Originalism: The Original Trigger Warning

Supreme Court nominee Judge Neil M. Gorsuch looks on in the East Room of the of White House, January 31, 2017. Photo by Olivier Douliery/Abaca(Sipa via AP Images)

Neil Gorsuch will soon be an associate justice of the Supreme Court. Barring any eleventh-hour scandal (unlikely, if one is to judge by his haircut), the Senate will confirm him. It will be confirming a young man, in judge years, a reliable conservative in politics and an originalist in legal philosophy.

The first two traits are unobjectionable in a judicial nominee—we expect presidents to nominate people with views consummate with their own ideology (or, in Trump’s case, the ideology he promised Christian conservatives he would have at the time of the nomination). There is some opprobrium hanging over the fact that it is a “stolen seat,” but that shame attaches to the Senate, not to Trump and certainly not to Gorsuch.

But what does it mean that Gorsuch is an originalist? In its simplest form, originalism holds that the Constitution should be interpreted according to its original meaning, and not according to the personal preferences of an individual judge. There is, in the academic world, a robust debate about the form and function of originalism. But in the political arena, intoning the mantra of originalism has zero meaning. Originalism is the functional equivalent of right-wing trigger warnings and safe spaces. Pure jiggery-pokery.

Originalists sometimes claim that originalism was really the “first” constitutional jurisprudence, and that it is modern “living constitutionalists” who have abandoned first principles. They can find large accumulations of data to support their claim, but they misread it. It is true that nineteenth-century jurists sometimes resorted to the “intent of the Founders” and the “original meaning” to interpret the Constitution. But nineteenth-century jurists used original meaning as one of many canons of interpretation. They applied rules that started with the text of the Constitution. If the text could not produce a clear meaning, they applied intertextual rules of interpretation. They would look to the section of the Constitution under consideration and interpret it in light of the section’s purpose and the section’s purpose within the whole document. They would reject interpretations that produced irrational results or were at cross-purposes with other sections. When these interpretive rules could still not produce a certain meaning, they looked to extra-textual sources, such as those that established the Founders’ intent. In short, original meaning was an interpretive tool, not a philosophy.[1]

Originalism in the twentieth century, at least before it achieved theoretical coherence, was wielded like a cudgel. Franklin Delano Roosevelt’s Democrats protested the Supreme Court’s judicial assault on New Deal legislation by claiming that the Supreme Court had overstepped its institutional role. For evidence, New Dealers turned to the Founding. In the 1950s, conservatives decried the Warren Court’s civil rights decisions, notably Brown v. Board of Education (1954) and Cooper v. Aaron (1958), because of their violation of original understandings of states’ rights. In both cases, the judiciary was seen as usurping a power in clear violation of principles understood at the Founding.

Originalism began to cohere as a judicial philosophy in the 1970s. The term itself was, like so many terms, coined by a critic. Paul Brest of Stanford Law School wrote “The Misconceived Quest for Original Understanding” in 1980, a lengthy critique of those commentators who complained that judicial activists had been unfaithful to the text of the Constitution.[2] They had in mind the Warren Court and the Burger Court, whose collective work had created a federally-enforceable right to equal access to education, bolstered the rights of the accused in criminal cases, and given women a limited right to abortion.

Conservatives cried foul. Such rights were not anywhere in the text of the Constitution, they said. Such “constitutional rights” were created from whole cloth by judges. What was needed was a judicial philosophy, one that would provide a guide to constitutional interpretation that was politically neutral. Originalism fit the bill.

A quick distinction needs to be drawn between the originalists of the 1970s and 80s and originalism today. When the first originalists spoke of the Constitution’s original meaning, they tended to put special emphasis on the Founders, loosely defined. Scholars have called this “original intent originalism.” As originalists began to shore up the methodological boundaries of their interpretive strategy, they settled on “original meaning originalism.” In place of the fuzzy “intent of the Founders,” originalists substituted the original public understanding of the document as a guide to fixing the meaning of the Constitution. Originalists today tend to be of the “original meaning” variety, as is Gorsuch.

