Robert Bork — Tempting of America — Videos
“The best lack all conviction, while the worst are full of passionate intensity.”
~William Butler Yates
Robert Bork – Constitutional Precedent
Flashback: Ted Kennedy ‘Borking’ Bork (1987)
Judge Bork Judicial Activism
Thomas Sowell – Congressional Testimony
From the Bork Confirmation Hearings, Thomas Sowell responds to Congressional questions regarding affirmative action, judicial activism and other issues. Orrin Hatch, Joe Biden, Howell Heflin, Gordon Humphrey. http://www.LibertyPen.com
Thomas Sowell – Robert Bork Hearings (1987)
Alito on Bork
Robert Bork: Supreme Court Nomination Hearings from PBS NewsHour and EMK Institute
ROBERT’S RULES OF ORDER: A Conversation with Robert Bork
Judicial Philosophy/Originalism-The Tempting of America: The Political Seduction of the Law
A Conversation with Judge Robert H. Bork 6-26-07
Friedrich von Hayek and Robert Bork Part I (U1009) – Full Video
Friedrich von Hayek and Robert Bork Part II (U1040) – Full Video
Friedrich von Hayek and Robert Bork Part III (U1051) – Full Video
“Slouching Towards Gomorrah” with Robert Bork
Robert Bork Interview on Nixon 2008
President Reagan’s Address to the Nation on the Nomination of Judge Bork, October 14, 1987
Bork’s Impact on the Confirmation Process
Supreme Court Justice says ‘Right to Privacy not in Constitution’
Robert Bork Supreme Court Nomination Process Hearings Day 1 Part 1 (1987)
Why We’re Losing Liberty
Why I Left the Left
Why the Right is Right
Antonin Scalia and Stephen Breyer debate the Constitution
A Conversation on the Constitution: Judicial Interpretation Part 1 Volume 1
Uncommon Knowledge with Justice Antonin Scalia
|Judge of the United States Court of Appeals for the District of Columbia Circuit|
February 9, 1982 – February 5, 1988
|Appointed by||Ronald Reagan|
|Preceded by||Carl McGowan|
|Succeeded by||Clarence Thomas|
|United States Attorney General
October 20, 1973 – December 17, 1973
|Preceded by||Elliot Richardson|
|Succeeded by||William Saxbe|
|Solicitor General of the United States|
March 21, 1973 – January 20, 1977
|Preceded by||Erwin Griswold|
|Succeeded by||Daniel Friedman(Acting)|
|Born||Robert Heron Bork
March 1, 1927
Pittsburgh, Pennsylvania, U.S.
|Died||December 19, 2012 (aged 85)
Arlington, Virginia, U.S.
|Spouse(s)||Claire Davidson (1952–1980)
Mary Ellen Pohl (1982–2012)
|Education||University of Chicago(BA, JD)|
|This article is part of a series on|
the United States
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American judge and legal scholar who advocated the judicial philosophy of originalism. Bork served as a Yale Law School professor, Solicitor General, Acting Attorney General, and a judge of the United States Court of Appeals for the District of Columbia Circuit.
Bork is acclaimed also as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject.
Early career and family
Bork was born in Pittsburgh, Pennsylvania. His father was Harry Philip Bork, Jr. (1897–1974), a steel company purchasing agent, and his mother was Elisabeth (née Kunkle; 1898–2004), a schoolteacher. His father was of German and Irish ancestry, while his mother was of Pennsylvania Dutch (German) descent. He was married to Claire Davidson from 1952 until 1980, when she died of cancer. They had a daughter, Ellen, and two sons, Robert and Charles. In 1982 he married Mary Ellen Pohl, a Catholic religious sister turned activist.
Bork attended the Hotchkiss School in Lakeville, Connecticut and earned bachelor’s and law degrees from the University of Chicago. While pursuing his bachelor’s degree he became a brother of the international social fraternity of Phi Gamma Delta. While pursuing his law degree he served on Law Review. At Chicago he was awarded a Phi Beta Kappa key with his law degree in 1953 and passed the bar in Illinois that same year. After a period of service in the United States Marine Corps, Bork began as a lawyer in private practice in 1954 at Willkie Farr & Gallagher LLP in New York and then was a professor at Yale Law School from 1962 to 1975 and 1977 to 1981. Among his students during this time were Bill Clinton, Hillary Clinton, Anita Hill, Robert Reich, Jerry Brown, John R. Bolton, Samuel Issacharoff, and Cynthia Estlund.
Advocacy of originalism
Bork was best known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the “Madisonian” or “counter-majoritarian” dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers’ original understanding of the United States Constitution. Reiterating that it is a court’s task to adjudicate and not to “legislate from the bench,” he advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame “neutral principles” (a term borrowed from Herbert Wechsler) and not simply ad hoc pronouncements or subjective value judgments. Bork once said, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”
Bork built on the influential critiques of the Warren Court authored by Alexander Bickel, who criticized the Supreme Court under Earl Warren, alleging shoddy and inconsistent reasoning, undue activism, and misuse of historical materials. Bork’s critique was harder-edged than Bickel’s, however, and he has written, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.” Bork’s writings influenced the opinions of judges such as Associate JusticeAntonin Scalia and Chief JusticeWilliam Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within legal academia about how to interpret the Constitution.
