This constitutional theory is now a threat to modern life.
By Michael Waldman, J.D.
President
Brennan Center for Justice
Last week’s Supreme Court rulings on abortion and guns shook the country. Both rely on a radical approach to how to read the Constitution: making major social policy by purporting to use “originalism.” Together they show how flawed that can be. Liberals must find their voice and put forward a better way to explain the Constitution and how it works — or we can expect more weeks like this one every June as we wait for oracles in robes to consult the vapors of history and tell us our fates.
The notion that the Constitution should be read as frozen in time is a relatively new invention. Certainly it is not what the founding generation had in mind. As Chief Justice John Marshall wrote, “We must never forget that it is a constitution we are expounding.” A great charter would enable a growing nation to meet new challenges. Dred Scott was the first major originalist ruling, claiming to find its defense of slavery and its assertion that even free Black people could not be citizens in the original intent of the founders. It was such a notorious disaster that the approach was shelved for a century.
The insistence that “original intent” or “original public meaning” is the only legitimate way to read the Constitution came as part of the conservative reaction to expanding rights in the 1960s and 1970s. Supposedly it would take the politics out of judging. It was a wildly controversial idea first proposed in a big way in a speech by Attorney General Edwin Meese III and then defended by Robert Bork in his doomed nomination for the Supreme Court.
Soon it became a comfortable talking point. It resonated with conservative religious practice — a form of constitutional fundamentalism and literalism. It coincided with “Founders Chic,” all the thick biographies of the founding generation. By the time of her confirmation hearing, Elena Kagan would quip, “We are all originalists now.” At times the approach has helped forge a majority for unexpected rulings on criminal justice.
But the Supreme Court rarely pretended it could just take a time machine to ask the guys in powdered wigs what to do. Justice Antonin Scalia’s big ruling in 2008, D.C. v. Heller, purported to rely on history when he found that it recognized an individual right to own a gun to protect “hearth and home.” But it also made clear the vast majority of gun rules to protect public safety could stand.
Scalia was asked what the difference was between him and Justice Clarence Thomas. “I am an originalist. I am not a nut.”
Well, it was Thomas who wrote the majority opinion in last Thursday’s big Second Amendment case. In New York State Rifle & Pistol Association v. Bruen, the Court struck down New York’s 1911 law largely prohibiting people from carrying a concealed weapon in the Big Apple. Thomas’s opinion mentions “public safety” as a goal precisely once in 63 pages (and only to criticize an earlier ruling that used that rationale). Regulation of firearms has ebbed and flowed. During periods of high crime, we tightened gun laws, and with good reason: times change. An honest reading of history would acknowledge this fact. Thomas makes no effort to understand the reason why the law was enacted over a century ago, how it has worked, or the fact that New York and other states with a similar law have lower rates of gun crime than elsewhere.
Instead, Thomas ransacked the historical record, classic “law office history” that seeks supporting evidence. Justice Stephen Breyer’s dissent mocked the opinion: “Some of the laws New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently analogous to the licensing regime at issue here.” Dr. Seuss could not have said it better.
The most dangerous part of the ruling was the Court’s new doctrine that all gun regulation now must be assessed only by looking at “history and tradition.” This approach will now be parsed and followed by judges all across the country, forced to play as amateur historians, looking for analogies. Where do modern weapons, modern needs, modern “sensitive places” like the subway fit in? We don’t know.
Thomas’s opinion in Bruen shows that for all its pretense, originalism in the hands of this Court was fake. Justice Samuel Alito’s use of originalism in Dobbs v. Jackson Women’s Health Organization shows it to be dangerous and reactionary.
Dobbs distorts history too. Abortion was legal at the time of the founding (up until quickening), but faced bans later in the 19th century. But here was the heart of Alito’s opinion: “The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.” What that means, in practical terms, is the Court looked to a time when women could not vote or sit on juries, when Black people were slaves, when sexual orientation was a shameful secret. The opinion purported to just turn the issue of abortion rights over to the people in the states, but in terms of the Constitution, it would repeal the 20th century.
It fell to Thomas to spell out the consequences of this vision: targeting marriage equality, LGBTQ rights, and the right to contraception, among other things. At least 10 of his former clerks are now federal judges. We can expect some to pick up on his hint and take up the cause in months to come.
Yes, those appalled by these rulings should make the point that they mangle history. We will have no choice but to point to other better readings of the past.
But it is well past time that liberals on and off the courts spell out why this approach — this sudden conversion to originalism in the two biggest cases of the year — is an absurd way to run a country or interpret a constitution. It cloaks conservative policy choices in pretentious garb. But it is hardly a coincidence that these two rulings would allow red states to ban abortions while barring blue states from regulating guns.
Justice William J. Brennan Jr. rebuked the first arguments for originalism in the 1980s. “We current Justices read the Constitution in the only way that we can: as twentieth-century Americans,” he said then. “We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be: What do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
Today we might find Brennan’s argument too vague, too much a cloak for liberal justices making liberal rulings. But now we have conservative justices pretending to use history to advance their own policy goals. Liberals and progressives will need to offer robust and persuasive public arguments. That’s important for the courts. It’s even more important for the court of public opinion.
Brennan’s basic point was enduring and right: the only way a great nation can govern itself is to recognize that the Constitution respects and advances the great goals of freedom, dignity, and democracy in a changing country in changing times. Right now, as used by this Court, originalism just provides cover for a right-wing political agenda. And to paraphrase Antonin Scalia of all people, it’s nuts.
Originally published by the Brennan Center for Justice, 06.28.2022, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.
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