America Is Captive to One Ridiculous Legal Theory That Dictates Our Lives. Here’s What We Can Do.
This is part of How Originalism Ate the Law, a Slate series about the legal theory that ruined everything.
America is being led astray by a small handful of folks who are drunk-driving on originalism—and not in a funny Marx Brothers, spin-around-in-circles-and-all-fall-down sort of way. No, it’s in a children-murdered-in-their-classrooms, women-hemorrhaging-in-parking-lots, environmental-and-health-regulations-destroyed kind of way. And that’s because the whole nation is currently lashed to a small, stupid, perpetually changing theory of legal interpretation variously known as “originalism,” or “textualism,” or “original public meaning,” or “history and tradition.” A theory that is—unless you were born in the 1990s—younger than you are.
Whatever the current flavor, originalism and its ever-growing progeny hold that judges and justices should ignore every interpretive methodology judges once used to understand a legal text in favor of free-floating feelings about history: What do we think the drafters of the text intended? What do we wish they had intended? What did the readers of contemporaneous public documents understand that text to mean? What did random dictionaries of the time reflect about … words? What—as cited by a lawyer for former President Donald Trump in arguing recently that presidents can occasionally order political assassinations without facing criminal consequences—did Benjamin Franklin announce at the Constitutional Convention? And also, how did the crowd react?
As John Sauer, that Trump lawyer, put it in a court filing: “The Framers viewed the prosecution of the Chief Executive as a radical innovation to be treated with great caution. Benjamin Franklin stated at the Constitutional Convention: ‘History furnishes one example of a first Magistrate being formally brought to public Justice. Everybody cried out ag[ain]st this as unconstitutional.’ ” He cited the same piece of historical proof at the argument: “I would quote from what Benjamin Franklin said at the Constitutional Convention, which I think reflects best the Founders’ original understanding and intent here, which is, at the Constitutional Convention.” Call it, perhaps, “Standing O Originalism.” History demands absolute presidential immunity. Why? Because history shows that Ben Franklin said a thing and the crowd went wild.
Here is the thing: Most Americans are well aware that the MAGA supermajority on the current Supreme Court is drunk on something. They know that the result in the Dobbs decision that overturned Roe v. Wade was rooted in a view of constitutional history that came from a time in which women had no vote and were property, to boot. They know that the gun violence epidemic is unfixable because the Supreme Court can’t or won’t discern the difference between arming the general populace with “smoothbore, muzzle-loaded, and powder-and-ramrod muskets” and assault weapons. Most Americans are by now aware that, as professor Melissa Murray has put it, “History is messy. It’s not straightforward or fair. It’s not made by most.” They know that a commitment to living in the 21st century while in legal thrall to the 18th is bizarre on its best days and lethal on its worst days. Indeed, were they allowed to vote on it, most Americans would wholeheartedly reject a theory of the Constitution that unravels two centuries of progress and understanding. But originalism is the invisible force that allows a handful of unaccountable jurists to unravel both progress and understanding along with the wants of the majority.
Most Americans also know that holding us hostage to the dictates of the 18th century is an antidemocratic checkmate. They understand intuitively that while public opinion favors reproductive freedom and sensible gun regulations and the right to vote, the MAGA faction of the Supreme Court has found a doctrinal party trick to ensure that nobody can have any of those things because they weren’t protected at the founding or at the time of the Reconstruction Amendments, or whichever point of history the high court deems relevant (it varies). In the single most horrific case in the horrific term at the Supreme Court, gun rights zealots argued that a man who had lost the right to possess a firearm as the result of having beat up his girlfriend should be allowed to possess that firearm—because historically, domestic abusers were not disarmed. In October 2022, a federal judge in West Virginia ruled that the federal ban on possessing a gun with its serial number removed was unconstitutional because, as the judge wrote ruefully, “A firearm without a serial number in 1791 was certainly not considered dangerous or unusual compared to other firearms because serial numbers were not required or even commonly used at that time.” This is the world we are living in. It is the world we are acceding to inhabit.
Shackling one’s understanding of the law to the drunken methodology of “originalism” doesn’t simply ignore the technological realities of modern life, like serial numbers, and bump stocks, and the vagaries of online content moderation. It also turns every judge and lawyer into a part-time Revolutionary War reenactor and part-time recreational archivist (whose bare-bones understanding of history tends to become immediately obvious). As the Supreme Court burns down decades of doctrinal progress and a century of modern government, it leaves only skid marks in its wake. What is a judge to do? She must make her best guesses about whose history matters and wait to see what the history oracles will permit. No system of law that relies on stability, predictability, and consistency can function when “history” means merely whatever five amateur historians decide it means at any given moment. And the test itself keeps morphing: “original intent” to “original public meaning” to “text and history” to “history and tradition.” Now “tradition” is under fire from the right because it might modernize the law a tad too much, so we’re due for another round of refinement. Having leapt seamlessly from “text and meaning” to “history and tradition” one can only wonder what’s next. “Fish and chips” and then on to “Salt-N-Pepa”? The test for what counts as eternal and immutable history just keeps on evolving.
