by Ray Raphael
I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people’s elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.19
In the last quarter of the twentieth century, originalism coalesced into a self-conscious school of constitutional interpretation, boasting a popular name and a frequently articulated rationale. The Supreme Court had been tilting leftward since the 1950s, supporting the rights of alleged criminals, enforcing strict separation of church and state, challenging the death penalty, striking down antiabortion laws, favoring federal authority over the states, and so on. This rash of decisions amounted to “judicial activism,” conservatives cried, and they saw a way to reverse it: justices should anchor their decisions on the views of the founders, not base them on personal preferences or societal values. “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else,” wrote Robert Bork, a former United States solicitor general.20
In 1985 President Reagan’s attorney general, Edwin Meese III, presented the basic case for originalism in a speech to the American Bar Association at its annual convention: “Those who framed the Constitution chose their words carefully; they debated at great length the minutest points. The language they chose meant something. It is incumbent upon the Court to determine what that meaning was.” In professional journals he argued that judges would free the courts of bias by focusing on the original language of the founders. “A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.” This, he said, would “prevent passing fads and passions in the body politic from overriding fundamental values and principles.”21
Since Antonin Scalia and Clarence Thomas joined the Supreme Court in 1986 and 1991, respectively, originalism has been a formidable presence in American constitutional jurisprudence. Justice Thomas wants to ground all decisions on originalist methodology; precedent alone will not suffice. While concurring with Chief Justice William H. Rehnquist’s carefully reasoned opinion for the Court in United States v. Lopez, Thomas did not approve of his method, which was based only on previous Court decisions. “Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause,” he wrote. “We ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.” In case after case, whether concurring or dissenting, Thomas has offered his own originalist arguments.22
Justice Thomas does not always distinguish which variant of originalism he embraces. “In United States v. Lopez (1991), he based his argument on the original meaning of the term “commerce,” citing dictionaries published in 1773, 1789, and 1796. In U.S. Term Limits, Inc. v. Thornton (1995) and United States v. International Business Machines Corp. (1996), he used records from the Federal Convention to surmise the original intent of the framers. In Missouri v. Jenkins (1995) and Gonzales v. Raich (2005), he analyzed proceedings of the state ratifying conventions to infer how the ratifiers understood provisions in the Constitution. “This Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it,” he wrote in McIntyre v. Ohio Elections Commission (1995), lumping three criteria into one.23
Whichever version of originalism he uses in a given case, Justice Thomas’s overriding concern is to fix the Constitution at the founding moment. By highlighting “the practices and beliefs held by the Founders,” he contends, he can clarify any and all issues. His concurring opinion for McIntyre reasoned that because anonymous political writings were common in the founding era, we have no business regulating them now. In Baze v. Rees (2008), to defend the death penalty, he offered a catalogue of horrors from the eighteenth century: “burning at the stake,” “‘gibbeting,’ or hanging the condemned in an iron cage so that his body would decompose in public view,” “embowelling alive, beheading, and quartering,” and so on. It was these punishments, not ordinary hanging, that the founders prohibited by framing and adopting the Eighth Amendment, he maintained. Dissenting in Brown v. Entertainment Merchants Association (2011), he argued that the founders would not think a ban on the sale of violent video games to children “an abridgment of ‘the freedom of speech.’” Deciding the case required “a complete understanding of the founding generation’s views on children and the parent-child relationship,” and that generation, he concluded, “believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children.”24
Despite his commitment to originalism, Justice Thomas is selective in applying it. He opposes any limits on political advertising, but he does not demonstrate that the founders considered money a form of speech deserving of First Amendment protection. He follows precedent by affording corporations the rights of people, but he has not defended that position by appealing to the founding generation or to the original intent or original meaning of the Fourteenth Amendment, which was passed in the wake of the Civil War to protect former slaves, not corporations.25
The lapses are not accidental. In Citizens United v. Federal Election Commission (2010), a strong originalist argument can be made, but it would not lead to the results Justice Thomas preferred. The solicitor general cited Supreme Court precedents to show that “corporate political speech can be banned in order to prevent corruption or its appearance.” This argument would have appealed to the founders because corporations at that time were not seen as possessing the rights that people enjoyed and government held unquestioned regulatory authority over them.
