The Supreme Court’s Faux ‘Originalism’(politico.com)
politico.com
The Supreme Court’s Faux ‘Originalism’
https://www.politico.com/news/magazine/2022/06/26/conservative-supreme-court-gun-control-00042417
21 comments
How exactly does making historical, analogical arguments the center of judicial reasoning make the court LESS of a super-legislature? If nothing else, it makes the court MORE likely to be politically active so long as they can find a few pseudo-scholarly articles that make an argument for them. And that's remarkably easy these days when there are lots of ways to get published but far fewer institutions with the resources and time to check the historical scholarship for accuracy.
"Originalism" and "textualism" are two different approaches to legal interpretation that can sometimes but not always overlap. Plenty of people who believe in a "living constitution" ground their reasoning in legal text.
The innovation of originalist legal thought is that they realized so long as they can get enough activists onto law journals to write opinion pieces that make historical arguments, that judges can pretend to point backwards in time having clear-headed wisdom about what people thought "back then," without any clear and objective criteria that can be used to justify the decision or distinguish situations.
In originalism, the law becomes completely arbitrary and based on whichever flavor of the day scholarship judges decide to cite -- even if it's obscure, historically inaccurate, or written from a clearly biased activist perspective.
Ginning up creative ways to reach your preferred outcome and then pretending it's a one-off and so you don't need to explain the logic is a far more political way of making decisions than to ground judicial decision-making in precedent from past legal decisions and from actual text that have to be tested for relevance and accuracy.
"Originalism" and "textualism" are two different approaches to legal interpretation that can sometimes but not always overlap. Plenty of people who believe in a "living constitution" ground their reasoning in legal text.
The innovation of originalist legal thought is that they realized so long as they can get enough activists onto law journals to write opinion pieces that make historical arguments, that judges can pretend to point backwards in time having clear-headed wisdom about what people thought "back then," without any clear and objective criteria that can be used to justify the decision or distinguish situations.
In originalism, the law becomes completely arbitrary and based on whichever flavor of the day scholarship judges decide to cite -- even if it's obscure, historically inaccurate, or written from a clearly biased activist perspective.
Ginning up creative ways to reach your preferred outcome and then pretending it's a one-off and so you don't need to explain the logic is a far more political way of making decisions than to ground judicial decision-making in precedent from past legal decisions and from actual text that have to be tested for relevance and accuracy.
You seem to be saying that all originalism must be fake, a cover for political bias. You fell into the GP's third paragraph. Without ever even attempting to refute it, you just restated the position.
GP had a point. You didn't answer it at all.
Both GP and I assert that a principled originalism is possible, one that is not just a cover for political bias, and that such is superior to a super-legislature. Do you have any answer for our position? "These guys are using originalism as a cover for their bias" isn't an answer. (Unless you're asserting that a principled originalism is impossible - which you haven't stated, let alone supported.)
GP had a point. You didn't answer it at all.
Both GP and I assert that a principled originalism is possible, one that is not just a cover for political bias, and that such is superior to a super-legislature. Do you have any answer for our position? "These guys are using originalism as a cover for their bias" isn't an answer. (Unless you're asserting that a principled originalism is impossible - which you haven't stated, let alone supported.)
You seem to be trying to make my argument into a strawman, and throwing around words like "principle" and "politics" as though they are magic incantations that shut down debate.
My argument is a) textualism and originalism are distinct (you don't refute that) and b) judicial reasoning based on precedent and text is more reliable and workable than attempting purely historical analysis (again, you don't refute that either.) I'm happy to defend that. Instead of asking me to debate myself, it would be interesting to hear an actual effort to defend originalism.
How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?
Originalists aren't bound by past judicial decision making -- every case is a blank slate where the job of the judge is to evaluate the current case against the history of the law, not the history of the court. OP's point was that judges should not be political, and to that extent -- other judicial philosophies are better at constraining politics than originalism.
As to if originalism can produce correct results -- judges can have all of the "principle" in the world, but if they approach law from a broken framework that isn't bound by consistency, the law ends up being a hodge-podge of logically inconsistent decisions with efforts at distinguishing one case from another, and principle ends up being for naught. Ad-hoc historical reasoning should be the realm of politicians and advocates rather than judges.
