The Blind Spot of Originalism
It’s easy to mistake personal preferences and judgment as “what the Constitution really means”.
So they finally did it. Last night, they swore in Amy Coney Barrett in time to rule on the election should the results be so close and contested that they reach the Supreme Court. Considering that at least 3 of the judges were “rewarded” with a seat on the bench for their work in Bush v Gore in 2000, I think they should all recuse themselves should a court case ever make it up there. That connection makes Roberts, Kavanaugh, and Barrett nothing more than political appointees far from the impartial jurists that they claim to be.
They all claim to be originalists, too. They claim to know or to rely upon what The Founding Fathers were thinking when the Constitution was written. They claim to know what the Constitution really means. The problem with this assumption is that no matter how hard you try to divine the wisdom of The Founding Fathers, there will always be a persistent tug from your own preferences and your own judgment. It is often assumed that a conservative view of the Constitution is the right view. I believe that this is a matter of controversy. Who says that an Originalist interpretation of the Constitution must always lead to outcomes that are popular with conservatives?
In a 1998 op-ed, Originalism For Liberals, Case R. Sunstein writes a “Book Review of The Bill of Rights by Akhil Reed Amar & For the People by Akhil Reed Amar and Alan Hirsch”, a review of two books. There are several concepts in this review that I’d like to call to the attention of conservatives who think their search bubble tells them what the constitution really means.
Sunstein opens his article with the following passage:
A growing number of people think that the meaning of the Constitution should be settled by reference to the “original understanding” of those who enacted its provisions. This view first became popular in the writings of Robert Bork; and though the Senate rejected his nomination to the Supreme Court, Bork’s enthusiasm for “originalism” is well-represented on that Court by Antonin Scalia and Clarence Thomas. Much of the attraction of originalism stems from the suggestion that the only realistic alternative to originalism is free-floating judicial creativity. If judges do not rely on the original understanding to anchor their decisions, won’t they be free to do whatever they want? If judges abandon the original understanding, won’t there be a serious problem of democratic legitimacy?
Remember, this was written in 1998, a few years before George W. Bush took office, a few more years before we see John Roberts take the helm. Sunstein poses an interesting question as to whether or not judges should hew to the original understanding of the words in the Constitution.
The Constitution was written for a low surplus society. Relative to our lives now, life then was very hard. I doubt most of us would enjoy the lives of the Founding Fathers, probably because they spent far too much time reading and they had no Netflix. Back then, people often died in epidemics and pandemics. People often died young, much younger than we die now. There is much that we have today that the Constitution did not contemplate.
Sunstein’s article is a long, long read for an op-ed, but it is well worth the effort to read it because he traces the contours of the changes in the Constitution from the original, to the Bill of Rights to some of the amendments. As I read it, I was hoping to answer the question: Does a fair reading of the Constitution always lead to conservative outcomes? I think that the answer is no.
Sunstein notes that in the evolution of the Constitution, from the original document to the Civil War that “ The original Bill [of Rights] was designed mostly to protect democracy rather than individual liberty; it was focused on the workings of majoritarian government, not on the protection of unpopular minorities.” And here we are, in 2020, hobbled by an unpopular minority that has twice lost the popular vote and won the electoral college. We also see that the Senators who voted to confirm Barrett represented a significantly smaller population than those who voted against them. I guess conservatives think that they can rule for the rest of us, you know, “for your own good.”
Conservatives are cool with their politics as long as they are free from the “tyranny of the majority”, but they are loathed to admit that the original founding documents were more concerned with protecting a nation that functions on majoritarian principles than protecting their unpopular minorities.
The unpopular minorities, with blessings from a conservative court, have taken much of the fruits of our labors to themselves. They have claimed no responsivities for the rest of us, and offer very little in terms of aid to the majorities they so detest. They insist that if we would just “get it” we could be like them. They insist on relying upon a document that was written for a low surplus society in an economy with an abundance of all of the basics and so much more. An unpopular minority insists that a document written by men who have been dead for at least 200 years can still be fairly applied to a nation that they could not have imagined now. Is that the original intent? Are conservatives sure that the extreme inequality enjoyed by an unpopular minority is what the Founding Fathers intended?
Have a seat and get some popcorn. Watch what happens over the next few months as we fight over the election results. Watch and see how many millions of ballots Republicans will try to toss in an effort to win an election. Watch and see how many people they wish to exclude from the task of determining our collective fate as they have done in the census. Watch them squirm as they may finally realize that The Founders really were more concerned with democracy than an unpopular minority running things, for they came to America to escape the very same kind of unpopular minority we face now.