretation of historical discourses are heavily influenced by our perception of and the events and discourses of our own time. There is no "objective" history. No serious modern historian would argue that there was a way to definitively paint a clear and unambiguous image of any historical issue, especially the public opinion on x and y. If historians can not do that, why should we trust the people in the legal system to that?

Besides that, I have yet to read a convincing argument on why a country should submit itself to the opinion of people who lived 250 years ago.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Rehnquist and Bork were both radical conservatives and opposed the rights of minorities. Rehnquist famously opposed Brown vs Board of Education.
saying "rely on the legislature" is ridiculous in the context of a United States where a radical, anti-democracy party (modern Republicans) have deliberately thrown a spanner into the works.

Anyone who praises Rehnquist, Bork or Scalia should get automatic side-eye.

I hate to carry water for originalism, a philosophy of interpretation for which, again, I don't have much respect, but you can't really refute it based on pejoratives and epithets like this. The main theorists of originalism were definitely motivated by their own (in my opinion very objectionable) political views, but so were the main theorists of other judicial philosophies too.

[SenatorCouzens]

I've always found the arguments against originalism much more compelling than the arguments FOR alternative modes of interpretation. To me, this is when originalists' critics lose steam.

Justice Scalia was fond of using the story of two men running from a bear in the woods. One looks to the other and says, "It's no use, we will never out run the bear." And the other man responds, "I don't need to out run the bear, I only need to out run you."

In other words, you really need to offer up a compelling alternative interpretive theory if you want to critique originalism, in my opinion.

[(no subject)]

Today Jeffersonian democracy has degenerated into a vicious stew of parochialism and racism, but Hamiltonian republicanism is alive and well.

[MarkD]

To answer the thread question, I don't think especially highly of originalism because it often strays from what's actually in a legal text just as markedly as do "liberal" legal theories. For example, we have a poster here who believes that the equal protection clause of the Fourteenth Amendment deals solely with racial discrimination and can't be applied to discrimination on any other grounds, a ludicrous interpretation of what the amendment actually says that is supported solely by someone's opinion of what the people who wrote it "must have" intended it to mean.

"Ludicrous"? My interpretation of the Equal Protection Clause is "ludicrous"?

Less than two months ago, on another thread here, you posted:

Genuine question: if the Equal Protection Clause doesn't mean that legislated prejudice is unconstitutional, what on earth does it mean?

I replied:

There was only one type of discrimination that the proposers and ratifiers of the Fourteenth Amendment thought that they were prohibiting when they were adopting the Equal Protection Clause -- racial discrimination. The Fourteenth Amendment is one of the three amendments called "The Civil War Amendments," which were adopted shortly after the end of the Civil War. The other two "Civil War Amendments" are the Thirteenth and the Fifteenth. The Thirteenth Amendment prohibits slavery and the Fifteenth Amendment prohibits the denial of the right to vote on account of a person's race. In the context of when the 14th was adopted and the amendments that immediately proceeded it and followed it, it is clear that the Equal Protection Clause was intended to prohibit racially discriminatory laws in the states. That was so clear to the SCOTUS itself that, on the first occassion in which the SCOTUS was asked to interpret the 13th and 14th Amendments, the SCOTUS explicitly said,

The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times. ... [T]he freedom of the slave race, the security and firm establishment of that freedom, and the protecion of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. ...
"Nor shall any State deny to any person within its jurisdiction the equal protection of the laws."
In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. ...
We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.
(The Slaughter-House Cases, 83 U.S. 36, (1873).)

In other words, there was no other kind of discrimination that the Equal Protection Clause was known to prohibit.

In 1880, the SCOTUS handled a few cases, at the same time, that challenged state laws that prohibited blacks from serving on juries. The laws were struck down. The SCOTUS, in the case of Strauder v. West Virginia, looked at the Equal Protection Clause of the 14th Amendment and said,

What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and in regard for the colored race, for whose protections the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?

