Originalism is a scam

[j brown's body]

"Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists. The records of the Constitutional Convention are sparse; we are left largely to rely on James Madison’s notes, but their objectivity has been questioned. As Justice Robert Jackson quipped: "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."

Furthermore, even if we could know precisely what went on behind the closed doors of the Constitutional Convention, the framers did not have authority to bind the nation themselves. The Constitution took effect only upon the votes of the state ratifying conventions, so if any intentions are relevant, it would be theirs. But there is even less evidence available regarding the ratifying conventions. And even if we had verbatim transcripts of each state’s ratifying convention, how does one determine the intent of a collective body—or in this case, of multiple collective bodies? Original intent is a theoretical construct, not a fact in the world.

After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted. Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, ...“for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”

Indeed, on many important issues, including the very question of how to interpret it, the Constitution is silent. ...even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it. How can we be guided by the “original meaning” on a subject the Constitution does not even speak to? Originalists often argue that if the Constitution does not expressly provide an individual right, the right does not exist—much as the majority argued in Dobbs. The same would presumably be true of governmental powers, yet originalists do not contend that the Constitution’s silence means the Supreme Court lacks the power to declare acts of the other branches unconstitutional. Many presidential powers, including the power to remove Cabinet officers, to assert executive privilege over working papers, or to rescind treaties, are similarly not addressed by the Constitution’s text and therefore cannot be determined by “original meaning.”

If one could overcome all of these problems in discerning “original meaning,” one would still have to choose at what level of generality to interpret a constitutional provision. That choice, too, opens up substantial room for discretion. The Constitution gives Congress the power to create an army and a navy. But can Congress create an air force? Only if one reads the references to “army” and “navy” more broadly, as authorizing standing military forces."

Link

I suspect conservatives like it because it comes from an era when only the interests of white, male landowners were considered valid.

 

[Phys251]

"Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists. The records of the Constitutional Convention are sparse; we are left largely to rely on James Madison’s notes, but their objectivity has been questioned. As Justice Robert Jackson quipped: "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."

Furthermore, even if we could know precisely what went on behind the closed doors of the Constitutional Convention, the framers did not have authority to bind the nation themselves. The Constitution took effect only upon the votes of the state ratifying conventions, so if any intentions are relevant, it would be theirs. But there is even less evidence available regarding the ratifying conventions. And even if we had verbatim transcripts of each state’s ratifying convention, how does one determine the intent of a collective body—or in this case, of multiple collective bodies? Original intent is a theoretical construct, not a fact in the world.

After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted. Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, ...“for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”

Indeed, on many important issues, including the very question of how to interpret it, the Constitution is silent. ...even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it. How can we be guided by the “original meaning” on a subject the Constitution does not even speak to? Originalists often argue that if the Constitution does not expressly provide an individual right, the right does not exist—much as the majority argued in Dobbs. The same would presumably be true of governmental powers, yet originalists do not contend that the Constitution’s silence means the Supreme Court lacks the power to declare acts of the other branches unconstitutional. Many presidential powers, including the power to remove Cabinet officers, to assert executive privilege over working papers, or to rescind treaties, are similarly not addressed by the Constitution’s text and therefore cannot be determined by “original meaning.”

If one could overcome all of these problems in discerning “original meaning,” one would still have to choose at what level of generality to interpret a constitutional provision. That choice, too, opens up substantial room for discretion. The Constitution gives Congress the power to create an army and a navy. But can Congress create an air force? Only if one reads the references to “army” and “navy” more broadly, as authorizing standing military forces."

Link

I suspect conservatives like it because it comes from an era when only the interests of white, male landowners were considered valid.

"Originalism" is an ideology. The Constitution never said that it must be interpreted exactly as the writers in 1787 intended. And the courts know it.

 

[j brown's body]

"Originalism" is an ideology. The Constitution never said that it must be interpreted exactly as the writers in 1787 intended. And the courts know it.