We must also draw a distinction between originalism as a philosophy and as a discrete interpretive strategy. Certain sections of the Constitution cannot be understood except by reference to original meaning, and no “living constitutionalist” would disagree with that. To take an obvious example, Article IV, section 4 of the Constitution says that the United States “shall protect each of [the States] … against domestic Violence.” To use the words “domestic violence” today conjures up images of Ray Rice coldcocking his fiancé in an Atlantic City elevator. But in 1787-88, the immediate reference was Shays’s Rebellion in western Massachusetts. “Domestic violence” in 1787 meant insurrection. No reasonable living constitutionalist would argue that the Domestic Violence Clause of the Constitution meant to comprehend Ray Rice.[3]

Where the originalist and the living constitutionalist depart is usually connected to the “evolving” meaning of core concepts within the text. Whether we are talking about “commerce” in Article I, the Eighth Amendment’s prohibition on “cruel and unusual punishments” or the Fourteenth Amendment’s guarantee of “equal protection of the laws,” the precise application and meaning of these core concepts have most assuredly changed over time. Let us take an example. If a state passed a law that ordered that the punishment for marijuana would be to cut off the soft part of ear and brand the letter J on the convicted person’s forehead, would this constitute “cruel and unusual punishment?” The obvious answer for the layperson would be yes. But for the originalist, the answer is no.

It is no slander to originalists to use this example. Originalists believe that the Eighth Amendment’s language barring “cruel and unusual punishments” means what it meant to most reasonable people at the time of its proposal, adoption, and ratification. Corporeal punishments were in common use when the Eighth Amendment was ratified and remained in use afterwards. It was only during the criminal reform movement of the nineteenth century that such punishments (such as the pillory, flogging, or mutilation) came to be abolished.

Now, most originalists would view this as a positive development, and applaud the legal principle. They would also note that the change came as a result of the legislature—the only branch entitled in our system to pass new laws. If the legislature decided to turn back the clock, then the originalist judge might only say that the clock could not be turned back further than 1791. So flogging, branding, and mutilation are still in.

Principled, yes. Also stupid. And I use this example because Antonin Scalia did, in his famous essay defending originalism as the least evil means of constitutional interpretation in 1987. Scalia admitted in the article that, faced with such a case, he doubted that he could apply the originalist rule. To be clear, Scalia was not saying that he lacked the courage of his convictions. Rather, he was pointing out that originalist judges operated in the real world, not in some fantasy headspace where doctrinal purity is the measure of a man or a woman. And in his own jurisprudence, Scalia used originalism more as an interpretive tool—and one among many—that guided a conservative legal philosophy.[4]

To be blunt: Scalia was not an originalist. Not really. He used originalism when he believed it appropriate, but he moderated it (and outright abandoned it) at key moments.[5] So why do we remember him as an originalist? Part of the reason is that he spent so much time telling everyone he was an originalist to contrast his conservative legal philosophy with the “living constitution” school. Like most Supreme Court justices, Scalia accepted multiple speaking engagements every year. He played the role of provocateur to perfection, telling audiences that the Constitution was dead, that those who failed to interpret it according to its original intent were “at sea,” and otherwise belittling his opponents.

One does not simply argle-bargle...

One does not simply argle-bargle…

I saw Scalia do this once, in Atlanta at a Continuing Legal Education seminar. The subject was constitutional law, and the sessions featured big names like Jack Balkin from Yale Law School and Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit. As with all big sessions, the real heavy hitters came at the end. Scalia was billed last. The penultimate speaker was C. T. Vivian, the civil rights warrior. In a warm and disarming voice, he told the assembled lawyers about what it took to register black people to vote in Alabama in 1965. He described how he and his people would be turned away at the courthouse steps by the white sheriff. “We’d wait about ten minutes, let him get real comfortable inside,” Mr. Vivian related. “Then we’d go right back up and get sent back down again.”

On the fourth trip of the steps, the sheriff socked Vivian square in the stomach with a billy club, sending him sprawling back down the steps. “I used to run backwards down the stairs when I was a kid,” he said to us all, a slight smile on his face. “It all came back to me.” And then he went back up. This time, the sheriff slugged him straight in the jaw and sent him sprawling. Such was C. T. Vivian’s commitment, proved again and again during the Civil Rights struggle.

