Originalism/textualism see Constitution as a dead vs. living document
At the start of the Trump presidency, the Republicans changed the Senate rules to allow Supreme Court nominees to be confirmed with 51 votes, rather than 60-vote threshold traditionally need to advance high court nominees over objections. With a 53-47 GOP majority, Barrett’s confirmation was almost a certainty from the getgo. Nobody’s mind was changed as Judge Barrett adeptly declined to disclose her view on key issues that could arise on the court docket such as abortion, Obamacare, voter suppression, the peaceful transfer of power, and whether the president can pardon himself.
While we learned nothing about Barrett views on major issues she did shed light on her basic jurisprudential ideology, which relies on “originalism” for interpreting the Constitution and “textualism” for deciphering statutes. Here in the Judge’s own words is her attempt to simply define the meaning of the legal concept of originalism: “In English that means that I interpret the Constitution as a law,” she said, “and 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 policy view into it.”
Barrett further defined textualism, or the way she would interpret statutes, “Similarly to what I just said about originalism. For textualism,” she said, “the judge approaches the text as it was written, with the meaning it had at the time and doesn’t infuse her own meaning into it.”
Originalism is an approach to interpreting the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding “at the time it was adopted”. Originalists care about what people understood words to mean at the time the Constitution was enacted — what the “original intent” was of the founders.
For some originalists, this means the intent of those who drafted and ratified the Constitution and for others the interpretations must be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. In this regard, American economist, Thomas Sowell, points out that the meaning of phrases like “due process” and “freedom of the press” had long-standing meaning in English law, even before they were put in the Constitution. Thus determining their meaning at the time often requires studying among competing dictionaries (some would argue cherrypicking among competing definitions) and other writings of the time to determine their true meaning.
In this approach, the Constitution is not viewed as living document that articulates principles that must be adapted to changing historical and cultural circumstances. As the late Antonin Scalia, the Supreme Court justice most identified with originalism, said in 2012 “The Constitution is a static being.” In fact, he also said “The Constitution I apply is not living but dead, or as I put it, ‘enduring.”’
For Scalia and other originalists, determining the original intent requires, “Immersing oneself the political and intellectual atmosphere of the time — somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudice and loyalties that are not those of our day.”
Progressives tend to view the Constitution as a living document that should be interpreted not necessarily as the drafters saw things in 1787, but in the context of the complexities of contemporary life.
What both originalists and textualists do not consider is supporting or supplemental sources, such as modern social policy or legislative history when interpreting the Constitution or statutes.
Progressives, on the other hand, tend to view the Constitution as a living document that should be interpreted not necessarily as the drafters saw things in 1787, but in the context of the complexities of contemporary life. They argue that originalists need to realize that the world has moved forward in the last 250 years from a time that only white men with land could vote. They contend that the Constitution was meant to be an elastic document that changed with the needs of the country. That’s why it has amendments.
Progressives point out that some originalists have refused to affirm the Supreme Court’s decision in Brown v. Board of Education. The logic goes: It is clear that the drafters of the 14th Amendment in the 1860s did not intend for the Equal Protection Clause to require the desegregation of public facilities like schools. So, the court’s unanimous decision in Brown represents judicial overreach. Further, they note that stringent originalism would call in question the constitutionality of certain bedrocks of our current political, social, economic life such as the provision of paper money and Social Security.
For me, the rubber hits the road regarding originalism with regard to how many of them interpret the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right to keep and bear Arms shall not be infringed.”
How does anyone concerned about “the political and intellectual atmosphere of the times” justify the right for a mentally unbalanced teenager to have an AR15 assault rife? I guess an originalist could make a circuitous case for a constitutional right to possess a musket, but an automatic weapon surely goes well beyond the bounds of original intent as expressed in the Second Amendment. Instead of moaning about liberal judicial activism, conservatives should apply the doctrine of original intent to the Second Amendment and be advocates for desperately needed sensible gun safety legislation.
Irwin Stoolmacher is the President of the Stoolmacher Consulting Group, a fundraising and strategic planning firm that works with nonprofits agencies that serve the truly needy among us.