My argument is a) textualism and originalism are distinct (you don't refute that) and b) judicial reasoning based on precedent and text is more reliable and workable than attempting purely historical analysis (again, you don't refute that either.) I'm happy to defend that. Instead of asking me to debate myself, it would be interesting to hear an actual effort to defend originalism.
How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?
Originalists aren't bound by past judicial decision making -- every case is a blank slate where the job of the judge is to evaluate the current case against the history of the law, not the history of the court. OP's point was that judges should not be political, and to that extent -- other judicial philosophies are better at constraining politics than originalism.
As to if originalism can produce correct results -- judges can have all of the "principle" in the world, but if they approach law from a broken framework that isn't bound by consistency, the law ends up being a hodge-podge of logically inconsistent decisions with efforts at distinguishing one case from another, and principle ends up being for naught. Ad-hoc historical reasoning should be the realm of politicians and advocates rather than judges.
I think a principled (and honest) originalist judge would agree with you insofar as saying originalism is imperfect. It's certainly imperfect and we all know that alternative viewpoints can arise in good faith exploration of history let alone amidst a bad faith culture war scenario.
The problem is no better technique exists that limits the freedom of justices and ensures legislatures have real power! This is explored and explained at length in Scalia's seminal work Reading Law (and you can find easy snippets of his arguments on YouTube).
A few examples:
* If textualism is important as you say, then what era is most important to interpret from? Today with today's meanings of words or the time period when the legislation was actually codified by a deliberative body?
* A legislature's word choice is often the result of compromises between various opposing parties. Is it OK for a justice to ignore this when interpreting those same texts?
* Words change over time [1]. Certain types of change are so common that we have special linguistic words for them! If a word changes to the opposite meaning (which is a common occurrence) does it make the judiciary more or less powerful to have the freedom to use either the historical meaning OR the contemporary meaning when interpreting the text? A pure originalist can only choose one of these options.
These are just some examples of originalism boiled down into a philosophy meant to provide consistency and weight to the deliberative body that once upon a time came up with the texts of these laws in the first place.
[1] https://en.wikipedia.org/wiki/Semantic_change
The problem is no better technique exists that limits the freedom of justices and ensures legislatures have real power! This is explored and explained at length in Scalia's seminal work Reading Law (and you can find easy snippets of his arguments on YouTube).
A few examples:
* If textualism is important as you say, then what era is most important to interpret from? Today with today's meanings of words or the time period when the legislation was actually codified by a deliberative body?
* A legislature's word choice is often the result of compromises between various opposing parties. Is it OK for a justice to ignore this when interpreting those same texts?
* Words change over time [1]. Certain types of change are so common that we have special linguistic words for them! If a word changes to the opposite meaning (which is a common occurrence) does it make the judiciary more or less powerful to have the freedom to use either the historical meaning OR the contemporary meaning when interpreting the text? A pure originalist can only choose one of these options.
These are just some examples of originalism boiled down into a philosophy meant to provide consistency and weight to the deliberative body that once upon a time came up with the texts of these laws in the first place.
[1] https://en.wikipedia.org/wiki/Semantic_change
Well, your post sure read like a strawman, so that seemed like a rather reasonable assumption. (This one is much better.)
> OP's point was that judges should not be political...
Yes.
> ... and to that extent -- other judicial philosophies are better at constraining politics than originalism.
That's where I think you've got some proving to do. In particular, if you care about the text but not the original intent, how do you interpret the text? What other than the original intent should rule how you interpret the text? And how is that other thing - whatever it is - less subject to being politicized than the original intent is?
> How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?
I don't think the historical record or the documentation of intent is that hard to come by, even for the Constitution. Things since then have even more record.
> OP's point was that judges should not be political...
Yes.
> ... and to that extent -- other judicial philosophies are better at constraining politics than originalism.
That's where I think you've got some proving to do. In particular, if you care about the text but not the original intent, how do you interpret the text? What other than the original intent should rule how you interpret the text? And how is that other thing - whatever it is - less subject to being politicized than the original intent is?
> How do you prove or disprove original intent? How do you sufficiently vet historical research to ensure that it's accurate? If a central finding in a judicial case is based on historical analogy that subsequent research shows to be false, what is the proper correction -- does the court on its own make an effort to correct the record, do they throw out the original case, or do you treat every case as one-off attempts to divine the truth based on an imagined historical record?