Mr. Vivian was asked at the end what it was like to have been on the bridge at Selma, to see the stormtroopers bearing down on him. “I was scared,” he said, quietly. “I didn’t want to get knocked down. When I was, I didn’t want to get back up. But you get back up. You do it for your children. You do it because you have to. Because,” he added with quiet conviction and genuine humility, “Every day has to be spent making America America.” The audience was moved. A room full of both conservative and liberal lawyers rose to their feet and burst into applause.

It was a tough act for Antonin Scalia to follow. Nor did it help that Scalia projected his famous arrogance throughout his rambling speech. He scolded those in the audience who thought the Constitution was a living document. He ridiculed those who might interpret the Constitution in light of evolving social values, “whatever those are,” he added with a roll of his eyes. On the subject of gay marriage, he smirked and hugged the podium before admonishing us all that “the Constitution has nothing to say about homosexual sodomy.”

Some people (including, we are told, Ruth Bader Ginsburg) found Scalia’s combative demeanor charming. I regret to say I never knew him well enough to be charmed by him, although several trusted friends of mine have remarked on his intellectual curiosity, love of opera, and fondness for anchovy pizza, all of which speak well of him. But I found his arrogance off-putting. This was especially true when he answered a question about the Supreme Court’s opinion in Shelby County v. Holder, in which the Supreme Court struck down part of the Voting Rights Act. The question was pertinent, given that C.T. Vivian had just given witness to the kind of human struggle necessary to achieve the law. But Scalia waved it away and said that racial political issues had largely been solved, at least when it came to voting.

Whether you believe Scalia right or wrong, the point is actually about jurisprudence. Chief Justice John Roberts authored Shelby County, and both of the Court’s prominent originalists (Scalia and Thomas) joined in his opinion. But Roberts’s opinion, with its emphasis on “equal state sovereignty,” is hardly originalist. No reading of the Civil War Amendments and their original meaning could conclude that the enormous grant of authority they gave to Congress to investigate and guard against egregious rights violations by certain states would not make inroads on state sovereignty, or necessarily scrutinize some states more severely than others. But Scalia had no hesitation joining in the opinion. Conservative, yes. Originalist? Hardly.

If Scalia was not in fact an originalist, or if he was just a “faint-hearted originalist,” (as Scalia called himself) and if he described his originalism as tempered by that pesky thing we call political reality, then why do conservatives insist on describing Scalia as an originalist? Why do conservatives repeatedly demand that Supreme Court nominees be originalist?

Well, for the same reasons that liberal academics put trigger warnings on their course syllabi. Trigger warnings are supposed to warn students that course material (whether images, lectures, books, or discussions) might “trigger” trauma in students. But trigger warnings do no such thing. They can do no such thing, both because triggers are individual-specific and trauma has been so broadly defined that anything and everything encompasses it.[6] A trigger warning on a syllabus (and perhaps, just perhaps, the public defense of them by academics on Twitter and Facebook and in the Huffington Post) is more of a signal to everyone about the syllabus writer’s sympathies. I stand with the oppressed, they say. I respect their experiences and recognize my own privilege.

People on the right have roundly ridiculed trigger warnings (along with safe spaces and microaggressions) as soft and juvenile and snowflakey. To them I would answer: originalism is your safe space. Your security blanket. When Rush Limbaugh or Donald J. Trump says he wants originalist judges, he doesn’t mean it. What they mean is that they want a conservative, one who will roll back judicial protections for homosexual rights, reproductive rights, and civil rights. Like the academic’s placement of a trigger warning on a syllabus, conservative politicians’ use of the word “originalism” is a method of signaling to other conservatives.

The left is often (and justly) accused of moral smugness. After all, who wants to stand with the oppressor? Who is for inequality? Conservatives have been on the moral defensive over social issues ever since the Civil Rights Movement. But with originalism, conservatives claim the moral high ground. What’s more politically correct than revering the Constitution? Originalism is all about psychological catharsis, a claim on the kind of moral smugness so long denied to the conservatives standing athwart history, yelling stop. Those who use it in the political arena pretend the principle in order to shield themselves from the very charge of hypocrisy that they cast upon others.