Some conservatives criticized Bork’s approach. Conservative scholar Harry Jaffa criticized Bork (along with Rehnquist and Scalia) for failing to adhere to natural law principles.Robert P. George explained Jaffa’s critique this way: “He attacks Rehnquist and Scalia and Bork for their embrace of legal positivism that is inconsistent with the doctrine of natural rights that is embedded in the Constitution they are supposed to be interpreting.”
At Yale, he was best known for writing The Antitrust Paradox, a book in which he argued that consumers often benefited from corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. He posited that the primary focus of antitrust laws should be on consumer welfare rather than ensuring competition, as fostering competition of companies within an industry has a natural built-in tendency to allow, and even help, many poorly run companies with methodologies and practices that are both inefficient and expensive to continue in business simply for the sake of competition, to the detriment of both consumers and society. Bork’s writings on antitrust law—with those of Richard Posner and other law and economics and Chicago School thinkers—were influential in causing a shift in the U.S. Supreme Court’s approach to antitrust laws since the 1970s.
Bork served as solicitor general in the U.S. Department of Justice from March 1973 to 1977. As solicitor general, Bork argued several high-profile cases before the Supreme Court in the 1970s, including 1974’s Milliken v. Bradley, where Bork’s brief in support of the State of Michigan was influential among the justices. Chief Justice Warren Burger called Bork the most effective counsel to appear before the court during his tenure. Bork hired many young attorneys as assistants who went on to have successful careers, including judges Danny Boggs and Frank H. Easterbrook as well as Robert Reich, later secretary of labor in the Clinton administration.
“Saturday Night Massacre”
On October 20, 1973, Solicitor General Bork was instrumental in the “Saturday Night Massacre“, U.S. President Richard Nixon‘s firing of WatergateSpecial ProsecutorArchibald Cox, following Cox’s request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson’s top deputy, Deputy Attorney GeneralWilliam Ruckelshaus, also considered the order “fundamentally wrong” and also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act found illegal in November of that year in a suit brought by Ralph Nader. The Justice Department did not appeal the ruling, and because Cox indicated that he did not want his job back, the issue was considered resolved. Bork remained Acting Attorney General until the appointment of William B. Saxbe on January 4, 1974.
In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of the Watergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.
United States Circuit Judge
Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit between 1982 and 1988. He was nominated by President Reagan on December 7, 1981, was confirmed with a unanimous consent voice vote by the Senate on February 8, 1982, and received his commission on February 9, 1982.
One of his opinions while on the D.C. Circuit was Dronenburg v. Zech, 741 F.2d 1388, decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the Navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by Antonin Scalia, in which Bork critiqued the line of Supreme Court cases upholding a right to privacy.
In rejecting Dronenburg’s suggestion for a rehearing en banc, the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Scalia), who wrote that “no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant’s case fell within or without that principle.”
In 1986, President Reagan considered nominating Bork to the Supreme Court vacancy created by the promotion of Associate Justice William Rehnquist to Chief Justice. Reagan ultimately chose Bork’s D.C. Circuit colleague, Judge Antonin Scalia, for the position.
U.S. Supreme Court nomination
President Reagan nominated Bork for Associate Justice of the Supreme Court on July 1, 1987 to replace Lewis Powell. A hotly contested United States Senate debate over Bork’s nomination ensued. Opposition was partly fueled by civil rights and women’s rights groups concerned with Bork’s opposition to the authority claimed by the federal government to impose standards of voting fairness upon the states (at his confirmation hearings for the position of Solicitor General, he supported the rights of Southern states to impose a poll tax), and his stated desire to roll back civil rights decisions of the Warren and Burger courts. Bork was one of only three Supreme Court nominees, along with William Rehnquist and Samuel Alito, to ever be opposed by the American Civil Liberties Union. Bork was also criticized for being an “advocate of disproportionate powers for the executive branch of Government, almost executive supremacy”, most notably, according to critics, for his role in the Saturday Night Massacre.
Before Supreme Court Justice Lewis Powell’s expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to “form a ‘solid phalanx’ of opposition” if President Ronald Reagan nominated an “ideological extremist” to replace him, assuming it would tilt the court rightward. Democrats also warned Reagan there would be a fight if Bork were nominated. Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.
Following Bork’s nomination to the Court, Sen. Ted Kennedy took to the Senate floor with a strong condemnation of Bork declaring:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy … President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
Bork responded, “There was not a line in that speech that was accurate.” In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, “but it worked.” Bork also contended in his best-selling book, The Tempting of America, that the brief prepared for Sen. Joe Biden, head of the Senate Judiciary Committee, “so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility.”
Television advertisements produced by People For the American Way and narrated by Gregory Peck attacked Bork as an extremist. Kennedy’s speech successfully fueled widespread public skepticism of Bork’s nomination. The rapid response to Kennedy’s “Robert Bork’s America” speech stunned the Reagan White House, and the accusations went unanswered for two and a half months.
During debate over his nomination, Bork’s video rental history was leaked to the press. His video rental history was unremarkable, and included such harmless titles as A Day at the Races, Ruthless People, and The Man Who Knew Too Much. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the Washington City Paper. Dolan justified accessing the list on the ground that Bork himself had stated that Americans only had such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988 Video Privacy Protection Act.
To pro-choice rights legal groups, Bork’s originalist views and his belief that the Constitution does not contain a general “right to privacy” were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court’s 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork’s rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle.
On October 23, 1987, the Senate denied Bork’s confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic Senators, David Boren (D-OK) and Ernest Hollings (D-SC), voted in his favor, with 6 Republican Senators (John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (R-PA), Robert Stafford (R-VT), John Warner (R-VA), and Lowell P. Weicker, Jr. (R-CT) voting against him.
