The problem with constitutional originalism
January 5th, 2011
I am not a constitutional scholar. I’m not even an attorney. But I am a fairly logical person who has great respect for the intents and purposes of the US Constitution and who is troubled by efforts on both the right and the left to read into – or extract out of – the language that protects my status as a citizen.
It is my – perhaps naive – belief that the constitution differs from law in that it sets forth principles, ideals, that apply broadly and which are drafted in language that seeks to be applicable to unanticipated specific instances. It speaks to a people who communicate using computers, travel using airplanes, and associate by means of facebook as easily as it did to those who road their horse to the village pub to debate the issues of the day.
I am, I admit, uncomfortable with Supreme Court rulings that seem to create out of whole-cloth rights, privileges, or entitlements that exist outside of the document. While I treasure a right to privacy, I am perplexed that the innumerated rights to privacy that are included in the Bill of Rights have given birth to a generic right that simply is not written there. I think that the courts have in some instances erred in finding not what is written, but what they wish were written.
And in that concern, I am often accompanied by conservatives who, for example, find that the right to privacy limits their ability to restrict the freedoms of their neighbors. But I think that some conservatives, especially those most revered by the hard-core right, are even more guilty in their distortion of the Constitution. Rather than discover rights that are not clearly articulated, they seek to overlook or dismiss those which are clearly in black and white.
Constitutional Originalism is the name they give to this erasing of right, though naturally they do not articulated it as such. Rather it is phrased as though those seeking original intent are preserving the language of the Constitution. They argue that a written constitution is limited to what was meant by those who drafted and ratified it and interpretation should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.
But that is neither the application they employ nor the intent of their efforts. Take, for example, this conversation between UC Hasting professor Calvin Massey and Supreme Court Justice Anonin Scalia:
Massey: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Scalia: Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.
To understand the context of this appeal to originalism, look at the language of the 14th Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The amendment goes on with four additional clauses which address representative government, but this is the heart of the issue, the language which Scalia and those who share his views wish to remove from the protections granted by the Constitution.
And the language which they seek to wish away, specifically, is “any person.” Scalia argues that “any person” as understood by members of the the 39th Congress in 1868 did not include either women or gay people (or anyone else to whom we could apply it) and so thus these classes of persons are not protected by the amendment.
But to do so, Scalia has to make three broad assumptions:
1. That the Constitution is not a document of guiding principles, but a law text which applies only to the specific intentions designed to address specific issues.
Depending on how literal this is taken, you can run into some rather tricky interpretations. By a strict adherence to the original intent, references to “states” would only apply to the original thirteen, the regulation of commerce among the several states would be limited to goods and services in existence in the 1780’s, and citizens would be white male landholders. But, in a manner similar to scriptural literalism, originalism picks and chooses that which is bound by principle and that which is bound by “intent.”
2. That the drafters of the 14th Amendment were careless.
The term “any person” seems to be rather broad. Scalia would have us believe that the intent of this phrase is “any heterosexual male person” and that the drafters simply assumed that no one would read “any” to be more broad than they intended.
But in the second clause of the 14th Amendment, these same drafters were capable of the much more specific phrase “any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States.” One must either believe that they were forgetful, downright stupid, or that it was not entirely by accident that the phrase “any person” is not termed “any male person.”
3. That the men who wrote and voted for the 14th Amendment could not espouse principles grander than they personally could aspire.
History, especially the founding of our nation, is full of examples of men whose beliefs exceeded their abilities. Washington, for example, was troubled by slavery, yet owned slaves for many years. His slaveholder status is not an indication that he revered the institution, but that he was limited and flawed, unable to live to the standards that his conscience told him were right.
And while Scalia would pretend that the notion of women’s rights was foreign to the thinking of congressmen in 1868, the battle for women’s rights was alive and well at the time. In 1848, Gerrit Smith ran for president as the Liberty Party’s candidate on a suffrage platform. And indeed, it was from among the suffrage leaders that much of the support for African-American rights was championed.
It requires a willful disregard of history to declare that “I don’t think anybody would have thought that equal protection applied to sex discrimination.” That was what Elizabeth Cady Stanton and Frederick Douglass and Susan B. Anthony were fighting for in that very year, one of the principle years of suffrage activism. They rightly saw the battle for equal rights to be the battle for all equal rights.
That suffrage was not achieved for another half century is a sad reflection on the face of humanity’s inability to let go of privilege. But I think it at least likely that in selecting “any person” the Congress was laying out principles to which it could not yet live, but which it knew were right.
As for sexual orientation, the matter is less clear. Few, if any, at the time recognized orientation as such. But surely as important to “what did they intend” would be “what would they have intended.” If those who protected “any person” were aware of the intrinsic and immutable nature of sexual orientation, would they have found that gay persons can and should be deprived of life, liberty, or property, without due process of law? Would they have carved out an exception and stated that gay people should indeed be denied the equal protection of the laws?
Scalia would say that this is immaterial, that they didn’t intend it at the time and the principles they applied in laying down such protections should be ignored. That they addressed the rights of the often despised, uneducated, recently-enslaved negro says nothing to their attitude towards other minorities and the decency that underlies this provision has no bearing on its interpretation and all that matters is that the writers of the language were not specifically thinking at that moment of gay men and women.
To Scalia’s thinking, the broad language of the constitution should be thought not in terms of principle, not in terms of even the words selected, but in terms of what Scalia’s stereotype of the mindset of a mid-eighteenth century congressman might be.
Scalia simply wishes to find in the Constitution that, and only that, which confirms his own biases and sense of entitlement. Originalism is just a tool for finding it there.