What is the Judicial Doctrine of Originalism?

The following are excerpts from the Statement of Lawrence B. Solum, Carmack Waterhouse Professor of  Law at Georgetown University Law Center, given at the Senate Hearings on the nomination of Neil Gorsuch to the United States Supreme Court. [Bracketed and italicized text is added by me and is not part of Professor Solum’s statement]

What is Originalism?

Judge Gorsuch is an originalist and a textualist, but what does that mean? The core of originalism is a very simple idea. In constitutional cases, the United States Supreme Court should consider itself bound by the original public meaning of the constitutional text.

Judge Gorsuch believes that the meaning of the constitutional text is its public meaning—the ordinary or plain meaning the words had to the public at the time each provision of the Constitution was framed and ratified. If the words employed are technical, the technical meaning must be accessible to the public. [i.e., at the time the words were written]

The original public meaning of the text is the meaning that the words had then—and not necessarily the meaning that they have today. For example, Article Four of the Constitution refers to “domestic violence” but in the Eighteenth Century that phrase did not refer to spousal abuse. It referred to riots and insurrections within a state. When we interpret Article Four, we should understand the words as they were used at the time the Constitution was written. What is called “linguistic drift” is not a valid method of constitutional amendment.

The Supreme Court today should consider itself bound by the text. The Court does not and should not have the power to amend the text on a case-by-case basis. It should decide constitutional cases in a way that is consistent with the original public meaning of the text.

Originalist judges do not believe that they have the power to impose their own values on the nation by invoking the idea of a “living constitution.” Instead, they believe that the proper mechanism for changing the Constitution is by amendment through the process provided in Article Five—as has been done twenty-seven times. [As George Mason University economist Walter E. Williams has said, “Would you want to play poker with someone who insists that the rules of the game be “living?”]

[In the next part of his statement Professor Solum dispells the many myths that have been associated with Originalism. He argues that originalism is not the same as original intent. It matters little what those who wrote the words of the Constitution intended, because it is a tricky business for us to even know what they intended nor whether they all intended the same thing. It is the words they used and public understanding of those words at that moment that matters. This is how courts construe contracts, not by what the parties may have meant to say, but by what they actually did say in their contract. Professor Solum dispels the myth that originalism is inconsistent with changing circumstances, or that it is inconsistent with prior precedent. He acknowledges that originalism would gradually move the law away from prior cases that are inconsistent with the text of the Constitution. That is a feature and not a bug of originalism.]

Originalism is in the Mainstream of American Jurisprudence

Is originalism somehow outside the mainstream of American jurisprudence? The answer to that question is an emphatic “no.” The idea that judges are bound by the constitutional text is very much in the mainstream of American legal thought.

…giving judges the power to override the Constitution and impose their own vision of constitutional law is dangerous for everyone.

The Case for Originalism

Originalism is the simple and highly intuitive idea that the Justices of the Supreme Court are bound by the constitutional text. The Justices, like all federal judges and the members of this Senate, take an oath to perform their duties under the Constitution of the United States. There are good reasons for the obligation of constitutional fidelity represented by the oath.

First and foremost is the rule of law. John Adams is famous for insisting on the “rule of law and not of men.”1 The commitment to the original meaning of the constitutional text is the best way to ensure that the awesome power entrusted to our Supreme Court—the power to have the ultimate say in constitutional cases and declare that statutes passed by Congress are unconstitutional—is the rule of constitutional law and not the rule of the men and women appointed to the Court.

What is the alternative? Living constitutionalists believe that the Supreme Court has the power to amend the Constitution by judicial fiat. [Citizens and their lawyers should be able to discern the likely outcome of a case before a court soley on the basis of the law and the original public meaning of the written words. They should not be required to study each judge’s personal politics, whims, or eccentricities to gain perspective on the strength or weakness of their case.] 

There is much more in Professor Solum’s statement. You might want to bookmark it so you can read the whole thing when time permits.

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