Originalism Must Necessarily Be Applied Selectively, and Not in Every Case
David Weisberg
A recent post by Prof. Michael Ramsey notes that Prof. Richard Fallon has published a paper, entitled “Selective Originalism and Judicial Role Morality,” with an abstract that asserts: “The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that … [i]n large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings.”
Prof. Ramsey makes two responses. First, much of the precedents and assumptions that originalist Justices deal with are non-originalist in nature, and Justices who feel bound by precedent therefore sometimes put originalism aside. Secondly, some opinions that seem to abandon originalism may simply be unpersuasive originalism, rather than instances of non-originalism.
With great respect, I think Prof. Fallon is wrong to think that one would expect originalist Justices to apply originalism in every case interpreting the Constitution, and I think Prof. Ramsey is wrong to think that the selective application of originalism can be explained, e.g., by noting that even originalist Justices must deal with non-originalist precedents. What is true, I submit, is that originalism must as a matter of logical necessity be applied only in very specific circumstances, and not in every case.
Consider two constitutional texts:
“[T]he right of the people to keep and bear Arms, shall not be infringed.”
“No Bill of Attainder … shall be passed.”
I submit there is no reason to believe that any of the words or phrases in the first text have a meaning today that differs from the meaning they had when the 2nd Amendment was adopted in 1791. All those words are used today. Trees can bear fruit; people can bear arms. Moreover, if one presumes that those words and phrases all might have current meanings different from their so-called time-dated meanings, bad things happen.
Justice Scalia entertained just such a presumption in his “legacy opinion” for the majority in D.C. v. Heller, 554 US 570 (2008). The presumption is manifested, e.g., in his discussion of the meaning of “Arms”. (554 US at 581.) He immediately cites Dr. Johnson’s Dictionary, published in 1773, and refers to the definition of “arms” contained in that work. He similarly refers to that same dictionary to ascertain the meaning of “keep” (554 US at 582), and “bear” (554 US at 584).
If one presumes that the meaning of the words and phrases in the 2nd Amendment must be ascertained with reference to literary materials published roughly contemporaneously with that amendment, that presumption generates what I have called (here) the Paradox of Originalism:
If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.
If Justice Scalia had conscientiously and consistently applied his original-public-meaning methodology, he never would have completed his Heller opinion, because he would have had to ascertain, using contemporaneous literary materials, the meaning of the words in Dr. Johnson’s definition of “arms,” and then he would have had to ascertain, using contemporaneous literary materials, the meaning of the words that define the words in Dr. Johnson’s definition, etc., ad infinitum. The presumption Justice Scalia entertained generates an infinite regress, and that’s a bad thing.
Now consider the phrase “Bill of Attainder.” That is a phrase that is never used today, except by lawyers, judges, and scholars who have some special interest in construing Article I, Section 9, Clause 3 of the Constitution. I’d guess that law school graduates in 2023 will not have spent one second engaged in classroom discussions of bills of attainder. It’s probably been more than two hundred years since any legislator proposed anything called a “bill of attainder.” So, because the phrase has long been virtually absent from legal discourse, we can today have no clear idea what the phrase meant in 1789. Therefore, it makes perfect sense to resort to literary materials in use around the time the Constitution was adopted.
The difference between the two instances is this: we may properly rely on contemporaneous literary materials regarding “Bill of Attainder” because that phrase has fallen almost completely out of use—it is an historic relic. So, we rely on contemporaneous materials not because the phrase was made part of the Constitution long ago in 1789, but because today we do not have any clear idea what it means, and we therefore certainly do not know what it meant in 1789. In contrast, nothing in the operative clause of the 2nd Amendment—not one word or phrase—is not regularly used today. Therefore, using contemporaneous literary materials to define words and phrases in the operative clause can be justified only if one adopts the presumption that, due to the Constitution’s antiquity, every word or phrase might have a time-dated meaning different from current meaning. And it is precisely that presumption that generates the Paradox of Originalism.
In sum, the originalism practiced by the late Justice Scalia must necessarily be used selectively. It may properly be used only when we encounter a word or phrase in the Constitution that has fallen virtually into desuetude (“Bill of Attainder”) or has a meaning that on its face must differ radically from current meaning. (E.g., “high Crimes and Misdemeanors” in Article II, Section 4. In today’s legal context, a misdemeanor is low on the scale of offenses; a “high misdemeanor” is, to us, an oxymoron.) If, in contrast, all the words and phrases in a constitutional text are familiar to us and readily understandable in their context, an application of Justice Scalia’s version of originalism generates an infinite regress.
ADDED:
One last point: If the methodology employed by Justice Scalia in Heller generates an infinite regress, what kind of argument should be used to counter Justice John Paul Stevens’ (flawed) understanding of the 2nd Amendment? The simplest, most convincing argument has nothing to do with Dr. Johnson’s dictionary. Rather, it is this: If Justice Stevens’ understanding of the amendment is correct—that is, if the amendment is equivalent to: “The right of the people to keep and bear Arms, while they serve in the well regulated Militia of a State, shall not be infringed”—then why didn’t the drafters settle on precisely that language? Surely, they had the skill to so formulate the amendment if they wished to do so. That they did not do so indicates very clearly that that formulation is not what they had in mind.