But the Equal Protection Clause did not prohibit all kinds of classifications regarding the selection of jury members. The states were still free to choose other ways to select members of juries.

We do not say that, within the limits from which it is not excluded by the amendment, a State may not prescribe the qualifications of its jurors, and, in so doing, make discriminations. It may confine the selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it.

The Slaughter-House Cases was written by Justice Samuel Miller and Strauder v. West Virginia was written by Justice William Strong. Were Justices Miller and Strong being "ludicrous"?

[(no subject)]

conservatives are being disingenuous and mistaken when they criticize marginalized people for going to the courts for vindication of their human rights.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

The Slaughter-House Cases was written by Justice Samuel Miller and Strauder v. West Virginia was written by Justice William Strong. Were Justices Miller and Strong being "ludicrous"?

The Slaughter-House Cases are pernicious nonsense, yes. I'm less familiar with Strauder, so it's definitely possible its reasoning holds more water, but I'd have to look into it more to know for sure if I'm willing to concede that.

I enjoy a lot of your posts about the Constitution and the history and culture of the federal judiciary, but this is one issue where I just disagree with you and think that your position if adopted would be very dangerous. I don't mean that as a personally commentary on you at all; plenty of great people on this forum have opinions I think are highly objectionable.

[politicallefty]

My primary objection to originalism is that so many believe it is the only way to interpret the Constitution. I can accept originalism as one part of a much larger perspective. I think many different interpretations of the Constitution should be considered as part of a larger whole. Originalism overall is narrow-minded and dogmatic in its overall philosophy. It often either disregards the text itself or adds what is not there.

I would argue that the originalist view of the 14th Amendment is fundamentally flawed. It wants to insert its own viewpoints and limiting principle where there is no valid textual basis. If the framers of the Equal Protection Clause meant it to mean only racial discrimination, they could have easily included it in the text. They did nothing of the sort. It's my view that the Equal Protection Clause hasn't been construed more broadly. Even Obergefell wasn't based on the Equal Protection Clause, but rather the the substantive right to marry.

[MarkD]

I enjoy a lot of your posts about the Constitution and the history and culture of the federal judiciary

Thank you.

My primary objection to originalism is that so many believe it is the only way to interpret the Constitution. I can accept originalism as one part of a much larger perspective. I think many different interpretations of the Constitution should be considered as part of a larger whole. Originalism overall is narrow-minded and dogmatic in its overall philosophy. It often either disregards the text itself or adds what is not there.

I would argue that the originalist view of the 14th Amendment is fundamentally flawed. It wants to insert its own viewpoints and limiting principle where there is no valid textual basis. If the framers of the Equal Protection Clause meant it to mean only racial discrimination, they could have easily included it in the text. They did nothing of the sort. It's my view that the Equal Protection Clause hasn't been construed more broadly. Even Obergefell wasn't based on the Equal Protection Clause, but rather the the substantive right to marry.

I still disagree, but I don't feel like elaborating why by taking up a LOT of space,

[Kingpoleon]

So far this thread has had two posts by Brother Jonathan with which I completely agree, one post by President Elect Biden!! (Kingpoleon) with which I completely disagree, two posts by Jolly Slugg that I want to flush down a toilet, and one post by Marxpilled Red Tory (Nathan) that refers indirectly to me, because I am the only poster (that I have ever seen on Atlas) that has ever said that the Equal Protection Clause of the Fourteenth Amendment "deals solely with racial discrimination and can't be applied to discrimination on other grounds." I disagree with Nathan too -- not on how he described my interpretation of the Equal Protection Clause or in his rhetorical question directed at Jolly Slugg -- but in what he said about not thinking highly of the philosophy of Originalism.

Either it is the duty of the Court to enforce natural rights under natural law, or it is the duty of the Court merely to mediate statutory terms under Constitutional law. The latter gives no protection to the rights of the minority from the opinion of the majority; it allows the violation of natural rights which our Revolution was designed to end once and for all, and goes against the foundation of the nation.