More critically, they would think that political influence over elected representatives undermined the essence of republican government. Public officials were to make up their own minds, and the notion that a representative, senator, or president might owe his election and therefore his allegiance to a particular group that had financed his campaign would appear to them an invitation to corruption. Article IV, Section 4 of the Constitution demanded republicanism—“The United States shall guarantee to every State in this Union a Republican Form of Government”—and republicanism, in the original meaning of that term, required disinterested leadership. The influence of wealth over government frightened the framers, who themselves were quite well-to-do. At the Federal Convention, Gouverneur Morris, whose father was the Lord of Morrisania (New York’s present-day Bronx), worried that “the rich will strive to establish their dominion and enslave the rest.” Like other framers, Morris feared too much democracy because he thought the people could be too easily misled, particularly by men as wealthy as he was: “The rich will take advantage of their passions and make these the instruments for oppressing them.”26
John Adams also viewed the threat of influence over voters as anathema to republican government. Like Morris, he predicted that democracy might revert to aristocracy because some men would learn to command the votes of others. “By an aristocrat,” he wrote, “I mean any man who can command or influence two votes, one besides his own” (his emphases). Aristocracy, rule by the elite few, did not have to be marked by “artificial titles, tinsel decorations of stars, garters, ribbons, golden eagles and golden fleeces, crosses and roses and lilies, exclusive privileges, hereditary descents, established by kings or by positive laws of society.” Instead, his “aristocrat” might command or influ
ence votes “by his virtues, his talents, his reserve, his face, figure, eloquence, grace, air, attitude, movements, wealth, birth, art, address, intrigue, good fellowship, drunkenness, debauchery, fraud, perjury, violence, treachery, pyrrhonism [skepticism], deism, or atheism; for by every one of these instruments have votes been obtained and will be obtained.”27
Today, these various means of influence, more often devious than virtuous, are embodied in the political vernacular of campaign advertisements. Morris and Adams and a host of other founders would be horrified at the transformative reach of concentrated wealth accelerated by the power of mass media. Yet in Citizens United, Justice Thomas opted to ignore their salient concerns.
Nor did Justice Thomas offer an originalist argument in Bush v. Gore (2000). According to both the original intent and the original meaning of the Constitution, a dispute over hanging chads was in the hands of the state administering the election, so any adjudication should be performed by Florida’s courts. The legislature could have chosen presidential electors on its own if it preferred to do so (see chapters 3, 4, and 6), and had the system operated as the framers intended, each elector would not be obligated to vote for any particular candidate, whether Bush or Gore. In claiming that citizens had a “fundamental” right to vote for a presidential candidate, the Court’s majority overlooked an originalist fact: the framers had specifically and overwhelmingly rejected popular election of the president three times at the Federal Convention, on June 1, July 17, and August 24. Sometimes, if the legislature allowed them to do so, citizens could vote for electors, but since they were never allowed to vote directly for the president, voting for Bush or Gore could hardly be declared a “fundamental right.” George W. Bush, a presidential candidate, had no legal grievance.28
Perhaps Justice Thomas showed good sense in not presenting this straightforward but archaic argument in Bush v. Gore, for the original understanding of presidential selection quickly broke down. Ever since 1800, electors have not exercised independent judgment, and with the ascension of democracy in the early nineteenth century, state legislatures ceded the choice of electors to the people. But for Justice Thomas, the pure originalist, this would be an insufficient excuse for not treating the case as the founders would have treated it.
“Originalism has the advantage of being legitimate and, I might add, impartial,” Justice Thomas declares, but his discretionary use of originalist arguments—highlighting only those appearing to support a preferred conclusion—undermines that claim. Originalism does not in some mystical way immunize against bias.29
Justice Thomas trusts his own assessment of the founders’ intent or meaning more than he trusts precedent. In McIntyre, he professed that he was “loath to overturn a century of practice,” but in the same sentence he asserted boldly that “historical evidence from the framing outweighs recent tradition.” In legal terminology, he prefers originalism to stare decisis, or respecting precedent, the standard that was developed in Roman times and has always anchored English and American jurisprudence. To an admiring audience at Stetson University College of Law in Gulfport, Florida, which presented him with an honorary doctorate, Justice Thomas said, “If it’s wrong, it’s wrong, and we are obligated to revisit it.”30
Justice Antonin Scalia, the Supreme Court’s other professed originalist, assumes a somewhat milder stance. “If a constitutional line of authority is wrong, he [Thomas] would say let’s get it right,” Justice Scalia said informally in 2004. “I wouldn’t do that. He does not believe in stare decisis period.”31
Justice Scalia’s theoretical defense of originalism is more discriminating, explicitly disavowing original intent in favor of original meaning: “I will consult the writings of some men who happened to be delegates to the Constitutional Convention—Hamilton’s and Madison’s writings in The Federalist, for example. I do so, however, not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood.”32
