The Activist “Originalism” of the Supreme Court

The Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, handed down yesterday, was as glumly predictable as the Court’s reversal today of Roe v. Wade in Dobbs v. Jackson Women’s Health. Each is a product of the Trump-appointed, Federalist Society-picked majority that applies, with a damn-the-consequences determination, an ideologically conservative and rigidly “originalist” view of the US Constitution, whereby its text must be interpreted consistently with how it was understood at the time it was written.

But this is ideology in the guise of a methodology, and we should understand it as such.

Briefly, in Dobbs the question before the Court was whether a Mississippi law that prohibits abortion after the 15th week of pregnancy violates any of several provisions of the Constitution, including but not limited to the protection of “liberty” guaranteed by the Fourteenth Amendment.

In Bruen, the question was whether a hundred-year-old New York State statute that requires that a person who wants to carry a concealed firearm have a good reason for doing so violates the Second Amendment’s injunction that “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [Bad punctuation in the original.]

Ironies and inconsistencies abound. In the case of Dobbs, the fifty-year old precedent of Roe v. Wade is shredded, whereas in Bruen, the majority opinion clings to the 2008 precedent of District of Columbia v. Heller as though it were holy writ. In the case of Dobbs, the Court finds that the right to abortion is not “deeply rooted in the Nation’s history and tradition,” whereas in Bruen, it concludes not that there was a tradition of carrying of guns in public during the historical window of time (roughly 1791 to 1868) that the Court finds relevant, but that statutes prohibiting the carrying of guns were more the exception than the norm in that time frame, by which standard, since laws prohibiting abortion before viability (“quickening” in the parlance of the times) were essentially unheard of in the US before the late 19th century, Roe would still be the law of the land.

And then there’s the most obvious contradiction, which unfortunately doesn’t rise to the level of constitutional analysis: Dobbs upholds the states’ ability to legislate in the interest of protecting life, while Bruen deprives them of it.

How could the same juristic approach, not to mention the same Constitution, possibly result in both these rulings?

The answer, of course, is “originalism.”

The precedent for the Bruen decision is District of Columbia v. Heller, analyzed here shortly after its issuance in 2008. It is perhaps the most important majority opinion written by the late, great originalist himself, Antonin Scalia. To the amazement of many then and now, Heller held that the Second Amendment when it was written was not, as it appears to be, about the need to be ready to have civilians form a “militia,” there being no standing army at the time, but about the individual’s right to keep and bear arms in self-defense, an individual right, the ruling said, as fundamental as the rights of freedom of speech and the free exercise of religion.

In keeping with standard originalist methods, Scalia’s opinion in Heller includes an exhaustive examination of the historical meaning of the phrase “keep and bear arms” in the Second Amendment. The author of the majority opinion in Bruen, Clarence Thomas, reminds us of this right up front:

“Under Heller, …to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” (Emphasis added.)

But to anyone sensitive to language, in particular lawyers who are called upon to read and interpret it, that phrase, “the Nation’s historical tradition” is full of verbal quicksand. Or to use a different metaphor, it’s the verbal equivalent of a Swiss army knife that can mean what the user wants it to mean.

The general schema of judicial decision-making is of disinterested technocrats applying a set of unchanging rules, both procedural and substantive, to evaluate competing claims and reach conclusions. Theoretically, ideology has no place in this process, except the ideology implicit in a statute or, in this case, a constitution. The analogy favored by Chief Justice Roberts is of an umpire calling balls and strikes — total objectivity to the limits of human perception.

Of course, this is a wishful fiction, because both the umpire and the jurist inevitably perceive the dimensions of the strike zone differently, depending on how he or she was trained and by whom, his or her own experience at batting or pitching, and, perhaps unconsciously, how he or she feels about the team or even the player at the plate.

Add to these personal proclivities the originalist’s task of discerning what counts as “history” or constitutes a “tradition” in a country as vast, old, and diverse as ours, and you have fertile ground for the sort of ideologically driven, result-oriented decision-making that we see in Dobbs and Bruen.

The problem with the originalism that underpins these rulings is that it assumes we are the same people we were in the 17th and 18th centuries, and that the sorts of people who bear arms or seek abortions are the same as they were then. In the case of Bruen, it willfully ignores two centuries of human experience with guns, vast technological changes in the guns themselves, and an entire century in which jurisprudence and statutory law took a different view of the Second Amendment than that imposed on us by Scalia in Heller. It saddles us with limits on gun regulation that might have been appropriate (though redundant) in a rural society with no local law enforcement and little structural security, but which are at best antique and at worst reckless in an era of vastly increased population density, local police forces, rampant disinformation, mental illness, and a massive and powerful gun industry.

The originalists’ reply to all this is that none of it matters, and that the Justices have no choice but to get in their jurisprudential time machine and pretend they are living in 1791, when the Second Amendment was ratified (or, at the latest,1868, when the Fourteenth Amendment, which is what technically requires the states to observe the Bill of Rights, was adopted).

But tricked out in hard-nosed verbiage about history and tradition and led by proud conservatives who see themselves, like William F. Buckley, standing athwart history and yelling “stop!”, the originalist doctrine is deeply naïve, in that it ignores the indisputable fact that any textual analysis that depends on such broad and vague criteria as a nation’s “history” and “tradition” —each word an enormous, empty sack that must be filled with something to have any meaning — requires jurists to select among endless narratives and innumerable sources to decide whose history, whose tradition, whose reality we are talking about, both then and now.

Thomas’s opinion in Bruen is a diagram of this kind of selective history, dismissing contemporaneous statutes that contradict his forgone conclusion – from Texas, no less – as “outliers,” while glibly asserting that “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”

At the margin of most court opinions, and in particular those construing the meaning of the Constitution, lies a range of individual judgment. This is why we have judges in the first place. Otherwise, computers could render judicial decisions, and in some cases, perhaps should. Any thoughtful historian will admit that the very idea of a single, objective “history” or “tradition” of a country as complex as ours, as though it were as ascertainable as the chemical composition of a stone, is laughable. And yet those empty sacks are the foundation of the opinions that Thomas and his conservative majority colleagues are churning out, having filled those sacks with content of their own selection, which is to say, having filled them with their own preconceptions and prejudices.

All jurisprudence is ultimately political, and our courts, whether we like it or not, are actively and powerfully engaged in shaping our society. If we learn anything from the coming years of the Supreme Court’s conservative hegemony, it should be that when we vote, we are voting not just for the presidents who appoint judges, or for the senators who confirm them, but for or against a way of life.


2 thoughts on “The Activist “Originalism” of the Supreme Court

  1. We’ll said. The “originalist” smokescreen is just a devious way for Thomas and conservatives to justify changing established law to fit their ideology. Voting matters, as well as majorities using their power effectively.

  2. Pingback: The Coming Cat 5 Presidential Election | Mortal Coil

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