Americans are dying because of this bad history, yes. But they are also dying because originalism has developed such a profound stranglehold over the modern courts that even liberals are attempting to win this uncertain game of spinning the historical roulette wheel to make an argument. In Trump v. Anderson—the recent Supreme Court argument about the state of Colorado’s efforts to remove the former president from the ballot due to his participation in an insurrection—regiments, battalions, and armies of historians came together to debunk the president’s fatuous reading of the 14th Amendment’s disqualification clause. “We will win at history,” they told themselves, “and thus we will win the argument.”
They won the history—and still lost the argument. Because not only is originalism sufficiently malleable and inchoate that it allows for almost any cherry-picked text and any wisp of history to be determinative, but also because, as Justice Elena Kagan famously quipped at her confirmation hearings in 2010, “in a sense, we are all originalists now.” (She has since repudiated that comment.) What Kagan came to understand in rejecting originalism was that the very agreement that all legal interpretation is reduced to a Sherlock-Holmesian effort at pecking through history is a sucker’s game. Because the kingmakers at the Federalist Society pick the judges. And then the judges pick the history. Originalism has morphed from a methodology in which judges strive to locate what history demands into a methodology in which the originalists decide which history counts.
This all happened in the course of a short very few decades. It happened because an entire Potemkin village of originalist academics, originalist law-review articles, originalist theories—chiefly funded by very contemporary oligarchs—was built up to present it as a reversion to the way things always were, as opposed to a revanchist attack on modernity itself; an attack on the common law itself and an assault on the idea of a pluralist, expansive vision of liberty. Originalism is a modern-day lie about history that presents itself as historical. And originalism, marketed in the 1980s and ’90s as, at bottom, a theory of judicial restraint, has now become an uncontrollable and unpredictable Tasmanian devil that has gobbled up decades of precedent, the regulatory state we had built to ensure that we have clean air and drinkable water, and the line between church and state. Perhaps most viciously, originalism has chewed up and spit out the 13th, 14th, and 15th Amendments—the very history that was committed to text in order to protect the idea of a pluralist, generous, and expansive vision of liberty as the country finally ended the atrocity that was slavery. As Justice Ketanji Brown Jackson has pointed out on more than one occasion, the use of history itself to erase history is now a central part of the originalist project.
It is perhaps no surprise that so many of us feel trapped under the dead hand of the Framers in much the same way we feel trapped under the dead hand of an unaccountable and monarchic Supreme Court. The latter has almost singlehandedly built the former. In the most theological sense, many Americans simply believe that if the Church of the Constitution that stands at 1 First St. says that this is how we do law—and further insists that this is how law was always done—then that church must be correct. But that, too, is an ahistorical fabrication of modern vintage. The choice to be paralyzed by both this institution and this methodology is very much a collective choice. The justices who practice originalism are no more oracular figures who can commune with the drafters of sacred text than they are professional historians. The lie, it turns out, comes dressed up in another lie.
We created this package on originalism not simply to lay out the trail of how an entire nation became captive to the idea that modern freedom, dignity, and equality remain what a small group of white male slaveholders envisioned for themselves more than two centuries ago.
(To be sure, as professor Jack Balkin reminded us, no other constitutional democracy binds itself to such a cramped notion.) We also created this package to probe why we fell for it; why liberals played along; why we still believe that this is a good-faith debate over history as opposed to a bad-faith abuse of money and politics and institutional power. More than this: We created this package—comprising print pieces by experts reflecting on the damage originalism has done and the violence it will continue to inflict, and a podcast series sketching out this story of originalism embarrassing itself into intellectual irrelevance even as it is ascendant in the courts—as a marker of how it started and how it’s going.
But above all else, we created this to highlight the fact that it need not be forever thus. Brilliant thinkers are showing us the map of how we got here. Thoughtful litigators and academics are working out how to get out. Brave judges are using their opinions to decry a methodology that makes it impossible for them to do their own jobs. And they are lighting the road to something that will serve more than just a few rich white guys in 2024; the exact same constituency that is (imagine!) best served by the men they revere.
It is a choice to believe that you are not entitled to have an opinion on how the courts interpret the law. It is a choice to believe that judicial interpretation rooted in free-floating dust motes of history is so sophisticated an inquiry that it cannot be questioned. It is a choice to believe that American judges have been guided exclusively by originalism from the founding. And it is a choice to believe that we don’t, all of us, deserve a system of justice that has evolved in ways that keep us safe, and healthy, and democratically vibrant, and that also strives to make us equal, and allows us all to live in dignity. This was the year in which originalism, with its promise of judicial humility and scientific certainty, finally ate itself at the court and ate the law of the land in the process. And it will eat us too, unless we choose to fight back.
Here’s how we do that.
