Former SCOTUS Justice Antonin Scalia and sitting Justice Clarence Thomas have called themselves constitutional originalists. New Justice Gorsuch also claims to be one. Constitutional originalism is similar to those Christians that believe in the literal word of the Bible: they both claim to interpret the written words exactly as the writers intended them. In the case of the US Constitution, that means basing law on the values and connotations of the originators back in 1789 — although most, including Scalia, include the amendments. Regardless of your beliefs about the Bible, Constitutional originalism is bad for our country.
First and most obviously, our country is totally different from that time; we live in a completely changed world. How can we possibly know the beliefs, ideals, and social expectations behind the constitution? We can imagine committee meetings and discussions about specific details; we have written records of some of those assemblies. However, we cannot really understand the ideas behind those words or the concepts and arguments left out of the conference records.
For instance, we all know what “google” means, but no one living in 1791 would have an idea about the definition let alone the significance of being able to google information. Reverse that concept and think about words that they used that we do not. Now expand that to include concepts, attitudes, and social expectations. We can read about them, but can we truly understand? More famous people than me have written entire books on the fallacies that arise from believing we understand our ancestors and their societies.[1]
In any case, as much as we think we comprehend people from centuries ago, it is unrealistic to believe we do. Supreme Court Justice Brennan agrees. “It is arrogant,” Brennan said, “to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions.”[2]
As an originalist, Justice Scalia debated the concept of flogging, that is, whether or not it was cruel and unusual punishment. His views shifted from one year to another. Flogging was acceptable in 1789, but it certainly is not considered civilized now. Obviously, since Scalia could not reconcile flogging as a blameless contemporary punishment, he was not an absolute originalist. However, during his time on SCOTUS, he set in motion the idea that originalism was acceptable as a basis of legal interpretation or a reason for rejecting modifications.
Although Scalia was flexible in his originalism, Clarence Thomas declares himself to be an absolute originalist. It seems incongruous that he accepts originalism, and that he bases his rulings on it. In fact, I would love to hear Justice Thomas explain why he defends constitutional originalism. I’ve searched the internet without finding his justification. After all, as an African-American, it is likely that he would not have had citizen rights in 1789. Not until 1865, would the Thirteenth Amendment outlaw slavery. Does he acknowledge that the writers of the Constitution were flawed since they did not prohibit slavery? What about women’s right to vote? That law, the Nineteenth Amendment, was passed in 1920. Obviously, our society has decided that the goal of equality among all people — established as a truth by the Declaration of Independence — is a positive objective.
Third, regardless of its increased status on SCOTUS, constitutional originalism is damaging and dangerous to our country. Media as diverse as The Daily News, The Washington Post, and The Hill (“published for and about US Congress”) have discussed the problems with constitutional originalism, and they have also noted, in particular, the issues with Gorsuch’s version of it. Many of those arguments focus the need to be able to change the laws to fix injustices in modern society and to handle contemporary situations (such as technology and privacy).
Rather than recounting all of that, let’s look at some of the transformations in our society since the 1700s. Men of color are no longer legally considered a portion of a man with white skin. People who do not own property have the right to vote, and so do women. Employment is based on minimum wage rates, 8-hour workday, and 5-day work week. Employees have the right to safe working conditions, and their labor entitles people to Unemployment Insurance, Social Security, Medicare, and Worker’s Compensation — all through employee and employer contributions. None of that existed when the constitution was written. Women can buy houses and cars without a male co-signer. The government no longer can jail an individual for marrying a certain person. I’ll stop now even though there are many more positive changes. How can originalism ignore those changes? Certainly, as a country, we recognize that they were good ones. As I said, I’d enjoy hearing Thomas’ reasons for supporting originalism.
Let’s consider the most important idea: the reason we have a constitution. The US Constitution gives us our basic rights — those freedoms that politicians like to mention in speeches and the military claims to protect. The Hill published: “there is a big difference between the Constitution and statutes: while statutes are designed to represent the majority’s will, the Constitution — especially the Bill of Rights — is largely designed to protect individual rights against the majority.”[3]
There it is: US Constitution was written to protect individuals, all individuals, regardless of faith or lack of faith, and despite skin color or ancestry — and someday we look forward to that protection extending to everyone regardless of gender too. In the last few centuries, our society has evolved. Certainly our country is a different one than it was in 1776 or 1789. The founders of our country knew that people (and society) would change, and they accepted that idea. Article V of the US Constitution explained the process for proposing and passing amendments to the document.
Consider what Benjamin Franklin said: “I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.”[4]
The constitution delineates the proper behaviors of both the government and its employees. It sets out the interactions of the three divisions as equal powers in the federal government, and it explains how those divisions should interact with individuals, the states, and other countries. Most importantly, the Constitution provides many important rights; rights we should not be quick to give up. However, constitutional interpretation is fluid: it shifts as our culture matures and develops. Whether you call those interpretations “originalism” or something else, the rulings made by SCOTUS affect each of us.
It is time to read the US Constitution again and remember the protections it offers.
—- footnotes —-
[1]. I refer you to The Symbolism of Evil by Paul Ricoeur.
[2]. Stephen F. Rohde. “The myth that is Neil Gorsuch’s ‘originalism’ (To the Editor)” posted 3/21/17 Los Angeles Times online at http://www.latimes.com/opinion/readersreact/la-ol-le-originalism-gorsuch-20170321-story.html (5/30/2017).
[3] Ken Levy, “Judge Gorsuch’s strict ‘originalism’ puts justice itself at stake” posted 04/07/17 The Hill online at http://thehill.com/blogs/pundits-blog/the-judiciary/327808-strict-originalism-puts-justice-itself-at-stake (5/30/2017).
[4] Benjamin Franklin, “Madison Debates: September 17” The Avalon Project (Lillian Goldman Law Library, 2008) online at http://avalon.law.yale.edu/18th_century/debates_917.asp (bold text added for emphasis) (6/1/2017).
Lillith ThreeFeathers 