The vacant court seat Bork was nominated to eventually went to Judge Anthony Kennedy, who was unanimously approved by the Senate, 97–0. Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.
Bork as verb
According to columnist William Safire, the first published use of bork as a verb was possibly in The Atlanta Journal-Constitution of August 20, 1987. Safire defines to bork by reference “to the way Democrats savaged Ronald Reagan’s nominee, the Appeals Court judge Robert H. Bork, the year before.” Perhaps the best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court, saying, “We’re going to bork him. We’re going to kill him politically … This little creep, where did he come from?” Thomas was subsequently confirmed after one of the most divisive confirmation hearings in Supreme Court history.
In March 2002, the Oxford English Dictionary added an entry for the verb bork as U.S. political slang, with this definition: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”
There was an earlier usage of bork as a passive verb, common among litigators in the D.C. Circuit: to “get borked” was to receive a conservative judicial decision with no justification in the law, reflecting their perception, later documented in the Cardozo Law Review, of Judge Bork’s tendency to decide cases solely according to his ideology.
Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit and was for several years both a professor at George Mason University School of Law and a senior fellow at the American Enterprise Institute for Public Policy Research, a Washington, D.C., based think tank. Bork also consulted for Netscape in the Microsoft litigation. Bork was a fellow at the Hudson Institute. He later served as a visiting professor at the University of Richmond School of Law and was a professor at Ave Maria School of Law in Ann Arbor, Michigan. In 2011, Bork worked as a legal adviser for the presidential campaign of Republican Mitt Romney.
Works and views
Bork wrote several books, including the two best-sellers The Tempting of America, about his judicial philosophy and his nomination battle, and Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argued that the rise of the New Left in the 1960s in the U.S. undermined the moral standards necessary for civil society, and spawned a generation of intellectuals who oppose Western civilization. Curiously, during the period these books were written, as well as most of his adult life, Bork was an agnostic, a fact used pejoratively behind the scenes by Southern Democrats when speaking to their evangelical constituents during his Supreme Court nomination process.
In The Tempting of America (page 82), Bork explained his support for the Supreme Court’s desegregation decision in Brown v. Board of Education:
By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court’s realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.
In 2003, he published Coercing Virtue: The Worldwide Rule Of Judges, an American Enterprise Institute book that includes Bork’s philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focuses on problems he sees as inherent in the federal judiciary of three nations, Israel, Canada, and the United States—countries where he believes courts have exceeded their discretionary powers, and have discarded precedent and common law, and in their place substituted their own liberal judgment.
Bork also advocated modifying the Constitution to allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian notwithstanding clause. Though Bork had many liberal critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control, Bork denounced what he called the “NRA view” of the Second Amendment, something he described as the “belief that the constitution guarantees a right to Teflon-coated bullets.” Instead, he argued that the Second Amendment merely guarantees a right to participate in a government militia.
On June 6, 2007, Bork filed suit in federal court in New York City against the Yale Club over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the dais to speak at an event, he fell, because of the Yale Club’s failure to provide any steps or handrail between the floor and the dais. (After his fall, he successfully climbed to the dais and delivered his speech.) According to the complaint, Bork’s injuries required surgery, immobilized him for months, forced him to use a cane, and left him with a limp. In May 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.
On June 7, 2007, Bork with several others authored an amicus brief on behalf of Scooter Libby arguing that there was a substantial constitutional question regarding the appointment of the prosecutor in the case, reviving the debate that had previously resulted in the Morrison v. Olson decision.
On December 15, 2007, Bork endorsed Mitt Romney for President. He repeated this endorsement on August 2, 2011.
Bork died of complications from heart disease at the Virginia Hospital Center in Arlington, Virginia, on December 19, 2012. Following his death, Scalia referred to Bork as “one of the most influential legal scholars of the past 50 years” and “a good man and a loyal citizen”. Mike Lee, Senator from Utah, called Bork “one of America’s greatest jurists and a brilliant legal mind”.
In popular culture
In the “cold open” scene from a season 13 episode of Saturday Night Live that parodied a scene from the film The Untouchables (film), President Reagan (Phil Hartman) brutally beats Robert Bork with a baseball bat.
- Bork, Robert H. (1971). “Neutral Principles and Some First Amendment Problems”. Ind. L. J. 47: 1.This paper has been identified as one of the most cited legal articles of all time.
- Bork, Robert H. (1978). The Antitrust Paradox. New York: Free Press. ISBN 0-465-00369-9.
- Bork, Robert H. (1990). The Tempting of America. New York: Free Press. ISBN 0-684-84337-4.
- Bork, Robert H. (1993). The Antitrust Paradox (second edition). New York: Free Press. ISBN 0-02-904456-1.
- Bork, Robert H. (1996). Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBooks. ISBN 0-06-039163-4.
- Bork, Robert H. (2003). Coercing Virtue: The Worldwide Rule of Judges. Washington, D.C.: American Enterprise Institute Press. ISBN 0-8447-4162-0.
- Bork, Robert H. (Ed.) (2005). A Country I Do Not Recognize: The Legal Assault On American Values. Stanford: Hoover Institution Press. ISBN 0-8179-4602-0.
