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How the doctrine of “originalism” is reshaping US democracy

The rushed appointment of conservative judge Amy Coney Barrett to the US Supreme Court may be Donald Trump’s most enduring legacy.

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Now that we know the era of Trump is coming to a close, it may be useful to ponder one of his “legacies”: the rebalancing of the Supreme Court of the United States in favour of a conservative majority with the confirmed appointment of Amy Coney Barrett, the sixth conservative, and sixth Catholic, on the Court. Many liberal opponents fear Barrett’s appointment will undo decades of progressive social and political legislation, such as the right to choose, enshrined in the 1973 ruling Roe v Wade, or the more recent prohibition of employment discrimination against gay and transgender workers.

In the course of the Senate Committee’s deliberations last month, Barrett confirmed something that was well enough known about her approach to the constitution, even if what that approach amounts to is poorly understood: following her mentor, the now deceased Supreme Court Justice Antonin Scalia, for whom Barrett clerked early on in her career, she holds to the doctrine of “originalism”.

Explaining what this consists in, she remarked:

So in English, that means that I interpret the constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time. And it's not up to me to update it or infuse my own policy views into it.

At first glance this might seem self-evident. When we read any historical document, we must take account of when it was written. If we do not, we commit the sin of anachronism. Even worse, when dealing with highly politicised documents such as a constitution, if we assume that we may ride roughshod over its historical meaning, we run the risk of simply making it mean what we want it to mean. That might be fine – or not – if you are discussing a poem in class, but if you are a judge, the stakes are rather different. As Barrett said more than once in her confirmation hearings, she takes the view that judges are not in the business of making the law. That, she said, directing her attention firmly at her questioner, a member of the Senate, “is your job”.

If we look more carefully at Judge Barrett’s explanation of this doctrine, however, things become murkier. Note how Barrett began by saying: “So in English…”. This is a colloquialism, of course, but one that nevertheless reveals an underlying set of assumptions about texts and interpretation that is difficult to reconcile with the headline belief that “meaning doesn’t change over time”. Barrett indicated that even though the tenets of originalism can be conveyed in the English language, that language was likely to be too technical or lawyerly for her audience, so she would have to “translate” it into plainer terms.

Strange then, that one of the most common banners under which originalism flies its kite is the idea that we can access the meanings of an historical text like the constitution by asking ourselves what a user of the language at the time of its adoption could have reasonably understood from the words in the document. The doctrine of originalism, it would seem, will itself have a hard time passing the test set for the recovery of correct historical meaning.

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If one consults the professional journals and follows the arguments that have been entered in constitutional law since the 1980s in the US, it is evident that there is more than one type of originalism, but these turf wars need not concern us. Whether one believes that the original intention of the framers should be respected or the original meaning of the words, the point of the theory is to establish the authority of the past. Originalists of all stripes agree with Barrett that laws stand until they are superseded or altered, and when that occurs the same principle applies: new laws mean what they meant at the time of their adoption.

It does not take more than a moment to notice that something awkward is happening around “time” here, around the idea that a distant past, in this case the late 18th century, can still have a substantial grip on our present. The easiest way of getting this in focus is to ask what an originalist would do if a principle enshrined in the constitution or one of its amendments were couched in a language that is no longer current. Or conversely, where a case involves some technology, say mobile phones, which could not have been imagined by the framers.

[see also: Amy Coney Barrett is confirmed to the Supreme Court]

Originalists cast such observations aside, noting that the constitution was deliberately written to capture general cases which could then be applied in particular instances later on. The framers did not, for example, set out to record every type of weapon mankind might invent when they included in the constitution, by its second amendment, the right to “keep and bear arms”. The originalist notes that in such cases one simply needs to “tweak” the original meaning of the text in order to decide the issue in the present. This “tweaking” is also known as the application of general principles to specific case law.

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Let’s return to Barrett’s explanation “in English” of her approach to the constitution. Time, or tense, is clearly marked in what she said: “I interpret the constitution as a law… and I understand it to have the meaning that it had at the time people ratified it.” She uses the present tense for her own actions (“I interpret”); “I understand” means “I understand now, at this moment”. But then she moves in time: “I understand it to have” – now, today – “the same meaning that it had when it was ratified”. This is why she adds for emphasis: “So that meaning doesn’t change over time.” Surely Judge Barrett does not think words never change their meanings over time? Most of us get to notice they in fact do at school, when first encountering literary texts from the distant past. How many classes have heard a teacher explain that the word “gay” used to mean exclusively “light-hearted” or “cheerful”?

