The problem with constitutional originalism

An Opinion

Timothy Kincaid

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.


January 5th, 2011

May I add a fourth?

That the men of the time could of had widely different reasons for passing the amendment. Or really any act of legislation. Which reasons does Scalia choose? And how would he know how one legislator thought about an issue or voted the way he did versus another?

Or why any of the legislators in the 28 states that initially voted to pass the amendment?

B John

January 5th, 2011

I think the concept of original intent works out just fine for interpreting the Constitution…when it is applied correctly, and not, as Scalia and others do, applied to make things say what they want them to say. (As you note evangelicals are especially guilty of this kind of “selective original-ism.”)

I have always believed that one does not go to the Constitution to “find” rights. I believe that’s the opposite of what the founders intended. Remember that Jefferson defined rights in the Declaration as “inalienable,” and went on to use a few as examples. Remember, he didn’t say, “here’s the list of rights.” He said, “among these are…”

The original intent of the founders was to form a union of States, set out a form of central government, and limit the rights/powers of government. See, we are supposed to go to the Constitution not to see if I have a right to do something, but to see if the government has the power or right to restrict that right. I don’t go to the Constitution to find a right to privacy. I believe that’s an inalienable right. I go to the Constitution to see what, if any, powers the government has to infringe on that right.

The Bill of Rights is what has caused some of this. Remember, it was a compromise document to gain the support of certain founders who wanted to be sure that specific rights were called out and protected. It was never meant to be a statement of all the rights a citizen has. It was an “among these.” Additionally, we have, unfortunately, had to pass amendments to codify rights of certain groups of people over the years when the government or the courts were unwilling to respect the boundaries of the original intent for government power.

Now I’m not a lawyer, judge, or supreme court justice. I just stayed at a Holiday Inn last night, but I had a good civics teacher in high school, and another good professor of American History in college, and that’s where I believe we go wrong. We’ve stood “original intent” on it’s head.


January 5th, 2011

Tim, Well written. You should submit that to the Times or the Post as an op ed piece.

Priya Lynn

January 5th, 2011

Timothy said “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.”.

It never fails to amaze and annoy me that Americans who are supposedly familiar with their constitution make statements like that. The ninth amendment specifically states that rights whare “simply not written there” are retained by the people. The U.S. constitution does not say you have a right to blow your nose, eat your supper, sleep, or wave your hands in the air, but the ninth amendment most certainly means you do have those rights under the U.S. constitution and many, many more unenumerated rights.


January 5th, 2011

I highly recommend the following for those who wish to learn more about the constitution:

America’s Constitution: A Biography


The Bill of Rights: Creation and Reconstruction

both by Akhil Reed Amar


January 5th, 2011

So, in gun-control cases we can expect Justice Scalia to support only the right to arm ourselves with muskets and join the militia?


January 5th, 2011

I’ve long felt that many of the loudest proponents of “originalism” are full of s–t, if you’ll excuse my French, Scalia chief among them.

As I read someone else point out recently, nowhere does the Constitution define a corporation as an entity equivalent to a citizen with personhood, but that somehow didn’t stop Scalia and the others from assigning them the rights of personhood in the Citizens United case.

Wyzdyx: I’d love to see someone bring a case to the Supreme Court arguing that the Second Amendment only applies to weapons of 18th century manufacture and see how Scalia and his originalism respond. :)

MIhangel apYrs

January 6th, 2011

B John (et al), the American legal system has as its foundation British common law, the basis of which is “anything not explicitly proscribed is legal”. A law has to be made to define or restrict, rather than viewing that only rights etc that are allowed by the State are valid.


January 6th, 2011

This reading of the constitution, it seems to me, is essentially religious. It is the same as reading the Bible in a literal manner which is a popular, if nonsensical, way to read it.

Wasn’t the point of the document to bring together a group of separate colonies into a strong union so that they could together stand up to Britain? Isn’t the point of it? To make a stronger centralized government out a a number of smaller, weaker ones?


January 6th, 2011

the italian supreme court ha declared for the second time that the current civil code forbidding same-sex marriage is constitutional.I do not understand how we became such a insular state, very far from the west european consensus on civil rights and bioethics.


January 6th, 2011

Our politician Gasparri,leader in the senate of the main govern party, has made a declaration that remembers me the worst of the american republican party(michelle bachmann,chaffetz etc)

J. Peron

January 6th, 2011

B.John is completely correct. The function of the constitution was to restrict state power, not define individual rights. The founders actually said that defining all rights would be impossible. You have a right to broccoli on Tuesdays, a right to wear red underwear on Saturday, as trivial examples. No one would be able to define rights.

The founders intended for rights to be interpreted very, very broadly and government power to be defined very narrowly. Advocates of big government (both Left and Right) don’t like that, they want big government and little people. The founders wanted big people and little government.

Prof. Randy Barnett has an essay on Scalia and his use of “originalism” to mean whatever Scalia wants. Scalia makes up excuses to simply avoid freedom he finds objectionable.