- Bork, Robert H. (2008) A Time to Speak: Selected Writings and Arguments. Wilmington, Del.: ISI Books. ISBN 9781933859682
- Aaron Director
- Ronald Reagan Supreme Court candidates
- Unsuccessful nominations to the Supreme Court of the United States
|General Rules of Interpretation|
|General Theories of Interpretation|
In the context of United States constitutional interpretation, originalism is a way to interpret the Constitution‘s meaning as stable from the time of enactment, and which can only be changed by the steps set out in Article Five of the Constitution. The term originated in the 1980s. Originalism is based on formalist theory, and when applied to meaning, is closely related to textualism.
Today, originalism is popular among some political conservatives in the U.S., and is most prominently associated with Justice Clarence Thomas, 2017 Supreme Court nominee Neil Gorsuch, Justice Antonin Scalia, and Robert Bork. However, some liberals, such as late Justice Hugo Black and legal scholar Akhil Amar, have also subscribed to the theory.
Originalism is an umbrella term for interpretative methods that hold to the “fixation thesis”—the notion that an utterance’s semantic content is fixed at the time it is uttered.Originalists seek one of two alternative sources of meaning:
- The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
- The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.
These theories share the view that there is an identifiable original intent or original meaning, contemporaneous with a constitution’s or statute’s ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.
Originalism and strict constructionism
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Bret Boyce described the origins of the term originalist as follows: The term “originalism” has been most commonly used since the middle 1980s and was apparently coined by Paul Brest in The Misconceived Quest for the Original Understanding. It is often asserted that originalism is synonymous with strict constructionism.
Both theories are associated with textualist and formalist schools of thought, however there are pronounced differences between them. Justice Scalia differentiated the two by pointing out that, unlike an originalist, a strict constructionist would not acknowledge that he uses a cane means he walks with a cane (because, strictly speaking, this is not what he uses a cane means). Scalia averred that he was “not a strict constructionist, and no-one ought to be”; he goes further, calling strict constructionism “a degraded form of textualism that brings the whole philosophy into disrepute”.
Originalism is a theory of interpretation, not construction. However, this distinction between “interpretation” and “construction” is controversial and is rejected by many nonoriginalists as artificial. As Scalia said, “the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably”; once originalism has told a Judge what the provision of the Constitution means, they are bound by that meaning—however the business of Judging is not simply to know what the text means (interpretation), but to take the law’s necessarily general provisions and apply them to the specifics of a given case or controversy (construction). In many cases, the meaning might be so specific that no discretion is permissible, but in many cases, it is still before the Judge to say what a reasonable interpretation might be. A judge could, therefore, be both an originalist and a strict constructionist—but he is not one by virtue of being the other.
To put the difference more explicitly, both schools take the plain meaning of the text as their starting point, but have different approaches that can best be illustrated with a fictitious example.
Suppose that the Constitution contained (which it obviously does not) a provision that a person may not be “subjected to the punishments of hanging by the neck, beheading, stoning, pressing, or execution by firing squad“. A strict constructionist might interpret that clause to mean that the specific punishments mentioned above were unconstitutional, but that other forms of capital punishment were permissible. For a strict constructionist, the specific, strict reading of the text is the beginning and end of the inquiry.
For an originalist, however, the text is the beginning of the inquiry, and two originalists might reach very different results, not only from the strict constructionist, but from each other. “Originalists can reach different results in the same case” (see What originalism is not—originalism is not always an answer in and of itself, below); one originalist might look at the context in which the clause was written, and might discover that the punishments listed in the clause were the only forms of capital punishment in use at that time, and the only forms of capital punishment that had ever been used at the time of ratification. An originalist might therefore conclude that capital punishment in general, including those methods for it invented since ratification, such as the electric chair, are not constitutional. Another originalist may look at the text and see that the writers created a list. He would assume that the authors intended this to be an exhaustive list of objectionable executions. Otherwise, they would have banned capital punishment as a whole, instead of listing specific means of punishment. He would rule that other forms of execution are constitutional.
Note that originalists would agree that, if the original meaning of the text could be ascertained, that meaning governs. Where they disagree, as in this example, is about exactly how to find that meaning. For example, any originalist or even a strict constructionist might apply the canon of construction expressio unius est exclusio alterius, which presumes that when an author includes one example he intends to exclude others. If that canon is appropriate in the example here, all originalist interpreters would likely reach the same result. Contrast this with a “living constitutional” interpretation, which might find that, although the text itself only prohibits certain methods, those methods are examples of particularly unpleasant methods of execution; therefore, the text invites modern readers to extend its principle to those forms of punishment we now find particularly unpleasant.
Forms of originalism
Originalism is actually a family of related views. Originalism as a movement got off to a slow start in 1971, with Robert Bork’s Neutral Principles and Some First Amendment Problems. It was not until the 1980s, when conservative jurists began to take seats on the Supreme Court, that the debate really began in earnest. “Old originalism” focused primarily on “intent,” mostly by default. But that line was largely abandoned in the early 1990s; as “New originalism” emerged, most adherents subscribed to “original meaning” originalism, though there are some intentionalists within new originalism.
The original form of originalism is sometimes called intentionalism, or original intent originalism, and looked for the subjective intent of a law’s enactors. One problem with this approach is identifying the relevant “lawmaker” whose intent is sought. For instance, the authors of the U.S. Constitution could be the particular Founding Fathers that drafted it, such as those on the Committee of Detail. Or, since the Constitution purports to originate from the People, one could look to the various state ratifying conventions. The intentionalist methodology involves studying the writings of its authors, or the records of the Philadelphia Convention, or debates in the state legislatures, for clues as to their intent.