I should note, however, a dissent from the majority in this thread. What Keynes did to economics, Scalia did to the law. We are all textualists now, when neither the Constitution nor the natural law is violated.

I further dissent: Neither the Fourteenth Amendment nor any other should guide what rights are natural. The needless attempt to secularize the Court by removing a Gorsuchian understanding of natural law is flawed, because it rejects the meaning of the founders and centuries of logical and philosophical thinking about natural law and rights.

[LtNOWIS]

I've always found the arguments against originalism much more compelling than the arguments FOR alternative modes of interpretation. To me, this is when originalists' critics lose steam.

Justice Scalia was fond of using the story of two men running from a bear in the woods. One looks to the other and says, "It's no use, we will never out run the bear." And the other man responds, "I don't need to out run the bear, I only need to out run you."

In other words, you really need to offer up a compelling alternative interpretive theory if you want to critique originalism, in my opinion.

I'm far from an expert, but textualism seems better than originalism. You can see that distinction playing out in Bostock v. Clayton County. If you go by the "original intent" of the Civil Rights Act of 1964, the law's creators obviously didn't want to give rights to transgender individuals. They would have barely been aware of the concept. But if you go by the plain meaning of the law, then the law provides that protection. Gorsuch took the textualist approach, while Alito took the originalist approach.

[Kingpoleon]

I'm far from an expert, but textualism seems better than originalism. You can see that distinction playing out in Bostock v. Clayton County. If you go by the "original intent" of the Civil Rights Act of 1964, the law's creators obviously didn't want to give rights to transgender individuals. They would have barely been aware of the concept. But if you go by the plain meaning of the law, then the law provides that protection. Gorsuch took the textualist approach, while Alito took the originalist approach.

I think you’re looking at an outcome you agree with and then assuming that is the best approach.

[LtNOWIS]

I'm far from an expert, but textualism seems better than originalism. You can see that distinction playing out in Bostock v. Clayton County. If you go by the "original intent" of the Civil Rights Act of 1964, the law's creators obviously didn't want to give rights to transgender individuals. They would have barely been aware of the concept. But if you go by the plain meaning of the law, then the law provides that protection. Gorsuch took the textualist approach, while Alito took the originalist approach.

I think you’re looking at an outcome you agree with and then assuming that is the best approach.

I don't really have a stake in the issue, one way or the other. Nor would I blame the court for a bad policy outcome. I would say "well if the American people wanted this issue addressed, they would have Congress pass a law to that effect." Policy outcomes are not the court's responsibility.

I just read both arguments, and thought Gorsuch's points were more logical. The law says what it says, in plain language.

[politicallefty]

I should note, however, a dissent from the majority in this thread. What Keynes did to economics, Scalia did to the law. We are all textualists now, when neither the Constitution nor the natural law is violated.

I further dissent: Neither the Fourteenth Amendment nor any other should guide what rights are natural. The needless attempt to secularize the Court by removing a Gorsuchian understanding of natural law is flawed, because it rejects the meaning of the founders and centuries of logical and philosophical thinking about natural law and rights.

I would agree with you that most everyone that considers legal theory now considers themselves to be textualists. I don't think that's a negative though. We should all be looking at the text itself. However, I think Justice Scalia was fundamentally wrong in his application of the text (although it's quite apparent that he valued originalism over textualism).

I'm not sure what you're getting at in terms of natural rights. There are rights that belong to the people that are not necessarily expatiated by the Constitution itself. That has already been considered through the Ninth Amendment. That is one of the things that most bothers me about originalism. One of the biggest minds of originalism, Robert Bork, referred to the Ninth Amendment as an inkblot. I find that to be offensive to both the rights of the people and textualist thought. It simply seeks to disregard the text of the Constitution itself.

I think one of the biggest issues in terms of the Fourteenth Amendment is marriage equality. I think it is a fundamental issue in terms of the Equal Protection Clause itself. If that is not protected by the Fourteenth Amendment, I'm not sure how separate-but-equal isn't constitutional.