They certainly feel free to stray from it. "Alito’s opinion cites Matthew Hale, a 17th-century jurist who conceived the notion that husbands can’t be prosecuted for raping their wives, who sentenced women to death as “witches,” and whose misogyny stood out even in his time."

Link

 

[Rich2018]

"Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists. The records of the Constitutional Convention are sparse; we are left largely to rely on James Madison’s notes, but their objectivity has been questioned. As Justice Robert Jackson quipped: "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."

Furthermore, even if we could know precisely what went on behind the closed doors of the Constitutional Convention, the framers did not have authority to bind the nation themselves. The Constitution took effect only upon the votes of the state ratifying conventions, so if any intentions are relevant, it would be theirs. But there is even less evidence available regarding the ratifying conventions. And even if we had verbatim transcripts of each state’s ratifying convention, how does one determine the intent of a collective body—or in this case, of multiple collective bodies? Original intent is a theoretical construct, not a fact in the world.

After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted. Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, ...“for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”

Indeed, on many important issues, including the very question of how to interpret it, the Constitution is silent. ...even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it. How can we be guided by the “original meaning” on a subject the Constitution does not even speak to? Originalists often argue that if the Constitution does not expressly provide an individual right, the right does not exist—much as the majority argued in Dobbs. The same would presumably be true of governmental powers, yet originalists do not contend that the Constitution’s silence means the Supreme Court lacks the power to declare acts of the other branches unconstitutional. Many presidential powers, including the power to remove Cabinet officers, to assert executive privilege over working papers, or to rescind treaties, are similarly not addressed by the Constitution’s text and therefore cannot be determined by “original meaning.”

If one could overcome all of these problems in discerning “original meaning,” one would still have to choose at what level of generality to interpret a constitutional provision. That choice, too, opens up substantial room for discretion. The Constitution gives Congress the power to create an army and a navy. But can Congress create an air force? Only if one reads the references to “army” and “navy” more broadly, as authorizing standing military forces."

Link

I suspect conservatives like it because it comes from an era when only the interests of white, male landowners were considered valid.

Alternatively, decide how things should be so, and amend the law/Constitution accordingly. What the framers originally intended is irrelevant.

 

[Integrityrespec]

"Originalism" is an ideology. The Constitution never said that it must be interpreted exactly as the writers in 1787 intended. And the courts know it.

So instead of interpreting it as written we let far left progressives invent a meaning that we know they couldn't have dreamed up in 1789. I'll take the Constitution as written until the left or right convinces enough folks to vote to make the changes as specified by the Constitution. Until then, what does it say.

 

[ColdHardTruth]

So instead of interpreting it as written we let far left progressives invent a meaning that we know they couldn't have dreamed up in 1789. I'll take the Constitution as written until the left or right convinces enough folks to vote to make the changes as specified by the Constitution. Until then, what does it say.

Nonsensical bullshit.

 

[Rich2018]

So instead of interpreting it as written we let far left progressives invent a meaning that we know they couldn't have dreamed up in 1789. I'll take the Constitution as written until the left or right convinces enough folks to vote to make the changes as specified by the Constitution. Until then, what does it say.

Or far right conservatives....

 

[choiceone]

So instead of interpreting it as written we let far left progressives invent a meaning that we know they couldn't have dreamed up in 1789. I'll take the Constitution as written until the left or right convinces enough folks to vote to make the changes as specified by the Constitution. Until then, what does it say.

The most glaring problems of originalism are linguistic and related to logic in context.

The first issue is whether or not the interpreter is using the literal words of the law to refer to the actual meanings that the writers intended. Part of this issue is deciding whether or not all of the people who wrote the law and applied in at a certain historical time agreed on the meaning of the word. Today, when Congress or the state legislature makes a law, they spend a lot of time defining crucial terms, but no one did that in the 18th and 19th centuries.

The second issue is that, if different people of the same historical time had a different meaning of the word, which meaning is to be used?