There are two kinds of intent analysis, reflecting two meanings of the word intent. The first, a rule of common law construction during the Founding Era, is functional intent. The second is motivational intent. To understand the difference, one can use the metaphor of an architect who designs a Gothic church with flying buttresses. The functional intent of flying buttresses is to prevent the weight of the roof from spreading the walls and causing a collapse of the building, which can be inferred from examining the design as a whole. The motivational intent might be to create work for his brother-in-law who is a flying buttress subcontractor. Using original intent analysis of the first kind, we can discern that the language of Article III of the U.S. Constitution was to delegate to Congress the power to allocate original and appellate jurisdictions, and not to remove some jurisdiction, involving a constitutional question, from all courts. That would suggest that the decision was wrong in Ex Parte McCardle.
Problems with intentionalism
However, a number of problems are inherent in intentionalism, and a fortiori when that theory is applied to the Constitution. For example, most of the Founders did not leave detailed discussions of what their intent was in 1787, and while a few did, there is no reason to think that they should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded; however they were not available to the ratifiers in each state. The theory of original intent was challenged in a string of law review articles in the 1980s. Specifically, original intent was seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries’ distance; and whether the framers themselves would have supported original intent.
Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to “get into his mind” because the issue was “not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.” This is the essential precept of modern Originalism.
The most robust and widely cited form of originalism, original meaning emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like “due process” and “freedom of the press” had a long established meaning in English law, even before they were put into the Constitution of the United States.” Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone’s Commentaries on the Laws of England; see “Matters rendered moot by originalism”, infra) to establish what particular terms meant. See Methodology, infra).
Justice Scalia, one of the most forceful modern advocates for originalism, defined himself as belonging to the latter category:
The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
Though there may be no evidence that the Founding Fathers intended the Constitution to be like a statute, this fact does not matter under Scalia’s approach. Adherence to original meaning is explicitly divorced from the intent of the Founders; rather, the reasons for adhering to original meaning derive from other justifications, such as the argument that the understanding of the ratifiers (the people of the several States at the time of the adoption of the Constitution) should be controlling, as well as consequentialist arguments about original meaning’s positive effect on rule of law.
Perhaps the clearest example to illustrate the importance of the difference between original intent and original understanding is to use the Twenty-seventh Amendment. The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain, public meaning of the text was in 1992 when it was eventually ratified.
Semantic-originalism is Ronald Dworkin‘s term for the theory that the original meaning of many statutes implies that those statutes prohibit certain acts widely considered not to be prohibited by the statutes at the time of their passages. This type of originalism contrasts with expectations originalism, which adheres to how the statutes functioned at the times of their passages, without any expectation that they would function in any other particular ways.
Justice Antonin Scalia and other originalists often claim that the death penalty is not “cruel and unusual punishment” because at the time of the Eighth Amendment‘s passage, it was a punishment believed to be neither cruel nor unusual. Dworkin and the semantic-originalists assert, however, that if advances in moral philosophy (presuming that such advances are possible) reveal that the death penalty is in fact “cruel and unusual”, then the original meaning of the Eighth Amendment implies that the death penalty is unconstitutional. All the same, Justice Scalia purported to follow semantic originalism, although he conceded that Dworkin does not believe Scalia was true to that calling.
Framework Originalism is an approach developed by Jack Balkin, a professor of law at Yale Law School. Framework Originalism, or Living Originalism, is a blend of primarily two constitutional interpretive methods: originalism and Living Constitution. Balkin holds that there is no inherent contradiction between these two, aforementioned, interpretive approaches—when properly understood. Framework Originalists view the Constitution as an “initial framework for governance that sets politics in motion.” This “framework” must be built-out or filled-out over time, successive generations, by the various legislative and judicial branches. This process is achieved, primarily, through building political institutions, passing legislation, and creating precedents (both judicial and non-judicial). In effect, the process of building out the Constitution on top of the framework of the original meaning is living constitutionalism, the change of and progress of law over time to address particular (current) issues. The authority of the judiciary and of the political branches to engage in constitutional construction comes from their “joint responsiveness to public opinion” over long stretches of time, while operating within the basic framework of the original meaning. Balkin claims that through mechanisms of social influence, both judges and the political branches inevitably come to reflect and respond to changing social mores, norms, customs and (public) opinions.
According to Framework originalism, interpreters should adhere to the original meaning of the Constitution, but are not necessarily required to follow the original expected application (although they may use it to create doctrines and decide cases). For example, states should extend the equal protection of the laws to all peoples, in cases where it would not originally or normally be applied to. Contemporary interpreters are not bound by how people in 1868 would have applied these words and meanings to issues such as racial segregation or (sexual) discrimination, largely due to the fact the fourteenth amendment is concerned with such issues (as well as the fact that the fourteenth amendment was not proposed or ratified by the founders). When the Constitution uses or applies principles or standards, like “equal protection” or “unreasonable searches and seizures,” further construction is usually required, by either the judiciary, the executive or legislative branch. Therefore, Balkin claims, (pure, unadulterated) originalism is not sufficient to decide a wide range of cases or controversies. Judges, he posits, will have to “engage in considerable constitutional construction as well as the elaboration and application of previous constructions.” For example, originalism (in and of itself), is not sufficient enough to constrain judicial behavior. Constraint itself does not just come from doctrine or canons, it also comes from institutional, political, and cultural sources. These constraints include: multi-member or panel courts (where the balance of power lies with moderate judges); the screening of judges through the federal judicial appointment process; social and cultural influences on the judiciary (which keep judges attuned and attentive to popular opinions and the political will of the people); and prevailing professional legal culture and professional conceptions of the role of the judiciary (which produce social norms or mores). These constraints ensure that judges try to behave; to act as impartial arbiters of the law and to try to behave in a principled manner, as it applies to decision making.