I stole that last thought. “Hypocrisy is the beginning of virtue,” Antonin Scalia said, when I saw him speak in Atlanta. “You want to make them lie.” He was defending originalism by arguing that we are better off when judges are forced to violate their principles by saying things that they did not mean. Who would have thought it would apply to the president who named his successor?

H. Robert Baker is an associate professor of History at Georgia State University and the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Ohio University Press, 2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (University Press of Kansas, 2012).  His current research explores the influence of historical consciousness on constitutional thinking, as well as the nature of constitutional change over time.

References

[1] Although not entirely on point, anybody interested in the original meaning of original meaning, and the place of original meaning in the original debates over the meaning of the Constitution, should read Jack N Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996).

[2] Paul Brest, “The Misconceived Quest for the Original Understanding,” Boston University Law Review 60 (1980): 204–38.

[3] This example is used by Jack Balkin to draw the simple distinction between his use of “originalism” as an interpretive tool and the dispositive use of it by originalists. See his book Living Originalism (Belknap Press, 2014, reprint ed.)

[4] Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849–65.

[5] I wish I could claim this as my original observation, but the hat tip goes to Randy E. Barnett, “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism,” University of Cincinnati Law Review 75, no. 1 (Fall 2006): 7–24.

[6] Katy Waldman, “The Trapdoor of Trigger Words,” Slate, September 5, 2016, http://www.slate.com/articles/double_x/cover_story/2016/09/what_science_can_tell_us_about_trigger_warnings.html.

Comments

  1. “It is true that nineteenth-century jurists sometimes resorted to the “intent of the Founders” and the “original meaning” to interpret the Constitution. But nineteenth-century jurists used original meaning as one of many canons of interpretation. They applied rules that started with the text of the Constitution. If the text could not produce a clear meaning, they applied intertextual rules of interpretation. They would look to the section of the Constitution under consideration and interpret it in light of the section’s purpose and the section’s purpose within the whole document. They would reject interpretations that produced irrational results or were at cross-purposes with other sections. When these interpretive rules could still not produce a certain meaning, they looked to extra-textual sources, such as those that established the Founders’ intent. In short, original meaning was an interpretive tool”

    THIS IS STILL TRUE. Original meaning is a bucket of tools that lead us to the [original] meaning. We only use “original”, because idiots like you have butchered the ACTUAL meaning. I prefer “actual”, but it is the same.

  2. “If a state passed a law that ordered that the punishment for marijuana would be to cut off the soft part of ear and brand the letter J on the convicted person’s forehead, would this constitute “cruel and unusual punishment?” The obvious answer for the layperson would be yes. But for the originalist, the answer is no.”

    This is an untrue statement. And you need to back it up with examples of originalists saying this. What constitutes “cruel and unusual” is left to the judiciary and to society.

    • Read Scalia’s argument. I provided a citation.

      • Scalia was never the best originalist. He is as conservative as originalist.

      • I remind of your actual correct statement here – ”
        To be blunt: Scalia was not an originalist. Not really. He used originalism when he believed it appropriate, but he moderated it (and outright abandoned it) at key moments”

      • Scalia’s biggest problem is that at heart, he was a bit of a nationalist conservative. And he wasn’t as immersed in Natural Rights as is necessary to be a proper originalists. If you don’t understand Natural Rights thoroughly, it is impossible to be a proper originalist or fully understand the Constitution at all. This is obviously a critical failure of leftists judges and lawyers.

      • Here is the problem with your “cruel and unusual” argument and why Scalia isn’t taking an originalist view. Had Scalia been right and originalist, the Constitution would actually stipulate “mutilation, markings, intentional infliction of pain” etc. But they leave it to the Justices of the Court to make that determination and act as a check and balance against the state. And that line may change over time. This is different from, say, the word “arms” which actually has a very broad meaning from knives to bats, directed chemical weapons, electric devices and laser pistols and the people are free to defend themselves as needed as long as they are not exceeding the definition of arms to the point where they represent a clear and present danger to innocent people. The state must demonstrate that a punishment is not cruel and unusual, that a weapon exceeds the definition of arms, especially those that would be wielded in the defense of the country.

