Colorado native Neal Gorsuch is the newest justice on the United States Supreme Court. Justice Gorsuch is an “originalist.” Originalism is a doctrine, which in the minds of its disciples, is a cardinal tenet of judicial review. It interprets the Constitution as unchanged from the time of its enactment, unless it is changed by a constitutional amendment.
Originalist doctrine is divided into the “original intent” theory (interpretation of the Constitution as what was meant by the drafters) and the “original meaning” theory, closely related to textualism (interpretation of written constitution or law should only be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be).
Originalism is doctrinal, that is controlling, and not just one criteria of judicial construction. It mandates the Constitution of today be interpreted as it was understood by those who signed the original Constitution in 1787.
President Trump has vowed to appoint more “originalists” to the Supreme and lower courts. What follows are two opinions that endorse and scrutinize this doctrine.
Framers’ government based on timeless universal truth
by William E. Zimsky
Ideally, the United States Supreme Court functions as the neutral arbiter of the meaning of the Constitution, free from political considerations or influence. However, a record low 42 percent of the public approve of how the Court is handling its job. That low approval stems from the widely held perception that the Court has become an uber-legislative body, unanswerable to the public, that unilaterally imposes social change without the consensus that can only be developed through the necessarily messy political process.
Originalism provides a degree of certainty that is independent of political expediency and the latest trends in social engineering. The meaning of a Constitutional provision or amendment is based simply on the original intent of the drafters and/or a determination of the textual meaning based on what reasonable persons living at the time would have understood the ordinary meaning to be.
Although the most well-known advocates of originalism are conservatives, a number of liberal legal scholars embrace originalism. They do so because they believe that the intent and text of the Constitution, and various amendments, support a liberal viewpoint. Thus, originalism does not dictate a conservative outcome.
Critics of originalism suggest that the Constitution is a “living document” that must be interpreted based on current social values because a document drafted 230 years ago by rich white men, some of whom owned slaves, cannot possibly apply to the complexity of modern life and the natural evolution of social values.
This premise fails because the government constructed by the framers is based on the universal truth that every person is endowed by the Creator with certain unalienable rights common to the human condition, and the purpose of government is to protect those rights. This simple truth is timeless.
The critics also ignore the fact that the Constitution is actually a living document because it provides a mechanism to adjust to evolving social values. This amendment mechanism has repeatedly corrected basic flaws in the Constitution. Slavery has been abolished, the right to equal protection under the law has been expanded to apply to all state laws and every citizen 18 years or older can vote.
Unfortunately, the “living document” concept allows justices to interpret the Constitution and amendments to achieve an outcome based upon what they believe social policy should be. Such a regime leads to uncertainty not only with respect to how an issue will be decided in the present, but whether that decision will be upheld a few years later because the next set of justices can reinterpret the issue based on their own political beliefs or their vision of what social policy should be.
By imposing social policy by judicial fiat, without any basis in text or intent, the Court has reached untenable decisions that have undermined public confidence. For example, the Court’s decision in Roe v. Wade, finding that there is a constitutional right to abortion, was based on the substantive due process clause of the 14th Amendment which was adopted in 1868. However, there is no textual basis to support this decision. Moreover, because in 1868 at least 36 laws were in effect limiting abortion, the intent of the 14th Amendment could not have been to ban laws restricting abortions. Nonetheless, the majority held that the “right to privacy” somehow included the right to abortion, thereby removing this important social policy issue from the political arena where it was traditionally decided by consensus.
A future area of concern is the movement parading under the banner of “social progress” to strip First Amendment protection from so-called “hate” speech. Such a restriction is contrary to the framers’ intent and would curtail speech since it would be difficult to know in advance what speech is protected. More importantly, it would essentially sacrifice unpopular speech at the altar of “social progress,” thus standing the concept of free speech on its head, a nightmare scenario that is now playing out on college campuses across the country.
Originalism is an unrealistic view of today’s world
by Michael McLachlan
Originalism is a derivative of religious fundamentalism, a doctrine conceived by scholars who believe their Bible, Koran or Torah was written by male scribes who spoke directly with God. Fundamentalists apply literal interpretation to the text of their original scriptures, based on faith alone.
Originalism as a constitutional doctrine only surfaced in 1980 and it challenges the entire range of precedent not in accord with originalist thinking. Originalists have criticized Roe v. Wade, Brown v. Board of Education and the Federal Violence Against Women Act, as these topics were not considered in 1787, 1868 or 1994. Abortion and privacy, public schools and domestic violence are not words known, understood or existent in the vocabulary of originalists.
To evaluate the validity of originalism today we must examine known historical facts about the framers to determine the understanding of the words they used. Unlike the ancient scribes, we have actual empirical evidence about the framers and can reconstruct their state of knowledge of 230 years ago. It was a different world.
The framers were an elite group of white men who owned substantial property and the majority of them, Northerners Ben Franklin and John Hancock included, owned slaves. They were predominantly Christian Protestants, with only two Deists, two Catholics and no Jews among them. No woman, child, Native American or minority group wrote or signed the original Constitution. No tenant, employee, developmentally disabled child or landless person was a framer. Most were wealthy lawyers.
The question is whether our judges are bound to view the Constitution through the framers eyes only or is it an evolving document which changes its meaning over time to reflect our history, experience, scientific facts and the exponential growth of knowledge we have acquired since 1787?
What did the framers know and think about nuclear fission, cellular design, viruses, motor vehicles, airplanes, assault weapons, genomes, cyberspace, pollution, global warming, radio, television, dynamite, land mines, chemical warfare, public education or contraception – all the advancements in science not known in 1787? The answer is absolutely nothing.
There is no discipline except religious fundamentalism which does not recognize our planet and our nation have changed from what it was in 1787. Originalism is an unrealistic view of today’s world, outdated and elitist. It is gender-biased, it disrespects minorities, is undemocratic, gives judges greater power than other branches of government and gives excessive meaning to the words of the framers. It is a mindset intended to obscure the basic legal rights of those who were not the framers.
Originalism is a granite wall erected to perpetuate the values, prejudices and limited state of knowledge available to the framers 230 years ago. There is no parallel in science where knowledge and facts learned since 1787 (or 1868) have a fixed understanding that never changes. Imagine if all physics stopped with Newton.
This is not to say that the intent of the framers should not be considered, but it must be viewed together with many other factors: legislative history, evidence in the record and the vast body of scientific knowledge available to give meaning to the Constitution. Despite originalism, it was scientifically proven that black children who attended segregated schools did not receive an education equal to white segregated students.
Given the varied cultural, ethnic and social diversity of present day America, to rely solely on originalism as controlling doctrine is a huge constitutional step backward, no matter how nicely packaged in civility and decorum. Justice Oliver Wendell Holmes put it best when he said, “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.”
Appointment of strict originalists should be challenged by all who believe the Constitution is a living document to be viewed according to the circumstances and time in which it is used.
That time is 2017 America.
William E. Zimsky is a Durango attorney at Abadie & Schill, P.C., and a member of the United States Supreme Court Bar. His opinions are his own. Reach him at bill@abadieschill.com. Michael McLachlan is a Durango lawyer and a member of the U.S. Supreme Court Bar. His opinions are his own. Reach him at mike@dgoattys.com.