In “The Original Meaning of the Recess Appointments Clause”, Prof. Michael B. Rappaport described the methodology associated with the “Original Meaning” form of originalism as follows:
- “The task is to determine the original meaning of the language … that is, to understand how knowledgeable individuals would have understood this language…when it was drafted and ratified. Interpreters at the time would have examined various factors, including text, purpose, structure, and history.”
- “The most important factor is the text of the Clause. The modern interpreter should read the language in accord with the meaning it would have had in the late 1780s. Permissible meanings from that time include the ordinary meanings as well as more technical legal meanings words may have had.”
- “If the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity. Purpose, structure, and history provide evidence for determining which meaning of the language the authors would have intended.”
- “The purpose of a Clause involves the objectives or goals that the authors would have sought to accomplish in enacting it. One common and permissible way to discern the purpose is to look to the evident or obvious purpose of a provision. Yet, purpose arguments can be dangerous, because it is easy for interpreters to focus on one purpose to the exclusion of other possible purposes without any strong arguments for doing so.”
- “Historical evidence can reveal the values that were widely held by the Framers’ generation and that presumably informed their purposes when enacting constitutional provisions. History can also reveal their practices, which when widely accepted would be evidence of their values.”
- “The structure of the document can also help to determine the purposes of the Framers. The decision to enact one constitutional clause may reveal the values of the Framers and thereby help us understand the purposes underlying a second constitutional clause.”
- “One additional source of evidence about the meaning of constitutional language is early constitutional interpretations by government officials or prominent commentators. …Such interpretations may provide evidence of the original meaning of the provisions, because early interpreters would have had better knowledge of contemporary word meanings, societal values, and interpretive techniques. Of course, early interpreters may also have had political and other incentives to misconstrue the document that should be considered.” (Id. at 5–7). Historians[who?] of course reject the last point, arguing that discerning original meaning requires access to many different evidence—such as statements from many people—that the people at the time did not have access to. Furthermore, most of the evidence that would clarify the original meaning has been lost—only fragments remain in the form of materials that were written down and happen to survive for hundreds of years. Whenever there is ambiguity there probably is also a paucity of evidence to resolve that ambiguity.
Originalism, in all its various forms, is predicated on a specific view of what the Constitution is, a view articulated by Chief Justice John Marshall in Marbury v. Madison:
[T]he constitution organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?
Originalism assumes that Marbury is correct: the Constitution is the operating charter granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be. In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the Presidency, two chambers of Congress and the Supreme Court at the national level, and State governments of the United States with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document’s meaning is not fixed. As one author stated, “If the constitution can mean anything, then the constitution is reduced to meaninglessness.”
Function of constitutional jurisprudence
Dissenting in Romer v. Evans, Justice Antonin Scalia wrote:
Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.
This statement summarizes the role for the court envisioned by Originalists, that is, that the Court parses what the general law and constitution says of a particular case or controversy, and when questions arise as to the meaning of a given constitutional provision, that provision should be given the meaning it was understood to mean when ratified. Reviewing Steven D Smith’s book Law’s Quandary, Justice Scalia applied this formulation to some controversial topics routinely brought before the Court:
It troubles Smith, but does not at all trouble me—in fact, it pleases me—that giving the words of the Constitution their normal meaning would “expel from the domain of legal issues … most of the constitutional disputes that capture our attention”, such as “Can a macho military educational institution dedicated to what is euphemistically called the ‘adversative’ method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one’s life?” If we should read English as English, Smith bemoans, “these questions would seemingly all have received the same answer: ‘No law on that one.'”
That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law.
In Marbury, Chief Justice Marshall established that the Supreme Court could invalidate laws which violated the Constitution (that is, judicial review), which helped establish the Supreme Court as having its own distinct sphere of influence within the Federal Government. However, this power was itself balanced with the requirement that the Court could only invalidate legislation if it was unconstitutional. Originalists argue that the modern court no longer follows this requirement. They argue that—since U.S. v. Darby, in which Justice Stone (writing for a unanimous Court) ruled that the Tenth Amendment had no legal meaning—the Court has increasingly taken to making rulings in which the Court has determined not what the Constitution says, but rather, the Court has sought to determine what is “morally correct” at this point in the nation’s history, in terms of “the evolving standards of decency” (and considering “the context of international jurisprudence”), and then justified that determination through a “creative reading” of the text. This latter approach is frequently termed “the Living constitution“; Justice Scalia inveighed that “the worst thing about the living constitution is that it will destroy the constitution”.
Matters rendered moot by originalism
Originalists are sharply critical of the use of the evolving standards of decency (a term which first appeared in Trop v. Dulles) and of reference to the opinions of courts in foreign countries (excepting treaties to which the United States is a signatory, per Article II, Section 2, Clause 2 of the United States Constitution) in Constitutional interpretation.
In an originalist interpretation, if the meaning of the Constitution is static, then any ex post facto information (such as the opinions of the American people, American judges, or the judiciaries of any foreign country) is inherently valueless for interpretation of the meaning of the Constitution, and should not form any part of constitutional jurisprudence. The Constitution is thus fixed and has procedures defining how it can be changed.