        Yet the same basic language also prohibits the government from interfering in business activities that exceed commerce and that don’t cross a State border. Because we know that “commerce” is defined as the trade of goods, services and money (not employment, pollution, worker safety, quality, etc) and that “among” means between, not within, and therefore, the Feds have no authority if the product does not cross state lines. It isn’t enough for an intrastate activity to “affect” a Federal commerce law or the result of the law, because that would immediately exceed the power delegated and trample both State sovereignty and individual rights. Like the laughable idea that people growing and consuming their own marijuana on their property can be made illegal because it FURTHERS the [proper] goal of a Federal law, which is to stop the interstate sale of marijuana. This is where originalists are actually to the “left” of the left, by defending the right of people to do as they wish on their own property, or at least, defend that from an overbearing Federal government. Whereas leftist seek, not to obey the Constitution and Federalism, but to bypass both to create a Nationalist system of Socialism (gee, that almost seems like National Socialism) and ensure maximum power to the [non-Federal] Federal government. So, you see, the “living constitutionalist” is just a thinly disguised national socialist that believes that rights are something given and controlled by a centralized government and that state and local governments should be prevented from blocking nationalistic or socialistic goals. This is why “living constitutionalists” came down on the wrong side of Raich and the wrong side of Kelo and the wrong side of Citizens United. Property rights be damned, personal rights be damned, and freedom of speech be damned.

  3. “In the 1950s, conservatives decried the Warren Court’s civil rights decisions, notably Brown v. Board of Education (1954) and Cooper v. Aaron (1958), because of their violation of original understandings of states’ rights. In both cases, the judiciary was seen as usurping a power in clear violation of principles understood at the Founding.”

    AGAIN, this is untrue. You are conflating conservative judicial philosophy with ORIGINALIST judicial philosophy. Originalism also uses a Federalism test which prioritizes the natural and civil rights of the people over state laws which discriminate or over undelegated Federal laws. An ORIGINALIST would be far more likely to rule against the government if it is remotely in violation of the 14th Amendment. And originalists don’t use the term “states rights”, because government has no rights, only people have rights.

    • This sounds more libertarian than originalist proper. In fact, it would go against the entire “original understanding” of nineteenth century government. You might start by reading Bill Novak’s _The People’s Welfare_, if you would like to learn about nineteenth century understandings of the state and power and liberty.

      • The Constitution is based deeply in libertarian natural rights theory. In this, there is essentially zero difference. One can claim to be an originalist and yet be incorrect, there is no assertion of perfect understanding. For instance, anyone who believes that Federal immigration laws or most drug laws are constitutional as in Gonzalez v Raich, is incorrect. This is where Scalia showed his conservatism and Thomas showed his originalism.

  4. “We must also draw a distinction between originalism as a philosophy and as a discrete interpretive strategy. Certain sections of the Constitution cannot be understood except by reference to original meaning, and no “living constitutionalist” would disagree with that.”

    This is a ridiculous statement. The idea that original meaning only counts when a leftist says so, but not when you want to substitute a meaning. The idea that a modern, vastly different meaning is more accurate than the original, ACTUAL meaning.

    • Legitimate originalists agree with me on this point.

      • Sure, even a broken clock is right twice per day. But that’s not MY point, which is that you wish to pick and choose when the original actual meaning is valid and when it is not.

        Living Constitutionalism isn’t just slightly wrong on the Power to Tax Clause (“taxing and spending”/”general welfare clause”), but so wrong that James Madison and Thomas Jefferson ridiculed you for even proposing it. Blatantly wrong on the Commerce Clause, the N&P Clause. And it would be somewhat mitigated if you understood the Naturalization Clause, but it has taken libertarian, truly originalist scholars to explain how the right gets it wrong, while the left is loathe to take away ANY Federal power, even a most vile and abused racist one, because they are, at heart, nationalists and socialists.