Eastside Jim

January 6th, 2011

There is two other area that define the Constitution…
1) As any educated Constitutional Scholar can tell you, there is a body of letters/speeches/documents that are referenced to help define and give depth to the Constitution. An example of this is the “Letter to Touro Synagogue” by George Washington explaining what was meant by the separation of church and state.
2) A body of precedents (prior Federal Court Decisions) that have been the main mechanism to adjust the understanding of the meaning of the Constitution as our society and government have evolved in the past 200+ years. These have not always been “right” as we see them now, but they do have the force of constitutional law when Federal decisions are being made.

Ben in Oakland

January 6th, 2011

As colbert stated, in order to be a true originalist, you owuld have to be a time travelling mind reader.


January 6th, 2011

Another problem with “originalism” is that it’s a myth for people like Scalia to pretend that the framers and ratifiers of the Constitution had one single, unified intent. Not only is this “intent” difficult for us to now ascertain due to the scarcity of records of state ratifying conventions, but the terms of the text held different meanings to different framers. They weren’t a monolithic brain-sharing entity.

Frankly, it is extremely audacious for a man wielding the power that Scalia has, who lives in the 21st century, to claim that the framers had one intent and that he knows what it was.

Constitutional historian Leonard Levy discusses originalism in great depth in his book Original Intent and the Framer’s Constitution.


January 6th, 2011

Our defeat or success will depend on how many SCOTUSes share or reject Scalia’s interpretation.


January 6th, 2011

With regard to the right to privacy, do remember the 9th amendment:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It seems that amendment is often forgotten about. Just because a right is not explicitly listed in the Constitution, does not mean that we lack it. You have to remember what kind of government the founders were trying to set up, and who their influences were.

Personal autonomy and privacy are simply inherent in the kind of government the founders were trying to establish. It would be absurd to construe the constitution as denying the right to privacy.

Priya Lynn

January 6th, 2011

That’s what I said esurience.

Rob Lll

January 6th, 2011


Thanks for this eloquent and thoughtful post. Some great, astute comments in the thread here as well.

The men who framed and ratified the U.S. Constitution and subsequent amendments were far from perfect. But, to their credit, they *knew* this. They carefully chose broad language understanding they couldn’t possibly foresee every social or historical contingency that came down the pike. They knew there were things they didn’t or couldn’t know.

In this respect, they demonstrated a far greater degree of wisdom, self-awareness, and humility than Antonin Scalia will ever attain.

Lady Gaga

January 6th, 2011


Remember to support GetEqual TODAY!!!!!

Give more so we can continue to win.

John B F

January 6th, 2011

I second (or third) that you submit this great piece to the NY Times. A breath of fresh air.


January 6th, 2011

Rationalizing (one’s prior, perhaps tacit) beliefs (and emotions) too often outshoves “reasoning.” A meta- or para-issue here is what are Scalia’s root reasons, prior pulsions, true motivations for his often-elliptical stands? Probably nothing more than what I label a (or the) “toxic strand” discernable here and there in “conservative” thought and maculating it. The syndrome is recently excellently illuminated by social psychologists in that landmark meta-analysis, “Political Conservatism as Motivated Social Cognition.” [But does Scalia even KNOW, what ultimately propels him?…] “Infovoyeur”


January 7th, 2011

Just who gets to decide what the original intent of the writers of the Constitution? My understanding has always been that the intent was for the Constitution to be an evolving document, largely due to the fact that they made provision for amending it. I think they understood that this would be an evolving country and an evolving society and that the Constitution was not to be taken as written in stone. Nor do I believe they meant for the Constitution to be interpretable only by highly specialized lawyers.

Donny D.

January 8th, 2011

I see an inconsistency in the position of the anti-Originalists here. You can claim that it’s impossible to know what the framers and ratifiers of the Constitution intended, but as Eastside Jim said, there is a slew of documentation from those times that allows modern people to get a handle on what folks were thinking back then.

The advantage we have in terms of recent legislation and initiatives is that courts can get spoken testimony and access to current forms of media. In this way, the original intent of campaigners and voters for California’s Proposition 8 was determined by Judge Walker in his decision against it.

The inconsistency that I is see is that if you are against originalism (by which I mean legitimate originalism, not Scalia’s blatant misuse of history, law and logic), then you can’t also accept Judge Walker’s use of Proposition 8 campaign materials to determine that it was only possible to vote for the initiative out of prejudice.

Priya Lynn

January 8th, 2011

Donny said “You can claim that it’s impossible to know what the framers and ratifiers of the Constitution intended, but as Eastside Jim said, there is a slew of documentation from those times that allows modern people to get a handle on what folks were thinking back then.”.

All that documentation may help explain some of what the U.S. constitution intended but I find it highly unlikely that it will explain it all.

Donny said “The inconsistency that I is see is that if you are against originalism (by which I mean legitimate originalism, not Scalia’s blatant misuse of history, law and logic), then you can’t also accept Judge Walker’s use of Proposition 8 campaign materials to determine that it was only possible to vote for the initiative out of prejudice.”.

That’s not a contradiction at all. It all has to be considered on a case by case basis. In some cases the external documentation may explain what people were thinking, in others it may not. The existence of additional documentation does not automatically mean all is clear every time.

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