The exception to the use of foreign law is the English common law, which originalists regard as setting the philosophical stage for the US Constitution and the American common and civil law. Hence, an originalist might cite Blackstone‘s Commentaries to establish the meaning of the term due process as it would have been understood at the time of ratification.
What originalism is not
Originalism is not the theory of original intent
As discussed previously, original intent is only one theory in the Originalist family of theories. Many of the criticisms that are directed at original intent do not apply to other Originalist theories.
Originalism is not conservatism
It is not accurate to say that originalism rejects change or that originalists necessarily oppose the use of “the evolving standards of decency” in determining what the Constitution ought to say; rather, originalism rejects the concept that the courts should consider what the Constitution ought to say but instead rule solely on what it said as understood at the time of its enactment. Originalists argue that the business of determining what the Constitution and the law ought to say is within the purview of the Congress, that changes to the law should come through the legislature, and changes to the constitution should be made per the amendment process outlined in Article V. Sometimes this approach yields results that please conservatives (see, for example, Justice Scalia’s dissents in Roper v. Simmons or Romer), and sometimes it yields results that do not (see, for example, Justice Scalia’s dissents in BMW v. Gore or Hamdi v. Rumsfeld).
Originalism is not always an answer in and of itself
Originalism is a means of constitutional interpretation, not constitutional construction; whenever “to describe [a] case is not to decide it”, it can only serve as a guide for what the Constitution says, not how that text applies to a given case or controversy. Thus, Originalists can reach different results in the same case; see, for example, United States v. Fordice; McIntyre; Hamdi, Gonzales v. Raich; National Cable & Telecommunications Assn. v. Brand X Internet Services. According to an article in The New Republic, although Scalia admits that Thomas “is really the only justice whose basic approach to the law is the same as mine”, the author contends that “during the court’s 2003–2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.”
Pros and cons
Arguments for and against Originalism should be read in conjunction with alternative views and rebuttals, presented in footnotes.
Arguments favoring originalism
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- If a constitution no longer meets the exigencies of a society’s evolving standard of decency, and the people wish to amend or replace the document, there is nothing stopping them from doing so in the manner which was envisioned by the drafters: through the amendment process. The Living Constitution approach would thus only be valuable in the absence of an amendment process.
- Originalism deters judges from unfettered discretion to inject their personal values into constitutional interpretation. Before one can reject originalism, one must find another criterion for determining the meaning of a provision, lest the “opinion of this Court [rest] so obviously upon nothing however the personal views of its members”. Scalia has averred that “there is no other” criterion to constrain judicial interpretation.
- Originalism helps ensure predictability and protects against arbitrary changes in the interpretation of a constitution; to reject originalism implicitly repudiates the theoretical underpinning of another theory of stability in the law, stare decisis.
- If a constitution as interpreted can truly be changed at the decree of a judge, then “[t]he Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” said Thomas Jefferson. Hence, the purpose of the constitution would be defeated, and there would be no reason to have one.
- If a constitution is to be interpreted in light of the evolving standards of decency, why, in most democratic countries, should the highest authority of judicial branch (e.g., the Supreme Court in U.S.) be the ones to have the final say over its interpretation? Is not the legislative branch which is elected, thereby more likely to be in touch with the current standards of decency, and therefore better placed to make such judgments? If originalism is wrong, then Marbury v. Madison—which holding underpins judicial review of constitutionality, that is, the meaning of the constitution—was wrongly decided, and two centuries of jurisprudence relying on it is thereby on shaky ground.
- Sometimes the Ninth Amendment to the United States Constitution is cited as an example by originalism critics to attack Originalism. Self-described originalists have been at least as willing as judges of other schools to give the Ninth Amendment no substantive meaning or to treat it as surplusage duplicative of the Tenth Amendment. Bork described it as a Rorshach blot and claimed that the courts had no power to identify or protect the rights supposedly protected by it. Scalia held similarly: “[T]he Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even afarther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.” Troxel v. Granville 530 U.S. 57 (2000) (Scalia, J. Dissenting). Scalia’s interpretation renders the Ninth Amendment entirely unenforcable and moot, which is clearly contrary to its original intent. However, this is a criticism of specific originalists—and a criticism that they are insufficiently originalist—not a criticism of originalism. The theory of originalism as a whole is entirely compatible with the Ninth Amendment. Alternative theories of originalism have been argued by Randy Barnett that give the Ninth Amendment more practical effect than many other schools of legal thought do.
- Contrary to critics of originalism, originalists do not always agree upon an answer to a constitutional question, nor is there any requirement that they have to. There is room for disagreement as to what original meaning was, and even more as to how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Usually, that is easy to discern and simple to apply. Sometimes there will be disagreement regarding the original meaning; and sometimes there will be disagreement as to how that original meaning applies to new and unforeseen phenomena. How, for example, does the First Amendment of the U.S. constitution guarantee of “the freedom of speech” apply to new technologies that did not exist when the guarantee was codified—to sound trucks, or to government-licensed over-the-air television? In such new fields the Court must follow the trajectory of the First Amendment, so to speak, to determine what it requires, and that enterprise is not entirely cut-and-dried, but requires the exercise of judgment. But the difficulties and uncertainties of determining original meaning and applying it to modern circumstances are negligible compared with the difficulties and uncertainties of the philosophy which says that the constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids; and that the key to that change is unknown and unknowable. The originalist, if he does not have all the answers, has many of them.