  5. “Whether we are talking about “commerce” in Article I, the Eighth Amendment’s prohibition on “cruel and unusual punishments” or the Fourteenth Amendment’s guarantee of “equal protection of the laws,” the precise application and meaning of these core concepts have most assuredly changed over time. ”

    This is another false charge based on your lack of understanding. “Cruel and unusual punishment” is a limitation on government. “Equal protection” is also a limit. In both cases, the originalist will favor the individual over the government when there is a gray area. Commerce, however, is a RIGHT of the people and the actual intent of the law, and the meaning of the law were to PROTECT the natural right of the people to engage in commerce and to prevent state trade wars.

    • Again, this sounds more libertarian than originalist, if by originalist you mean what the serious academics say they mean when they say originalist. If you want a libertarian reading of the Constitution, why lie to yourself and call it originalist?

      • Originalism and libertarianism are properly identical in most every area. If you attempt to view the Constitution through a conservative lens, you will make errors that are not originalist. As an example – “On the subject of gay marriage, he smirked and hugged the podium before admonishing us all that “the Constitution has nothing to say about homosexual sodomy.””

        And yet, the 14th Amendment would quickly demonstrate that making a law that favors heterosexuals is a violation equal protection. One could also say that a well meaning marriage laws that only included men and women could be seen as innocent UNTIL a gay couple wanted the same civil right. Once the law is clarified to EXCLUDE interracial marriage or gay marriage, then it is clear that the purpose of the law is no longer innocent, but actually now intends to provide inequality.

      • Quick, name two things that are based in natural rights.

        1. Libertarianism.
        2. The US Constitution.

  6. “But with originalism, conservatives claim the moral high ground. ”

    Again, you err by conflating two different things. Originalism is neither properly conservative nor liberal, but is independent of those. One could reach a decision that favors government because the power is delegated (obviously not the case with the ACA or Kelo), for instance, in Citizens United, and not necessarily like the result. But in order to properly change it, an Amendment MUST be passed. The thing that the left no longer even attempts to do, because it is purposefully hard.

  7. Please explain how it is that you are right on the Power to Tax Clause and the Father of the Constitution is an idiot. Please explain how it is that you are right on the Commerce Clause, but the Father of the Constitution is an idiot. Do you understand how Federalism even works? Why is the 10th Amendment invalid? How is that you believe that the rationale for the 14th Amendment isn’t limiting but the rationale for the 2nd Amendment IS limiting?

    • I see you are great at making strawman attacks, but run the moment anyone asks important questions. I’d like to see you try that in front of SCOTUS.

  8. Your main failing in your article is that you admit that Scalia isn’t a great originalist, that he himself said he was a faint hearted originalist AND YET, you make him your strawman example and pretend that his deviations from originalism are in fact, originalist. It makes no sense, except that your mischaracterizations are purely intentional and intellectually dishonest. Because I doubt you are actually this dumb.

    • Actually, you’ve proven my point. You are the best possible illustration as to why serious judges or academics can never be true originalists. I’ll leave it to fair minded readers to discern from your comments whether you are to be taken seriously.

      • John Ashman says:

        “You proved my point” is not am actual argument. It is always interesting to see someone else tell others that they know more about them than they know an about themselves.

        When you actually attempt to develop a coherent argument, please to try again.

        Once again, a leftist waves the white flag and calls it a victory.

      • Which is it? It helps to have a coherent argument.

        Originalism would lead to bad results because it is rigid and out of step

        Originalism caves to modern realities because it is impossible to truly originalist

  9. Although every originalist may have a somewhat different tool kit, here is mine:

    1. Is the phrase clear? Why would the plain meaning not be the actual meaning?
    2. Does the phrase have an awkward word choice? If so, why?
    3. What was the intent of the phrase?
    4. What laws were made or not made based on this phrase at the time?
    5. What did the Founders say about the phrase?
    6. What did the critics say about the phrase?
    7. Would the states have signed the Constitution with this understanding?
    8. Has SCOTUS recognized your interpretation at any point in time?
    9. Does the law violate the natural rights of the citizens?
    10. Does the law improperly prioritize government over the people, or the Federal government over the States?

  10. John Ashman says:

    Fair minded readers can ask themselves why the writer would cite Scalia over Thomas when Thomas is a better originalist. And why he would use examples of Scalia’s deviations from Originalism as example of Originalism.

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