I don't think the historical record or the documentation of intent is that hard to come by, even for the Constitution. Things since then have even more record.
This isn't convincing to me because jurisprudence is about having a principled and _consistent_ approach toward deriving meaning from laws. Of course your point about stare decisis (precedent guiding decisions) is a good one! No argument there.
The challenge typically is when there is no great precedent to draw from, or the original precedent was based on faulty reasoning (as you admit might be rampant in today's decisions!) How does a textualist derive such a meaning in a reproducible way without originalism? If stare decisis always beats textualism and we can't derive the meaning of laws without understanding the legislature's intent how do we not end up with a super-legislature?
The challenge typically is when there is no great precedent to draw from, or the original precedent was based on faulty reasoning (as you admit might be rampant in today's decisions!) How does a textualist derive such a meaning in a reproducible way without originalism? If stare decisis always beats textualism and we can't derive the meaning of laws without understanding the legislature's intent how do we not end up with a super-legislature?
I would take that as at best an argument that originalism could be applied in edge cases where a law is ambiguous and hasn't been applied or tested before -- but that's a rare situation, even among appellate courts where truthfully many situations could be decided based upon recent cases or controversies.
The difficulty of many recent legal controversies is not that they are legally difficult to resolve using typical jurisprudence but that the outcomes of the case are controversial. If that's what you mean about becoming a super-legislature, then the issue is probably with the nature of judicial review rather than how it's being done.
Legislative intent is frequently applied by scholars who subscribe to different legal philosophies but not necessarily tell the original intent of a law. Debates within a legislative body are probably better evidence than second hand sources, but on the other hand -- legislatures are typically made up of lots of individuals who don't speak with a unified voice, and there may be differing interpretations of the law.
The difficulty of many recent legal controversies is not that they are legally difficult to resolve using typical jurisprudence but that the outcomes of the case are controversial. If that's what you mean about becoming a super-legislature, then the issue is probably with the nature of judicial review rather than how it's being done.
Legislative intent is frequently applied by scholars who subscribe to different legal philosophies but not necessarily tell the original intent of a law. Debates within a legislative body are probably better evidence than second hand sources, but on the other hand -- legislatures are typically made up of lots of individuals who don't speak with a unified voice, and there may be differing interpretations of the law.
Agreed completely - strict textualism usually can't take legislative deliberation into account directly except to handle ambiguities in the written text.
So I'm curious - without judicial review what realistic mechanism would we have to maintain our Bill of Rights etc?
So I'm curious - without judicial review what realistic mechanism would we have to maintain our Bill of Rights etc?
It is this which is important “ With originalists holding six of the Supreme Court’s nine seats, we’re all living in an originalist world.”
Get more Supreme Court judges otherwise all will be lost. Unlike trump USA cannot recover from this.
Get more Supreme Court judges otherwise all will be lost. Unlike trump USA cannot recover from this.
Respectfully: If one side expands scotus for political gain, I guarantee that the other side immediately does the same the moment they get the house and senate. The only way for that not to happen is to guarantee that they never lose the house/senate again. That, my friend, is a dangerous thought and one that may lead to civil conflict. Let's hope the statement you made is not followed - else hell may soon follow that.
And if you think that the court is politicized now, and that's a problem, each party expanding it to get a majority when they're elected is not the way to fix it.
(And if you think that the court is politicized now, and the problem is that it's politicized the wrong way, you're part of the problem. And if you think it's not politicized when it goes your way but it is when it decides against you, you're probably a bit biased.)
(And if you think that the court is politicized now, and the problem is that it's politicized the wrong way, you're part of the problem. And if you think it's not politicized when it goes your way but it is when it decides against you, you're probably a bit biased.)
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One side already has, effectively.
When he floated the notion of expanding the Supreme Court, FDR was vastly more popular than Biden is. You can see how that went.
Your last sentence isn't supported by history: https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_... Plus of course aligned with your first sentence FDR got reelected after that. Twice.
I rate these decisions as the first decisive break from what FDR wrought in the 1930s.
I rate these decisions as the first decisive break from what FDR wrought in the 1930s.
