The Supreme Court and the Limits of Originalism
In 1986, Antonin Scalia, one of the most conservative justices on the Supreme Court in recent decades, was confirmed in the Senate by a vote of 98-0. In 1993, Ruth Bader Ginsburg, one of the most liberal justices, was confirmed by 96-3. In our current polarized nation Supreme Court nominees struggle to get past 50 votes. In 2000, 62 percent of Americans approved of the job being done by the Supreme Court; by 2024, that figure was 43 percent. The federal judiciary is viewed as increasingly politicized and judge/court shopping is a political tool.
In his defense of the Constitution in Federalist Paper #78, Alexander Hamilton explained that “It is emphatically the province and duty of the judicial department to say what the law is.” This became embedded as a Constitutional norm in 1803 when Supreme Court Chief Justice John Marshall (Marbury v. Madison) declared a law had violated the Constitution. Judicial supremacy is an essential check on executive and legislative branch excesses at all levels of government but respect for the Court’s power to do so requires respect for the Court. That respect today is at risk.
A major part of the Supreme Court’s response by conservative justices in recent years has been to turn to originalism in framing decisions. The term was first used in 1971 by Yale law professor Robert Bork who argued that the way to interpret the Constitution was to determine the intentions of the framers. “Intent originalism” has a close cousin called “meaning originalism” which stresses looking at what the Constitution’s framers understood its words to mean. In both versions, proponents argue that originalism provides an essential way to address current Constitutional issues without being swayed by political, social or public pressures of the moment. Yet originalism is not without controversy, and its weaknesses may be contributing to declining trust in the Court.
Though the term is recent, the idea of originalism is not. Not only judges but government officials and everyday citizens have argued since the founding about the intent and meaning of the Constitution. When state convention delegates debated on whether to ratify the Constitution, its defenders (Federalists) argued that it created a unified nation while opponents (Anti-Federalists) said it only established a compact of sovereign states. These contrasting interpretations of the Constitution’s meaning went unsettled until they erupted into Civil War.
“Intent originalism” assumes one can understand the minds of the framers, discovering what they intended. Yet it’s not easy to get into the minds of framers who were all dead by 1836. Then again not all framers had the same intentions. In 1780 Treasury Secretary Alexander Hamilton (a Constitutional Convention delegate) proposed to Congress a national bank and defended it under Article I of the Constitution’s “necessary and proper” clause. Opponents, led by James Madison (also a Convention delegate), contended the framers never intended this as a federal power since the word “bank” appears nowhere in Article I.
“Meaning originalism” also runs into problems because it assumes today’s judges can find what the Constitution’s words meant to the delegates who framed it. The difficulty is that words that stand for ideas are not always precise and can mean different things to different people. As Madison put it in Federalist #37, “ideas should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious to supply words and phrases for every complex idea, or so correct as not to include many equivocally different ideas.”
Originalism seeks to transcend such difficulties by a thorough analysis of original sources – including not only the Constitution but also the Convention Notes prepared by Madison, the Federalist Papers and the state ratification debates. Yet Madison took down only a fraction of what was said, revising his notes well after the Constitution was ratified and perhaps using political calculations to inform his revisions. The Federalist Papers, written by Hamilton, Madison and John Jay were a legal brief in support of ratification and not designed to reflect meanings they did not support.
Further, words on parchment do not give a full sense of the underlying values, norms and moral principles that form the foundation on which the Constitution was constructed. Montesquieu called these the “spirit of the laws.” To suggest one example, the largest section of the Declaration of Independence is a set of charges against the king’s tyrannical rule. For this reason, the first Article of the Constitution is about Congress not the presidency. In Federalist #51, Madison put it succinctly: “In republican government, the legislative authority necessarily predominates.” Yet originalist rulings in recent years have dramatically increased the power of the presidency, seemingly defying the intentions and meaning of the framers.
Originalism’s interpretations come not from some Delphic Oracle but from humans subject as we all are to the impact of life experiences, emotions and biases. A case in point is that of Supreme Court Chief Justice Roger Taney. He had freed his own slaves but hated abolitionists who interfered with states’ rights. In 1857 he wrote the majority opinion in Dred Scott v. Sandford. Scott’s owners had taken him to a state where slavery was illegal and then returned him home. Scott claimed he was free upon entering a free state. Taney concluded, using what today we call originalism, that people of African descent were never citizens and thus not protected by the Constitution. As chronicled by Harvard University’s Jill Lepore in her exhaustive history of the Constitution (We, the People, p. 204) his justification went like this:
“Following [John] Marshall, Taney began with the assumption that it was the Court, and no one else, who decided what the words in the Constitution meant. And then he insisted that the only way to make such a judgment was to argue from a narrow historical record: “The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning,” he wrote . . . Instead, he insisted, “it must be construed and administered now according to its true meaning and intention when it was informed and adopted.”
Finally, originalism does not grapple with the fact that the framers could not have imagined the growth of political parties, today’s extreme political polarization, widespread political gerrymandering and the impact of extreme wealth on public policy and elections. Looking to the original intent of the framers and the meaning of the Constitution’s words when faced with challenges and a world they could not foresee certainly raises questions about originalism as the cornerstone or sole basis for constitutional interpretation.
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