Law

Originalists Put Politics Over Principle

The Republican litmus test for a court nominee has little to do with reverence for the Constitution.

Open to interpretation.

Photographer: Chip Somodevilla/Getty Images

President Donald Trump’s Supreme Court nominee, to be announced on Tuesday, is likely to be some kind of “originalist.” For many conservatives, that’s terrific news.

Improbably, originalism has become a litmus test, a simple way of distinguishing judges from politicians, using the Constitution to impose their values on the rest of us. But what is originalism?

It is not simply “textualism,” which means that judges should be faithful to the text of the Constitution. Almost everyone is a textualist. The real question is how to decide what the text means. That’s when originalism gets interesting.

The Constitution forbids states from denying people the “equal protection of the laws.” It prohibits “unreasonable searches and seizures.” It bans government from taking private property “without just compensation.” It gives “the executive power” to the president.

For modern readers, these are abstract words, filled with ambiguity. If states require whites and African Americans to go to separate schools, do they deny people “the equal protection of the laws”? If the National Security Agency monitors your use of social media, has it engaged in an unreasonable search?

Do expensive environmental regulations “take” private property? Does “the executive power” include the authority to ban any and all foreigners from entering the United States?

Originalists insist that the best way to answer such questions is to ask: What was the original meaning of constitutional provisions when they were ratified? Call this the Time Machine approach to constitutional interpretation.

Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law, and scholars have defended their approach with great care and subtlety.

But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about.

For example, originalism could easily lead to the following conclusions:

  1. States can ban the purchase and sale of contraceptives.
  1. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.
  1. The federal government can discriminate against women -- for example, by banning them from serving in high-level positions in the U.S. government.
  1. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.
  1. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.
  1. States can establish Christianity as their official religion.
  1. Important provisions of national environmental laws, including the Endangered Species Act and the Clean Water Act, are invalid.

The president should not nominate, and the Senate should not confirm, anyone who subscribes to these seven propositions -- and originalists have to do real work to explain why they reject them.

Some originalists respect past precedent; they include Justice Antonin Scalia, who once described himself as a “faint-hearted” originalist. When the Supreme Court has long interpreted the Constitution in a certain way, such originalists will follow that interpretation, even if they disagree with it.

But many originalists reject Scalia’s faint-heartedness. It’s fair to ask any nominee whether he or she would give priority to past Supreme Court decisions or instead to the original meaning as of (say) 1791.

To avoid intolerable results, and as the best approach to interpretation, some originalists read constitutional provisions as setting out broad principles whose meaning on specific questions changes over time. To be consistent, originalists who take this path have to argue that when those provisions were originally ratified, they were understood broadly rather than narrowly.

As a matter of history, maybe that’s right. Maybe it’s not. But if it is right, originalism stops being so distinctive. It starts to turn into a form of living constitutionalism.

The larger irony is that while there are careful, reasonable and nonpolitical arguments for certain forms of originalism, the views of many self-proclaimed originalists line up, not with those of We the People in 1789, but with those of the right-wing of the Republican Party in 2017. Whether we’re speaking of campaign-finance laws, commercial advertising, gun rights, affirmative action, gay rights, property rights or abortion, originalism has failed to prevent judges from voting in accordance with their political predilections.

Any president deserves a degree of deference with respect to Supreme Court nominees, and Trump’s model, Justice Scalia, was a genuinely great judge. But part of his greatness consisted in his willingness, on important occasions, to abandon originalism -- and to vote in ways that defied easy ideological categorization.

Too often, today’s originalists read the Constitution to fit with the latest Republican Party platform, while solemnly proclaiming their reverence for the founding period and their own political neutrality. That’s shameful -- and it’s a sham.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Cass R Sunstein at csunstein1@bloomberg.net

    To contact the editor responsible for this story:
    Katy Roberts at kroberts29@bloomberg.net

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