This is why I have long used these problems in relation to the issue of abortion. For many 18th and 19th century texts, it appears that abortion was a word used from quickening onward, because no anti-abortion laws specified that herbs for "menstrual regulation" were illegal. Women used herbal remedies after missing a period without checking whether or not they were pregnant, and nobody made a law against it. FYI, menstrual restoration drugs were/are prescribed in Bangladesh under abortion bans and no one made/makes a fuss. Back to the 19th century, what did abortion actually mean linguistically? And to whom?

The point here is that a text could admit multiple interpretations and this left the possibility of our inability to hold the text to one meaning or another. In turn, different people could make laws that conflicted with the Constitution or each other. What to do?

One example is that, in the latter 19th century, Congress made a law that a woman who was a US citizen and married a foreigner of a nationality that made him ineligible for US naturalization lost her US citizenship upon the marriage. This law was applied for several decades until, in 1929, the SC decided in a particular case that the law was unconstitutional. Any law, federal or state, might last for a long time unless its constitutionality is challenged.

When such a law is challenged, which originalism do we rely on, the literal linguistic one or a made-up historical unity one?

For example, the weakness of Dobbs is that nothing in the US Constitution suggests that any state anti-abortion restriction would be within the meaning of the US Constitution. It isn't that women have a right to abortion, but that they have rights to life, liberty, and property and 4th A and 13th A rights, so it isn't just a 14th A issue. Dobbs left open the possibility that specific state anti-abortion laws could still be challenged at the SC level because it didn't use linguistic originalism and did try to use historical originalism in a deeply flawed way.

 

[j brown's body]

So instead of interpreting it as written we let far left progressives invent a meaning that we know they couldn't have dreamed up in 1789. I'll take the Constitution as written until the left or right convinces enough folks to vote to make the changes as specified by the Constitution. Until then, what does it say.

Like "...even the Supreme Court’s power to declare acts of Congress or the executive branch unconstitutional is nowhere set forth in it."

 

[j brown's body]

The most glaring problems of originalism are linguistic and related to logic in context.

The first issue is whether or not the interpreter is using the literal words of the law to refer to the actual meanings that the writers intended. Part of this issue is deciding whether or not all of the people who wrote the law and applied in at a certain historical time agreed on the meaning of the word. Today, when Congress or the state legislature makes a law, they spend a lot of time defining crucial terms, but no one did that in the 18th and 19th centuries.

The second issue is that, if different people of the same historical time had a different meaning of the word, which meaning is to be used?

This is why I have long used these problems in relation to the issue of abortion. For many 18th and 19th century texts, it appears that abortion was a word used from quickening onward, because no anti-abortion laws specified that herbs for "menstrual regulation" were illegal. Women used herbal remedies after missing a period without checking whether or not they were pregnant, and nobody made a law against it. FYI, menstrual restoration drugs were/are prescribed in Bangladesh under abortion bans and no one made/makes a fuss. Back to the 19th century, what did abortion actually mean linguistically? And to whom?

The point here is that a text could admit multiple interpretations and this left the possibility of our inability to hold the text to one meaning or another. In turn, different people could make laws that conflicted with the Constitution or each other. What to do?

One example is that, in the latter 19th century, Congress made a law that a woman who was a US citizen and married a foreigner of a nationality that made him ineligible for US naturalization lost her US citizenship upon the marriage. This law was applied for several decades until, in 1929, the SC decided in a particular case that the law was unconstitutional. Any law, federal or state, might last for a long time unless its constitutionality is challenged.

When such a law is challenged, which originalism do we rely on, the literal linguistic one or a made-up historical unity one?

For example, the weakness of Dobbs is that nothing in the US Constitution suggests that any state anti-abortion restriction would be within the meaning of the US Constitution. It isn't that women have a right to abortion, but that they have rights to life, liberty, and property and 4th A and 13th A rights, so it isn't just a 14th A issue. Dobbs left open the possibility that specific state anti-abortion laws could still be challenged at the SC level because it didn't use linguistic originalism and did try to use historical originalism in a deeply flawed way.