- If the people come to believe that the constitution is not a text like other texts; if it means, not what it says or what it was understood to mean, but what it should mean, in light of the evolving standards of decency that mark the progress of a maturing society, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they elect to interpret it. More specifically, they will look for people who agree with them as to what those evolving standards have evolved to; who agree with them as to what the constitution ought to be. If the courts are free to write the constitution anew, they will write it the way the majority wants; the appointment and confirmation process will see to that. This suggests the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.
Arguments opposing originalism
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- If one is then to look at the interpretation (or, meaning), which inheres at the particular time period, the question becomes: why is that reading the essential one?. Or, restated, an essential reading, then, is owing to whom? Is it owing, then, to the meaning derived by the average person at that time? The collective intent of the voters who passed it? Or is it possible that they indeed entrusted the framers with the authority to draft the constitution; i.e., that the intent of the drafters should remain relevant? Originalism faces hermeneutic difficulties in understanding the intentions of the Founding Fathers, who lived 200 years ago (original intent), or the context of the time in which they lived (original meaning). Justice Scalia accepted this problem: “It’s not always easy to figure out what the provision meant when it was adopted…I do not say [originalism] is perfect. I just say it’s better than anything else”.
- Legal controversy rarely arises over constitutional text with uncontroversial interpretations. How, then, does one determine the original “meaning” of an originally broad and ambiguous phrase? Thus, originalists often conceal their choice between levels of generality or possible alternative meanings as required by the original meaning when there is considerable room for disagreement.
- It could be argued (as, for example, Justice Breyer has) that constitutions are meant to endure over time, and in order to do so, their interpretation must therefore be more flexible and responsive to changing circumstances than the amendment process.
- The Ninth Amendment is the exception in that it does establish a rule of constitutional interpretation (“The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”). When interpreted using original intent or original meaning, it clearly protects rights which the founders had not thought to list explicitly—this could be interpreted as a direct rebuke to all Textualist or Formalist legal schools including originalism.
- Originalism allows the dead hand of prior generations to control important contemporary issues to an extraordinary and unnecessary level of detail. While everyone agrees that broad constitutional principles should control, if the question is whether abortion is a fundamental right, why should past centuries-old intentions be controlling? The originalist’s distinction between original meaning and original intention here is unclear due to the difficulty of discussing meaning in terms of specific details that the Constitutional text does not clarify.
- In writing such a broad phrase such as “cruel and unusual”, it is considered implausible by some that the framers intended for its very specific meaning at that time to be permanently controlling. The purpose of phrases such as “cruel and unusual,” rather, is specifically not to specify which punishments are forbidden, but to create a flexible test that can be applied over future centuries. Stated alternatively, there is no reason to think the framers have a privileged position in making this determination of what is cruel and unusual; while their ban on cruel punishment is binding on us, their understanding of the scope of the concept “cruel” need not be.
- If applied scrupulously, originalism requires the country either to continually reratify the Constitution in order to retain contemporary standards for tests such as “cruel and unusual punishment” or “unreasonable searches and seizures,” or to change the language to specifically state that these tests shall be administered according to the standards of the society administering the test. Critics of originalism believe that the first approach is too burdensome, while the second is already inherently implied.
- Originalists often argue that, where a constitution is silent, judges should not read rights into it. Rights implicating abortion, sex and sexual orientation equality, and capital punishment are often thus described as issues that the Constitution does not speak to, and that hence should not be recognized by the judiciary. However, the Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”. Original intent thus calls for just the opposite of what the text of the Constitution and original intent of the founders arguably affirm, creating an inconsistency in the practice of at least one branch of Originalism. The subsequent Tenth Amendment, detailing non-enumerated rights as the sole property of the states and the people, is often cited as the clarification for this inconsistency and the reason why the federal courts have no say in affirming or denying said rights per the Ninth Amendment. Another example is the centrality of the concept of “Person” to the Constitution and the fact that any claim by originalists such as Bork, Scalia, or Thomas that the Constitution does not speak to human rights and gender equality a fortiori reflects a judicial effort to legislate meaning into the term Person; for example, Justice Scalia’s assertion that women’s equality is entirely up to the political branches ignores the use of the term “Person” rather than “Man” in the Constitution, and the common meaning of the term at the time, and instead interprets the Constitution to say that only heterosexual men and male fetuses are “Persons” thus reading silence into the Constitution on a matter on which it is not silent for the purpose of narrowing the Constitution’s meaning. The device of “originalism” is thus used to replace the original intent, the original meaning, and the text itself with Justice Scalia’s subjective view or desires.
Arguments against some of the proponents of Originalism
- Critics argue that originalism, as applied by its most prominent proponents, is sometimes pretext (or, at least, the “rules” of originalism are sometimes “bent”) to reach desired ends, no less so than the Living Constitution. For example, Prof. Jack Balkin has averred that neither the original understanding nor the original intent of the 14th Amendment is compatible with the result implicitly reached by the Originalist Justices Thomas and Scalia in their willingness to join Chief Justice Rehnquist’s concurrence in Bush v. Gore, 531 U.S. 98 (2000). Furthermore, while both Scalia and Thomas have objected on originalist grounds to the use of foreign law by the court (see, respectively, Thompson v. Oklahoma, 487 U.S. 815, 868 (1988), and Knight v. Florida, 528 U.S. 990 (1999)), both have allowed it to seep into their opinions at one time or another (see, respectively, McIntyre v. Ohio Elections Committee, 514 U.S. 334, 381 (1995) and Holder v. Hall, 512 U.S. 874, 904 (1994))