Editor’s Note: This week, we are working with our friends at Slate to talk about originalism: what it is, why it’s terrible and stupid, and what can be done about it before Republican judges use it to bury democracy under a mountain of half-baked Wikipedia citations. Here is Jay Willis on the most pernicious lie of originalism: that the only people capable of interpreting the Constitution are credentialed experts who, in a wild coincidence, happen to be champions of the conservative legal movement.
As a branding exercise, originalism has been a wild success. The concept, once fodder for obscure law review articles no one read, went mainstream in the 1980s, after the Supreme Court dealt the conservative legal movement a series of high-profile losses on issues like affirmative action and abortion rights. In 1985 Edwin Meese III, then the attorney general under President Ronald Reagan, outlined his grand vision of a “jurisprudence of original intention” in a speech before the American Bar Association. “Those who framed the Constitution chose their words carefully,” he said. “The language they chose meant something. It is incumbent upon the court to determine what that meaning was.”
The idea quickly captured hearts and minds on the right by appealing at once to their obedience to authority, their distaste for the Warren court’s “activist” pro–civil rights decisions, and their nostalgia for bygone eras during which, coincidentally, civil rights did not really exist for people who were not white men. Today a loudly professed passion for originalism is table stakes for any ambitious conservative lawyer who hopes to warm a seat on the bench, and among members of the court’s six-justice conservative supermajority, it is basically the only acceptable method to divine the Constitution’s meaning.
Perhaps the most consistent features of originalist decisions are their density and verbosity: To determine whether a purported right is sufficiently “deeply rooted” in “history and tradition,” justices and judges conduct meandering surveys of English common law, quote the dusty treatises of mononymic philosophers, and parse the hastily scribbled notes of founding-era legislators who wrote the letter S, for some godforsaken reason, as F. The majority opinion in Dobbs v. Jackson Women’s Health Organization, in which the court voted to take away a fundamental right it had recognized five decades earlier, spans 79 pages, not including two appendixes of state-level antichoice laws. New York State Rifle & Pistol Association v. Bruen, in which the court invented an individual right to gun possession some two centuries after the Second Amendment’s passage, includes lengthy analyses of the 1328 Statute of Northampton, the roots of King Henry VIII’s skepticism of 16th-century handguns, and the relevance (?) to modern gun safety laws of the “launcegay,” a Chaucer-era weapon akin to a 10-to-12-foot lance.
As a result, originalism’s ascendance has made the Constitution feel even less accessible than it was before, which was “not very.” Supreme Court opinions are famously laden with intimidating jargon, inscrutable shorthand, and italicized case names, all deployed in an effort to decipher a 250-year-old collection of aspirational vagaries and morally repugnant compromises. Understanding the Constitution now also requires familiarity with, to take an example from Dobbs, 19th-century translations of 13th-century treatises that were originally written in Latin. By design, originalism makes normal people—by which I mean those who had the good sense not to blow a quarter of a million dollars on law school—feel like insecure, conspicuous interlopers in a conversation that is plainly Not for Them.
This gatekeeping effect is, I think, the most pernicious lie of originalism because treating constitutional interpretation as the sole domain of judges running haphazard Wikipedia searches cuts everyone else out of the process. This is wrong. The Constitution was written not to be understood by think-tank gremlins writing dueling amicus briefs, or Supreme Court justices with the unreviewable authority to cherry-pick their preferred narrative. The Constitution was written for the people whose rights its language protects and who suffer the consequences if a judge decides otherwise. You simply do not need a medieval studies Ph.D. to be able to read what the law says and form a valid opinion about what it means. And you are not wrong to be skeptical of unelected, unaccountable judges who insist that the record, thin and ambiguous and contradictory though it may be, nonetheless compels but one objectively correct result.
Read the rest at Slate.
