We the People: Originalism and Judge Amy Coney Barrett

Judge Amy Coney Barrett, destined to be the next member of the U.S. Supreme Court, has characterized her approach to constitutional interpretation as a mixture of “originalism” and “textualism.” She has said that the Constitution should be interpreted as it was understood when it was ratified. She shares this approach with her mentor, the late Justice Antonin Scalia, a conservative icon.

The two doctrinal methods are frequently in conflict. That leaves Judge Barrett in a position to choose which method she would employ, in which cases, for various reasons. As an approach to constitutional interpretation, textualism is considerably limited and possesses little utility. Originalism, on the other hand, is well -heeled and boasts an impressive pedigree that includes American founders, despite its shortcomings.

Textualism, sometimes called strict constructionism, finds its roots in concerns about judicial discretion and the duty of courts to interpret the law as it is written, which is the essence of the judicial function. The central question for judges is how to determine the meaning of the law. Words cannot be overlooked, of course, for they are employed by the authors of a statute or constitutional provision to convey meaning. But words alone are rarely capable of resolving complex questions of statutory and constitutional law, often because they are too vague.

A lawsuit raising the question, for example, of the minimum age required to serve as president of the United States could be resolved by the language of Article 2, but how many questions of such simplicity are likely to arise? More often, judges are asked to interpret the meaning and scope of such terms as “due process,” “cruel and unusual punishment” and “unreasonable search and seizure,” which require a context beyond mere language.

A strict adherence to the text of a legal instrument – a statute or constitutional provision, for example – may defeat the larger purposes of a statute. America’s founders were familiar with the fact that an ancient Bolognian (Italy) law, which provided that “whoever drew blood in the streets should be punished with utmost severity,” did not apply to the surgeon’s life-saving treatment of a man who had fallen in the street from a fit. A literal application of the words would have led to the punishment of the doctor who made an incision in the patient and caused some spilling of blood in the street.

This appeal to the purposes or intentions of the lawmaker, which eventually became known in the 1980s as the doctrine of originalism, is neither new nor distinctively American.

Indeed, it plumbs the depths of Anglo-American legal history. It appears as early as the year 1386 when an English lawyer asserted his view of the statute at issue. One of the judges rebuked the lawyer: “Don’t tell us what it means. We wrote it.” At that time, judges were also legislators who served in Parliament.

That initial foray into originalism – seeking the meaning of a statute in the intentions of the lawmaker – established the essence of the judicial function: to say what the law is. Across the Atlantic, Chief Justice John Marshall, in 1803, in Marbury v. Madison, embellished the function in words that have become immortal: it is “emphatically the province and duty of the judiciary to say what the law is.”

The allure of originalism – the enforcement of the will of the people as manifested in the ratification of the Constitution – is compelling. Judges are expected to refrain from imposing values not found within the four corners of the Constitution. But resort to originalism depends on the adequacy of historical materials to illuminate the intentions of the framers of the Constitution. If, for example, the records of the Constitutional Convention were consumed by fire, originalism would be impossible.

James Madison’s reliable notes on the debates in the Constitutional Convention constitute the primary source of what was said there. They shed light on many issues that are relevant to our time, but not every issue that comes before the courts can be answered by resort to history. Yet, where the historical evidence is clear and decisive, the Supreme Court said, it is entitled to great weight and respect.

The implementation of originalism may not please its advocates, particularly those committed to expansive executive power. For example, a Supreme Court full of originalist justices would uphold the exclusive authority of Congress, not the president, to initiate war on behalf of the American people because the framers, to a man, agreed that the war power was vested solely and exclusively in Congress.

The same court would rule against the claim of executive privilege because the framers never discussed the asserted authority and, to the extent they did discuss governmental secrecy, they reserved to Congress, not the president, the power to determine what information might be withheld from the American people. The framers, moreover, made no provision for presidential immunity from arrest or conviction; therefore, an originalist court would be required to rule against a presidential assertion of such authority.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to this newspaper and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.