The fetus is not mentioned in the Constitution.

 

[Pyrite]

They certainly feel free to stray from it. "Alito’s opinion cites Matthew Hale, a 17th-century jurist who conceived the notion that husbands can’t be prosecuted for raping their wives, who sentenced women to death as “witches,” and whose misogyny stood out even in his time."

Link

This (above) is especially sloppy and egregiously dishonest - but necessary, perhaps, to try to justify overturning Roe, given that, in Colonial times, abortions were allowed up to "quickening".

 

[Checkerboard Strangler]

"Originalism" is an ideology. The Constitution never said that it must be interpreted exactly as the writers in 1787 intended. And the courts know it.

There's only a few thousand words in the entire document.
Sorry but a book report is no way to structure the architecture of an entire government and its laws.
The Constitution is not and never was some ship in a bottle that must never be touched.

 

[NWRatCon]

The fetus is not mentioned in the Constitution.

But "person" is, and always with reference to someone already born. Dobbs is incredibly poorly reasoned, bady sourced, which only serves to demonstrate how ideological and illogical it is. Originalism has always been a fraud, and never applied consistent because of that. The current cabal of idiotic ideologues blithely ignore the original text when it suits them (which is usually), like the entire 9th and 14th Amendments.

Justice Breyer is a much more astute jurist than any of them ever have been.

 

[Port & Starboard]

Throughout US history the Constitution has added 27 amendments including the "Bill Of Rights" proving that it can be made even better by the will of the people.

"We the people" in every state have a right to protest our state house & state representatives. "We The People" can demand that statutes/laws/issues be addressed on the ballot in our states.



You work around the originalists by making Constitutional amendments through a coalition of states which has to begin at the grassroots level in every individual state.

 

[j brown's body]

But "person" is, and always with reference to someone already born. Dobbs is incredibly poorly reasoned, bady sourced, which only serves to demonstrate how ideological and illogical it is. Originalism has always been a fraud, and never applied consistent because of that. The current cabal of idiotic ideologues blithely ignore the original text when it suits them (which is usually), like the entire 9th and 14th Amendments.

Justice Breyer is a much more astute jurist than any of them ever have been.

And yet, a woman really is is a person, even if she is believed to be the source of all evil.

 

[NWRatCon]

And yet, a woman really is is a person, even if she is believed to be the source of all evil.

A very good point. I've been a defender of Roe as an appropriate balance of constitutional interests, but I think it was done on the wrong basis. I would have followed the 9th/14th paradigm, instead. I would never have prohibited abortion, but I do believe the State has an interest in appropriate health management on behalf of its citizens. Science and medicine determine those issues, however, not politics.

The 9th amendment is a powerful basis for protecting legitimate constitutional rights, which is why conservatives fear and ignore it. This court is falling back on the discredited precedents of the anti-reconstructionists of the late 19th Century. They are systematically eliminating the 14th Amendment from the Constitution.

 

[OrphanSlug]

Of course Originalism is a scam, because in today's context Republican driven Originalism is not really about "original intent or the original meaning of the text." The harsh reality is today's Republican Party is not about original means from historical meaning, it is more about construe meaning in modern context pretending it is historical meaning.

New Originalism birthed the issues we see with the 2nd Amendment interpretations like the Heller ruling.

It is not using historical meaning to declare that the preamble portion of the 2nd Amendment should only be used to clarify ambiguity in the rest of the text. Reading the 2nd Amendment text backwards is not original meaning, but rather New Originalism that has shit to do with actual history.

Historical Originalism is not even synonymous with a historical argument given where New Originalism is applied, it is still interpretational to political goals absent historical intentions.

 

[Rich2018]

The fetus is not mentioned in the Constitution.

Neither were women in the original Constitution.

 

[choiceone]

This (above) is especially sloppy and egregiously dishonest - but necessary, perhaps, to try to justify overturning Roe, given that, in Colonial times, abortions were allowed up to "quickening".

