Several Supreme Court justicesโmost consistently Clarence Thomasโdescribe themselves as โoriginalists.โ In a priorย Epoch Timesย column, I answered the question, โWhat is Originalism? I wrote:
โAlthough originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution much the same way they read other documents โฆ understand[ing] a document the same way the documentโs creators understood it.โ
Without the discipline of originalism, judges can, and do, inject their own preferences into the Constitution. In other words, they become unelected lawmakers.
Occasionally we are not certain about the exact meaning of a constitutional phrase. In such cases, even originalist judges must exercise discretion. But that discretion is narrower than the free rein assumed by non-originalist judges.
Serving Arbitrary Power
James Wilson was one of our leading Founders. In a lecture at what is now the University of Pennsylvania, he made the following observation:
โEvery plausible notion in favour of arbitrary power, appearing in a respectable dress, is received with eagerness, protected with vigilance, and diffused with solicitude, by an arbitrary government.โ
The truth of his comment is shown by the plethora of professors who pander to arbitrary, centralized power. Because the Constitution controls and limits power, they often spread nonsense about the Constitution. And sometimes itโs nonsense on stilts.
One illustration of nonsense on stilts is the claim that originalism was a partisan political idea cooked up by conservatives during the Reagan administration. The truth is that, although the label โoriginalismโ is new, the idea it represents is very old.
Old Originalism
Originalism has been the standard way for interpreting most documents for centuries.
The ancient Greek historianย Polybiusย (c. 200โ118 BCE) described a legal dispute where a key issue was the meaning of the word โabductionโ in a particular law. When a party to the suit argued that a suggested interpretation โwas not the intention of the lawgiver,โ the magistrate allowed the party to explain why. Although the magistrate ultimately ruled the other way, the takeaway from the case is that the magistrate recognized the controlling force of the โintention of the lawgiver.โ (Polybius, โHistoriesโ 12.16.9).
Another example: The Byzantine-Roman Emperor Justinian (527โ565) ordered that Roman law be codifiedโthat is, organized in a more usable form. The result, theย Corpus Juris Civilis, is the foundation of modern European and Latin American law. Theย Corpus Jurisย also has influenced our Anglo-American common law in numerous ways.
A passage in theย Corpus Juris, based on comments by a leading third-century commentator, explains how to interpret certain contracts: The reader is to consider both the words of the contract and theย mens convenientiumโthat is, the intention or understanding of the parties. (Justinianโs Digest, 2.14.7.8.) The passage gives an example that shows how testimony of intent can alter the apparent meaning of the words.
Unlike Greek and Roman legal systems, the English legal system was the direct ancestor of our own. For English lawyers and judges, the guide for interpreting legal documents was โthe intent of the makersโโthat is, the understanding of the parties.
If an English judge had to determine the meaning of a phrase in a contract, he asked, โHow did the parties to this contract understand this phrase? And if the evidence isnโt clear on this point, what was their most likely understanding?โ
Similarly, if the disputed language appeared in a parliamentary statute, the judge asked, โHow did the Members of Parliament who voted for this law understand the phrase? Or, if the evidence isnโt clear on this point, what was their most likely understanding?โ
This is pure originalism. And it was in full flower 500 years ago, if not earlier. In a 2007 scholarly article, I explained how it worked in practice (pdf).
Originalism ? Textualism
This is a good place for a related observation: Many people confuseย originalismย withย textualism. They are not the same thing.
Originalism is applying a document according to how its creators understood it. Textualism is a particular way of achieving that result. Textualism sometimes is appropriate and sometimes not.
Textualism means searching for the partiesโ understanding from the text of the document only. A textualist does not consider outside evidence, such as prior history or testimony about what the parties intended.
Whether to consider outside evidence in a particular case is an age-old problem. It arises in many areas of the law: Thirty years ago, I examined the issue in a book on land conveyancesโโModern Law of Deeds to Real Property.โ
A much more famous commentator, the late Justice Antonin Scalia, pointed out that individual members of Congress and staffers often try to skew interpretation of a pending bill by injecting their own ideas into the legislative history. Therefore, Scalia argued, when reading modern federal statutes, we should ignore legislative history and examine only the enacted text.
In other cases, howeverโincluding constitutional interpretationโoutside evidence often is quite reliable and worth considering. So in constitutional interpretation, itโs not a good idea to be a pure textualist. The English jurists had a Latin maxim that said, โQui haeret in literaย haeret in corticeโโโWhoever sticks to the letter, sticks to the bark.โ This means that reading the text gives you only a superficial understanding of the document. You need to look at the context as well.
Early American Originalism
Even before the U.S. Constitution was written, judges started applying originalist principles to state constitutions. An example is the 1782 Virginia case of Commonwealth v. Caton. Six of the eight justices deciding the case were important American Founders, and all eight justices interpreted their state constitution according to the understanding of its โmakers.โ
Inย Caton, the state constitutionโs โmakersโ were the legislature that adopted it. However, the โmakersโ of the U.S. Constitution (as the Founders made clear) were the state ratifying conventions that converted the Constitutional Conventionโs recommendation into the supreme law of the land.
In 1803, after the U.S. Constitution had been in effect for 14 years, the Supreme Court decided the famous case ofย Marbury v. Madison, with Chief Justice John Marshall writing for a unanimous court.
Inย Marbury, the court had to construe a federal statute. Then it had to construe the Constitution to see if the statute complied with the Constitution. The court applied originalist methods to both: First, it interpreted the statute according to โthe intention of the law.โ Next, it interpreted the Constitutionโs grant of โthe judicial powerโ according to the โintention of those who gave this power.โ
Later History
Originalism remained the standard way of interpreting the Constitution until well into the 20th century. However, during the 1930s and 1940s, โprogressiveโ Supreme Court justices (most of whom had no prior judicial experience) displaced originalism with methods of reading the Constitution that exalted federal power at the expense of individuals and the states. (See my Epoch Timesย series, โHow the Supreme Court Rewrote the Constitution.)
In other words, the methods applied by โprogressivesโ are the new, partisan inventions. Originalism is the standard bequeathed by the ages.
This essay wasย first publishedย inย The Epoch Timesย on September 14, 2022.
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