Originalism is not obvious

Unlike most other progressives, I think Constitutional “originalism” is perfectly reasonable—provided it is used with precision, and not as a smoke screen for critics’ true motives.

In my understanding, “originalism” means to interpret the Constitution, or any law, as having had all of its legal meaning set at the time of its enactment, with the precise words it consisted of, as understood by those who made it law.

That approach is embraced mostly by conservatives, and it’s often derided (including by some misguided Supreme Court justices) as leaving society stuck with the rules of the 18th century. But that’s a mistake. The sorts of interpretations that progressives look for in the Constitution and in federal law, such as the defense of abortion rights, racial integration, voting rights, gay rights and trans rights, are fully compatible with originalism. The Constitution doesn’t have to be twisted for us to read these rights in it; it requires far greater contortions to read the Constitution as excluding these rights.

In fact, I’d go so far as to say that conservative judges who tout their “originalism”, such as Antonin Scalia, are fake originalists. They apply originalism in a shallow and spotty manner, without full appreciation for the choices the ratifiers made.

And notice that I say “the ratifiers”, not “the framers”. The Constitution was not made law at the Constitutional Convention of 1787, it was made law by state legislatures in the years following. It is the textual meaning understood in the aggregate by hundreds of state legislators that was made law, not the intention of this or that framer. That may sound like a pedantic point, but it is actually a fundamental part of the reason the Constitution and its amendments are so vague in so many areas. The medium — massive democratic consensus — is very much the message, which is the broad establishment of rights, with a heavy, explicit bias towards invalidating rules which trample rights.

If you’re not familiar, offhand, with the text of the 9th amendment, I’d like you to try a thought exercise. What single sentence could the ratifiers have added to the Constitution which would make it most clear that the Constitution defends rights in general — even rights that are not explicitly listed in it?

Now, look at the actual text of the 9th amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Let me remind you, this is not merely something the ratifiers thought was true. It’s not merely a guideline. The highest law of the land says that:

1. people have legal rights that cannot be violated, even if those rights aren’t listed in the Constitution
2. you can’t say a particular right doesn’t have legal weight just because it’s not listed in the Constitution

Now, any reasonable person may ask, “OK, but like, that doesn’t mean I have every right imaginable. I don’t have the right to hurt people or pollute or run stop signs. So how do we agree on which rights I do have?”

The answer is: it’s hard. It’s confusing. It’s messy. Figuring out which rights the Constitution says you do and don’t have takes real work, and meaningful interpretation. You don’t only read the 9th amendment; you try to understand the Constitution, federal law, state law, and common law as a whole, as it has been formed by all three branches of government, and you try to balance the relative rights at play.

What does an originalist say to this?

One passage often quoted is Scalia’s dissent in the 2000 case Troxel vs. Granville. The majority decision struck down a law because they felt it violated the right of parents to rear their children. That right isn’t explicitly and clearly asserted in the Constitution or elsewhere, but the majority interpreted the balance of our laws to defend such a right.

Scalia dissented, arguing:

…the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

…I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

I want to take a moment to say that I think this Supreme Court case was wrongly decided. In this case, Scalia was on the right side — but for the wrong reason. I like using this case as an example of unenumerated right because it’s not divisive along partisan lines. The absence of partisan salience here lets me focus on where I think Scalia’s originalism is mistaken.

In this case, grandparents wanted to be able to visit their grandkids, and had convinced a court that this would be good for the kids; the Supreme Court ruled that this violated the right of parents to control their kids’ upbringing. That’s an arbitrary line to draw; what about the rights of the kids, and the grandparents? I think the court, in this case, went too far in overriding state law to defend parents’ unenumerated rights, at the cost of others’.

Go back and read the 9th amendment, above. It does not merely “refuse” to deny other rights. It orders us not to make the rhetorical mistake of treating rights that aren’t listed as inferior to rights that are listed. What is Scalia doing here, if not disparaging a right because it is, in his complaint, “unenumerated”? Scalia’s summary of the 9th amendment is simply false, and it’s worth asking why that might be. When someone pushes so blatantly to shift focus, it suggests they don’t like what they see. Scalia is telling us what he wishes the Constitution said, and did; it seems certain that Scalia would vote against an amendment like the 9th, as written.

Inconveniently for Scalia, the Constitution he wishes he had conflicts with the actual, original document.

The vagueness in the Constitution is not a flaw or a mistake. It’s the result of the process by which it was enacted, a process which involved repeatedly shelving debates about precise legal lines to draw, in favor of articulating general principles. It is not rereading history to interpret the Constitution to confer rights that the ratifiers didn’t have in mind; it is an explicit process that they laid out, to guide and constrain future laws that were not yet under consideration.

Originalists like to conjure up a single, almagamated mind of a ratifier, and suggest what result they hoped the law would have — e.g., for George Mason, they suggest that he hoped the 2nd amendment would enable all citizens to self-organize armed protection.

But these interpretations imagine that the final text is the encapsulation of these ratifiers’ intentions. It is not! The final text was a compromise. These compromises pushed off debates, in favor of vague language that would accommodate a wide range of interpretations.

That compromise is original.

The right to privacy that the Supreme Court described in Griswold vs Connecticut is original. That precedent holds that the right to privacy was originally made law when the states ratified the 1st, 4th, 9th and 14th amendments.

The right to privacy isn’t obvious — it’s a right that is not asserted unequivocally and explicitly. But don’t confuse that with its originality.

Determining what those rights are today is tricky, but when Scalia and others deride something like Griswold vs Connecticut’s “right to privacy” as “novel”, they are using 21st century assumptions and intentions to override the original meaning of the document.