What's really disgusting is that 17th c American people were so reactionary that the 18th century colonies and the revolutionary Americans were determined to assert freedom of religion and much more to prevent the country from going back to justice such as that a la Hale. Alito basically ignored the 18th century because it didn't support his own view.

 

[choiceone]

But "person" is, and always with reference to someone already born. Dobbs is incredibly poorly reasoned, bady sourced, which only serves to demonstrate how ideological and illogical it is. Originalism has always been a fraud, and never applied consistent because of that. The current cabal of idiotic ideologues blithely ignore the original text when it suits them (which is usually), like the entire 9th and 14th Amendments.

Justice Breyer is a much more astute jurist than any of them ever have been.

As I said, if you applied "originalism" properly, it would have to be a linguistic originalism, too, and that couldn't be as easily manipulated to serve just any ideology. Alito completely neglected the problem of linguistic meaning. That is unbelievably dishonest.

 

[choiceone]

Neither were women in the original Constitution.

Women were clearly logically implied in the original Constitution in the Census passages. All persons in the US had to be counted and the authors added that this included debt servants. At that time, there were both male and female debt servants, and female debt servants weren't a tiny minority.

If you read the Constitution and amendments thoroughly, you find that the authors used person, citizen, male citizen, etc., very carefully, as they didn't want women to have the right to vote for federal offices. That's why we had to have an amendment for it.

 

[Rich2018]

Women were clearly logically implied in the original Constitution in the Census passages. All persons in the US had to be counted and the authors added that this included debt servants. At that time, there were both male and female debt servants, and female debt servants weren't a tiny minority.

If you read the Constitution and amendments thoroughly, you find that the authors used person, citizen, male citizen, etc., very carefully, as they didn't want women to have the right to vote for federal offices. That's why we had to have an amendment for it.

Good point. (White) women were to be counted for the census, and were regarded as citizens, albeit second class citizens

But an unborn child was not so counted, do we take from this that the framers regarded life starting at birth, not conception ?

 

[Along Came Jones]

A very good point. I've been a defender of Roe as an appropriate balance of constitutional interests, but I think it was done on the wrong basis. I would have followed the 9th/14th paradigm, instead. I would never have prohibited abortion, but I do believe the State has an interest in appropriate health management on behalf of its citizens. Science and medicine determine those issues, however, not politics.

The 9th amendment is a powerful basis for protecting legitimate constitutional rights, which is why conservatives fear and ignore it. This court is falling back on the discredited precedents of the anti-reconstructionists of the late 19th Century. They are systematically eliminating the 14th Amendment from the Constitution.

Perhaps Griswold v. State of Connecticut (1965) gave us the classic clash between liberal and conversative views on the applicability of the 9th Amendment?

From a concurring opinion
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. [. . .] Other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. -- Justice Arthur Goldberg

In dissent
To say that the Ninth Amendment has anything to do with this case is to turn somersaults with history. The Ninth Amendment, like its companion, the Tenth…was framed by James Madison and adopted by the States simply to make clear that the adoption of the Bill of Rights did not alter the plan that the Federal Government was to be a government of express and limited powers, and that all rights and powers not delegated to it were retained by the people and the individual States. Until today, no member of this Court has ever suggested that the Ninth Amendment meant anything else, and the idea that a federal court could ever use the Ninth Amendment to annul a law passed by the elected representatives of the people of the State of Connecticut would have caused James Madison no little wonder. -- Justice Potter Stewart

 

[NWRatCon]

Good point. (White) women were to be counted for the census, and were regarded as citizens, albeit second class citizens

But an unborn child was not so counted, do we take from this that the framers regarded life starting at birth, not conception ?

In no other circumstance, at the time of the drafting, were "the unborn" accorded any "rights", so, yes, the framers regarded life as starting at birth.

 

[Blue Dog]

The text should always be considered first. Those promulgating “original intent” are pushing an agenda…