The recent appointment of Justice Amy Coney Barrett to the Supreme Court has caused a great deal of consternation on the political left. This follows the previous appointments of over 200 judges to the federal bench during the Trump Administration, almost all of whom endorse a conservative reading of federal statutes and, importantly, of the Constitution.
The conservative reading of statutes and the Constitution are usually bracketed under the labels textualism and originalism, respectively. And while these doctrines have received a great deal of criticism from liberal and progressive lawmakers and citizens alike, most of those analyses fail to confront the issues raised by those who endorse textualism and originalism. This represents a failure of the left to tackle, head on, one of the greatest challenges to progressive politics in our time.
There are good reasons to be nervous. Justice Barrett, who is an originalist, is unlikely to be sympathetic toward a reading of the constitution that entails the legal existence of certain rights that are not specifically enumerated in it. These include a woman’s right to abortion in Roe vs. Wade and rights to non-discrimination on account of gender and sexual identity.
Perhaps the most ardent advocates of originalism and textualism in the past 50 years was the late Supreme Court Justice Antonin Scalia. In his 1995 Tanner Lecture at Princeton University, later published as A Matter of Interpretation: Federal Courts and the Law, Justice Scalia gave a full-throated defense of his style of statutory and constitutional interpretation.
For Justice Scalia and those who agree with him, when interpreting federal statutes, judges must adhere to the meaning promulgated in the text of the law. Anything else, on his view, usurps the balance of power in the federal government. After all, Congress is delegated the power to pass legislation, not the judiciary. If judges stray from the text of the law, then they are anti-democratically legislating from the bench. This is because in our common law system judges must respect the precedent set by prior rulings.
An interesting, and understandable, frustration that Scalia raises has to do with the use of legislative intent in courts of law. He points out that lawyers often use committee reports, which record the proceedings of congressional committees as they debate various bills, to indicate what the supposed intent of a bill is. And I believe he is right to find this troublesome: a statute’s meaning, for the purposes of understanding the law, surely lies in what it actually says, not in what Congress people wanted it to say. Moreover, for every Congress person on the floor of a committee there is probably a different intent to be found.
The concerns that Scalia raised are, in my opinion, entirely legitimate. Things, however, get a little sticky when we turn toward his position on reading the constitution. His originalism turns on a distinction between a supposed original meaning of the various clauses in the constitution and the supposed current meanings, ostensibly held by liberal jurists and those on the political left (though, he notes, this is not always the case). When adjudicating disputes concerning the Constitution, the originalist, says Scalia, “knows what he is looking for: the original meaning of the text.”
An example can help us understand what Justice Scalia means. He believed that there was no question as to whether the death penalty was constitutional. For him, it was. Where the Eighth Amendment says that no cruel or unusual punishments can be inflicted, we should, in Scalia’s opinion, remember that in 1791 the death penalty was not considered unusual. In fact, the right to life is explicitly considered in the Constitution in the Fifth Amendment as something that can be taken away, but only in the case that the defendant has not been deprived of due process. This is the type of Constitutional reading endorsed by Scalia and other originalists.
Critics of originalism concede that Constitutional interpretation must line up with the plain meaning of the text itself. But, they also generally believe that judges should take into account the evolving moral principles of a changing society. People who hold this view usually invoke the idea of a living constitution. This is the idea that our understanding of the constitution is dynamic, necessarily changing as society moves forward in time.
People who hold this view usually invoke the idea of a living constitution. This is the idea that our understanding of the constitution is dynamic, necessarily changing as society moves forward in time.
The conflict between living constitutionalism and originalism has come to the forefront of many Americans’ minds now that Amy Coney Barrett has a seat on the Supreme Court. Left-leaning folks are concerned about what this means, among other things, for a woman’s right to choose, voting rights, and healthcare. Conservatives, on the other hand, are more prone to see this as a positive step to combat perceived judicial lawmaking.
In a recently published op-ed in The Atlantic, independent Senator Angus King Jr. and Professor Heather Cox Richardson of Fordham University claim that originalism is not consistent. They point out, for instance, that because the air force did not exist in 1789 an originalist should logically conclude that it is unconstitutional — the Constitution only mentions the Army and the Navy. Of course, most originalists do not hold this view.
While they have a point, they present a straw man version of originalism. Originalism accounts for the fact that there are both clear rules and broader principles at work in the Constitution.
Consider the first amendment, which, other things being equal, protects infringements on freedom of speech. An originalist could reasonably hold that speech on virtual platforms should be protected, other things being equal. The founders thought that speech on the variety of platforms available in the late eighteenth century should be protected. I am not saying that originalism is completely consistent — but we should be honest about what it actually says.
The problem with this and other critiques of originalism is that they fail to respond to its fundamental objection to supposedly undemocratic decisions. And some on the political left have at least tacitly acknowledged as much, if for different reasons.
The challenge facing the left seems to be: how can we read the constitution in such a way as to preserve the rights of working people, people of color, LGBTQ+ folks, incarcerated and formerly incarcerated folks, and other marginalized communities while addressing the entrenchment of originalism in the Federal and Supreme Courts.
This is largely a political problem. It would be great if the left had a governing majority in Washington with the ability to pass meaningful legislation, or even amend the Constitution, and appoint judges when necessary. But with conservative courts for the foreseeable future, we also need to bring our intellects to bear on Constitutional interpretation.
Concerning the economy, the political left clearly has a stronger argument (in my opinion). The rapidly rising levels of inequality under the bipartisan neoliberal governing sensibilities of the past two generations and its attendant suffering are proof enough. Concerning the courts, however, we do not have a robust Constitutional interpretive strategy, much less an argument in favor of it. This is not an academic issue. Scholars have been writing about these issues for years. What we need is a strategy, a mode of conducting and guiding our hermeneutical sensibilities at large.
One might respond that we should reject method altogether and ask that judges consider each case as it comes before them. But nominalism is unconvincing, and is probably not conducive to protecting marginalized communities and individuals. It certainly does not give us a way to respond to the massive conservative majority in the various federal courts.
I don’t quite know what we should do. Regardless, the wellbeing and flourishment of all communities, especially oppressed BIPOC, is at stake. So is the protection of every citizen’s basic rights, such as the right to vote. If the past four years have made anything clear, it is that the integrity of our judicial system, and our democracy, hinges on how we confront the ideological leanings of our current court system.
Last updated 10/27/20
Featured art: Graphic by Dawit Borrows
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