Recently, I had the pleasure of hosting our monthly episode of So a Neighbor Asked, Mountain States’ webinar that answers your questions to help you understand the Constitution, the law, and the principles of liberty. August’s episode asked and answered, “What is Originalism?”
With MSLF attorneys Kaitlyn Schiraldi and David McDonald, joined by the Assistant Solicitor General of Tennessee Brandon James Smith, I learned a tremendous deal on a topic with which I thought I already was familiar. I’d like to share with you some of the things I learned!
Law and Shakespeare
Each of the panelists essentially understood originalism to be the same thing—the theory that the definitions of the words and phrases in the Constitution were fixed at the time those words were written and ratified. David had a rather humorous but also seriously accurate phrasing. “In literally every context other than constitutional law, originalism is just called reading.” I laughed at the line, but he had a really interesting comparison.
High schools teach (or at least some still do) William Shakespeare’s plays from his perspective, not ours. Take this line from The Tempest, Act III, Scene 2:
“He has brave utensils, for he calls them,”
An unlearned reader might question why Shakespeare is referencing forks and spoons as courageous and bold. Yet, with proper context of the Bard’s time and the definitions he would have known, we’d understand that “brave” can also mean “fine” or “splendid.” Likewise, “utensils” can also refer to a host of household goods or furnishings. Simply put “brave utensils” means something like “a lovely and exquisite home.” Shakespeare is replete with words we use today but which have dramatically different meanings.
We do not let students read Julius Caesar or Macbeth with their limited contemporary vocabulary. Literature teachers, if they take the subject matter seriously, strain to educate students on the proper history, context, and common definitions of 16th century English to help their pupils truly appreciate the genius that is William Shakespeare.
Why, then, do we not do the same for the supreme law of the land, for the geniuses that were the Framers?
Interpretations with Agendas
I suspect it has something to do with the notion it may be politically advantageous not to. This was a point Kaitlyn made when she gave a brief description of methods other than originalism used to interpret the Constitution. From the Progressive Era onward to more or less today, judges took on the role of social correctors, entrusting themselves with the power to right perceived wrongs. They did so by reinterpreting the plain text of the national charter to mean whatever they deemed necessary in order to accomplish their version of what we now call social justice. The idea of a “living Constitution” where the meanings of words change with the flux of society was appealing to a lot of activist movements.
Brandon commented this was a mistake, not only because it abandoned the law but because it exposed states to an overly aggressive federal government. Not only did the 20th century’s lack of originalism abuse provisions such as the Commerce Clause, but it upset the fundamental structure of the Constitution and the federalist balance of powers between state and national governments. When the Supreme Court reimagined what Congress was permitted to spend money on, expanding its role to do almost anything, it enabled Congress to bribe the states to surrender their basic sovereignty. Non-originalist interpretations don’t just permit specific instances of bad jurisprudence but create complete mutations to the legal genetics of the country.
An Originalist Future
But, as the panel discussed the Supreme Court’s most recent term, they expressed an amount of hope. In cases like New York State Rifle & Pistol Association v. Bruenand Kennedy v. Bremerton School District, both of which MSLF filed amicus briefs, the Court appeared to adopt a deliberate mentality of understanding the Second and First Amendments, respectively, as they were understood by the those who ratified them in 1791. No surprise, as our Founding Fathers were revolutionaries for liberty, the renewed interpretation of the Supreme Court in 2022 enables citizens to exercise their natural rights more freely.
Kaitlyn had a great insight that, for all of her judicial flaws, even Ketanji Brown Jackson (the newest member of the Court) acknowledges that the meaning of the Constitution is fixed. Whether she comes to similar conclusions as arch-originalist Clarence Thomas, however, is a different question, but at least she agrees with the method. Or, at least, that’s what she implied at her confirmation hearing. I have my doubts.
The Constitution vs. Precedent
There was one very clever question from the audience and one I pitched to the panel. Essentially, it posed the hypothetical of a 100-year-long precedent of the Supreme Court that was widely accepted, relied upon by the masses of the country and lawyers alike, and created stable and settled law. What if, the question asked, a well-respected scholar or many scholars discovered that the Supreme Court’s century-long interpretation of the Constitution’s words was fundamentally flawed, inaccurate, and mistaken? Should the Court abandon the precedent, which has been the accepted norm for so long, or should it keep it though it is clearly mistaken?
That’s not an unreasonable question. The whole concept of stare decisis, the principle that underpins respecting precedent, more or less compels judges to weigh the potential mistakes in a precedent with its practical effect on society. In a purely common law nation like England, that can be a difficult task.
The panel had none of it. The United States is not a purely common law nation. Our Founding Fathers deliberately encoded the supreme law in words with ink and parchment. If the precedent clearly misunderstood or ignored those written words and their plain meaning as informed by history, judges have an obligation to revisit and potentially overturn it, whatever its impact on society. As David said, “If the precedent is wrong the precedent is wrong the precedent is wrong. The Constitution is the law of the land, not nine individuals in black robes.”
Kaitlyn, hitting on her theme of quoting history, repeated Justice William O. Douglas, who said, “It is the Constitution which a justice swore to support and defend, not the gloss which his predecessors may have put on it.”
Brandon followed with a sort of chastisement of those who would uphold precedent over the Constitution. If some folks don’t like what the plain meaning of the Constitution says, then surprise! The Constitution has Article V, the means to actually change the words of the document to what we want. “But that means having to engage in thorough democratic debate, and it’s so much easier to just get five judges to agree with you to make change happen.”
So, what is originalism?
I was thrilled to be a part of such a helpful and invigorating discussion. That said, I’m no lawyer. After an hour of in-depth conversation, I asked those capable attorneys to give me a quick and dirty definition of originalism. Kaitlyn came away the winner.
Originalism: The words mean what they mean when they were written.
It really is just reading after all.