Things are going to get spicy when Loving v. Virginia and P̶l̶e̶s̶s̶y̶ ̶v̶.̶ ̶F̶e̶r̶g̶u̶s̶o̶n̶ get repealed.
edit: I'm dumb.
edit: I'm dumb.
Plessy v. Ferguson explicitly upheld the separate, but equal doctrine underpinning many of the Jim Crow laws. Why would you not want that repealed, even if it has largely been gutted by Brown, Civil/Voting Rights Act, etc.?
Apparently I meant Brown v. Board of Education, not Plessy v. Ferguson. I shouldn't post both in anger and haste.
Interesting article, one I appreciated reading.
There are a few points which don't sit right with me, and I would love to read a rebuttal or even just a similarly styled article by someone on the other end of the spectrum.
(Reading any one side of the news is to live in an echo chamber. It is hard to avoid confirmation bias, but if you don't make any attempt to hear truth you will surely not.
My guidelines:
1. I can talk with my friends about politics only as long as we each agree to hear each other out, to not repeat ourselves, to respect each other, and to not let it get personal. This took awhile, but I now hear perspectives that amaze me.
2. Any article that gets me upset must be matched by another article with another perspective, even though it will invariably get me more upset ;)
3. Learning the truth is objectively a value, and it is worth getting the truth at the cost of being wrong. Better to get an uncomfortable truth before it comes at you in a conversation of 1, 'cause in a debate you have a bias to avoid eating crow.
4. The media are a bunch of liars, and their objectives are NOT to get you facts, their objective is to sell you a story. If you are relying on a story from the press, you are relying on Cinderella and Snow White.
5. Just because your team did something wrong or the others did something right doesn't mean you have to switch teams. There is a "programmers law" that you shouldn't discuss any software unless you can list at least five things that the other software does better than the one you prefer. Even Windows has 5 things it does better than Linux.)
There are a few points which don't sit right with me, and I would love to read a rebuttal or even just a similarly styled article by someone on the other end of the spectrum.
(Reading any one side of the news is to live in an echo chamber. It is hard to avoid confirmation bias, but if you don't make any attempt to hear truth you will surely not.
My guidelines:
1. I can talk with my friends about politics only as long as we each agree to hear each other out, to not repeat ourselves, to respect each other, and to not let it get personal. This took awhile, but I now hear perspectives that amaze me.
2. Any article that gets me upset must be matched by another article with another perspective, even though it will invariably get me more upset ;)
3. Learning the truth is objectively a value, and it is worth getting the truth at the cost of being wrong. Better to get an uncomfortable truth before it comes at you in a conversation of 1, 'cause in a debate you have a bias to avoid eating crow.
4. The media are a bunch of liars, and their objectives are NOT to get you facts, their objective is to sell you a story. If you are relying on a story from the press, you are relying on Cinderella and Snow White.
5. Just because your team did something wrong or the others did something right doesn't mean you have to switch teams. There is a "programmers law" that you shouldn't discuss any software unless you can list at least five things that the other software does better than the one you prefer. Even Windows has 5 things it does better than Linux.)
To be fair there are journalists that don't just want to sell you a story. But the ratio of entertainment media and media with a serious attempt to inform people is sadly rather large.
Ironically in this case they make a great case (in my naive opinion) for a valid originalist take to regulate weapons. If only the debate on the 2nd Amendment could be about these historical points instead of one side arguing for originalism with the other side arguing for a 'living constitution' where any debate about the original meaning of laws is irrelevant.
Many might object at this point to say the the originalists are fake, they use the philosophy of originalism as a propaganda tool to pull the wool over the eyes of the masses. This argument holds no weight as long as the other side rejects originalism as a fundamental presupposition of jurisprudence.
In other words, contemporary American politics gives you two options for viewing our current legal system: either it's a super-legislature where justices are just senators-for-life and can as a group overrule anything on a whim with no repercussions or it's a group whose job is to interpret the text of existing laws applying the intent of our real legislature to actual situations that occur. If the former, then our country has very little hope. If the latter then we can work together to get principled justices who care about textualism.
The article is right that a textualist shouldn't always be allowed to interpret along the lines of what they think is right, but you can't throw out the baby with the bathwater! Their argument is: originalists are unprincipled therefore originalism is wrong. This holds no water for me.