Her statement does not quite say that “meaning does not change”; she notes that “that meaning”, the historical meaning of the text, does not change over time. What could this mean? It would be banal to claim the words that comprise an historical document are in some sense fixed. As long as we can be satisfied that we are reading the text as established (even if it went through drafts and revisions), it would be bizarre to imagine we could at a later date simply add new words, or take some out, and the text would remain the same text. Moreover, the text of the constitution cannot, as it were, change all by itself, as if its words somehow degraded like information in an electronic storage device. In fact, the only sensible way of reading this statement is that the meaning of the constitution should not change – or, in other words, our interpretation of the text should be invariant over time.

Now we have arrived at the real issue between originalists and their opponents in matters of constitutional theory, who sometimes declare their belief in a “living constitution”. They are arguing over their different respective interpretations of the constitution and attempting to find ways of trumping each other’s claims. Originalists think the best way of doing this is to imply that correct interpretation can be based on something unchanging: original meaning. And in doing so, they smuggle in a second implication, namely that such an “interpretation” is not really one at all; it is merely the “imminent” meaning of the original text. Great effort is expended in determining such meanings – Judge Scalia often had recourse to dictionaries and historical documents – even if the claim for their legitimacy rests on supposed common sense. The grinding of gears, however, becomes all too apparent when awkward cases arise in which the constitution is silent or simply antiquarian in its use of words.

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In the case of the second amendment, passed in 1791, which grants US citizens the right to “keep and bear arms”, if one were to hold to a strict historical account of the 18th-century meaning of the word “arms”, it could not have referred to a modern handgun, since such weapons had not been invented. As we have seen, an originalist gets around this problem by claiming that the general principle of the amendment is discernible – and fixed – and simply needs to be applied in the current context.

This is why, in the landmark case District of Columbia v Heller (2008), the majority opinion written by Judge Scalia gives a definition of what it calls “bearable arms”. A strict reading, however, would point out that the phrase does not feature in the amendment. Indeed, the reason the court found it necessary to insert this phrase and to gloss it is because contemporary arguments both for and against gun control run into a problem over which types of gun should qualify as acceptable under the amendment. Many have pointed out that the second amendment was not framed with these 21st-century issues in mind. In fact, the amendment was drafted in order to enable state militias to resist future attempts by a federal standing army to impose its will.

The majority opinion in Heller chose to disregard one of the strongest candidates for an “original” meaning of the phrase “bear arms” in 1791, which was “to serve as a soldier”. This is why Scalia felt compelled to specify: “a right to possess a firearm unconnected with service in a militia”. It was the introduction of the phrase “bearable arms”, in the sense of weapons that can easily be carried by a person, that paved the way for a second Supreme Court opinion eight years later, Caetano v Massachusetts (2016), which explicitly addresses the question of anachronism with regard to the type of weapon. It states that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”. So it turns out that originalists not only interpret the evidence for what can be reasonably assumed to have been the meaning of a text in the past, they also deem that things that were not in existence at the time of the adoption of the law fall within its provisions. One can see, I think, why opponents of the doctrine, and of Judge Barrett’s appointment to the court, find her statement about the constitution – “it’s not up to me to update it or infuse my own policy views into it” – hard to accept. 

[see also: The struggle for America’s soul]

Throughout her confirmation hearings, Barrett went to great lengths to distance herself, the judiciary and the Supreme Court from what she repeatedly called “policy”. Again and again she claimed that her role as a judge was to observe the letter of the law, to allow the text, as it were, to speak – and no more. Perhaps there is abroad a belief about texts that coincides with what some 18th-century folk thought about the bible – that it was “self-interpreting”. To some, then, it may come as a surprise to learn that for a text to be a text it must be read, and reading involves interpretation.

“Originalists” know this only too well, but they are uncomfortable with what follows from it: all interpretations are motivated. This is why many liberals suspect that the new constellation of members of the Supreme Court will find it hard to ignore their commitments to conservative principles and Catholic professions of faith. It is also why critics of “originalism” note that the gesture towards “original meaning” is in fact a smokescreen, intended to divert attention away from the fact that all interpretations, including the one about “original meaning”, are motivated. We will find out, in time, how the current Supreme Court will deploy its majority commitments and motivations in its pursuit of policy.

Peter de Bolla is Professor of Cultural History and Aesthetics at the University of Cambridge. His latest book is The Architecture of Concepts: The Historical Formation of Human Rights, which won the Robert Lowry Patten award in 2015.