Original intent, which Justice Scalia rejects, at least focuses on discrete and clearly identifiable sources, whereas original meaning opens the floodgates. Sources to examine include the papers of Washington, Adams, Jefferson, Madison, Franklin, and Hamilton (the most updated collections currently total 216 volumes, but they do not yet include a combined 108 years of their lives); smaller collections for many other founders; records of numerous local committees before and during the Revolutionary War; journals of the Continental and Confederation Congresses, the first few federal congresses under the Constitution, and state legislatures, as well as published letters of delegates to those bodies; twenty-two volumes of the Documentary History of the Ratification of the Constitution (with additional material not yet published); countless unpublished letters housed in local archives; extant newspapers for the latter third of the eighteenth century, with their flamboyant and often partisan writings; and of course dictionaries. Reasonably large samples of these materials must be explored if we wish to know precisely what “general welfare,” “freedom of speech,” “well regulated Militia,” “excessive bail,” “unreasonable searches and seizures,” “necessary and proper,” “regulate Commerce,” “Republican Form of Government,” or other such terms meant to the people of that time, or, in Justice Scalia’s words, “the original meaning of the text.” For a controversial passage, we need to discern how the disputed words or phrases are used in various contexts and then compare those contexts to the context within the Constitution. Rarely will we find a direct match, so even at its best, the results of our inquiry will be tentative.33
By substituting the generic “intelligent and informed people of the time” for the identifiable “framers” or “ratifiers,” Justice Scalia removes us from actual historical events with real protagonists, and this provides great license for conjecture and personal discretion. Diffuse materials are more readily mined for evidence in support of preconceived conclusions. The pursuit of original meaning does not always involve passive discovery, where the answer simply awaits us in the texts; more often, it is a determined act of construction, building an argument on behalf of a preferred interpretation. The greater the number and variety of sources to choose from, the easier it is to find material to fashion an argument.34
Unwittingly, Justice Scalia illustrates the hazards of selective application. In Printz v. United States (1997), he argued against Justice David Souter’s reference to Alexander Hamilton as an appropriate authority on the meaning of the Constitution. Hamilton held “the most expansive view of federal authority ever expressed,” he maintained. “To choose Hamilton’s view, as Justice Souter would, is to turn a blind eye to the fact that it was Madison’s—not Hamilton’s—that prevailed, not only at the Constitutional Convention and in popular sentiment, but in the subsequent struggle to fix the meaning of the Constitution by early congressional practice.” From his distant vantage point, Justice Scalia makes a sweeping assessment of “popular sentiment,” ignores Madison’s extreme nationalism at the Constitutional Convention, and turns the history of the 1790s upside down. Madison did not “prevail” over Hamilton. He lost to Hamilton in constitutional disputes over a national bank in 1791, over Washington’s neutrality proclamation in 1793, and over the ratification of Jay’s Treaty in 1796 (see chapters 5 and 6). Even if we look beyond such dubious historical assessments, the nature of Justice Scalia’s pronouncement is problematic. If some framers are right but others are wrong, there can be no single, correct doctrine of original intent or original meaning. It comes down to a game, with one justice selecting a winner whom another deems a loser.35
Like Attorney General Meese and Justice Thomas, Justice Scalia presents originalism as an antidote to judicial bias. “The main danger in judicial interpretation,” he says, is that “judges will mistake their own predilections for the law.” Originalism promises to combat that danger by establish
ing “a historical criterion that is conceptually quite separate from the preferences of the judge himself.” Anchored by the founders, Justice Scalia insists, the Constitution cannot be swept this way or that by changing currents.36
In reality, originalism allows justices to overturn precedents with less restraint than they would otherwise display, altering the Court’s direction at a moment’s notice by a simple appeal to the founders. The doctrine does not enforce tradition, which in legal terms means abiding by precedent, but instead facilitates change. Originalism’s capacity to catalyze change in constitutional law makes the Court, which has the final say in constitutional interpretation, more volatile and less stable—exactly the reverse of what originalism’s advocates have promised.
Politically, originalism has provided both a justification and a strategy for reversing the trend toward centralization and regulation that started with the Progressives in the early twentieth century, gained full force with the New Deal, and culminated in the Great Society, enforced social equality, and environmental regulation in the 1960s and 1970s. The vast array of legal precedents that buttressed changes in American society over those years can be annulled in an instant by a comparatively simple change in jurisprudence. If the founders would not have liked one of those decisions, it must go, originalists say. In this manner, the liberalization of American society can be reversed through the judicial system, conveniently bypassing the cumbersome legislative process. To some, this reversal is an extreme application of “judicial activism”—a pejorative term high on the litany of conservative complaints—but its proponents view it differently. Using originalism to overturn unwarranted precedents simply rights previous wrongs, they claim.37
