Andrew Lanham on Supreme Court Originalists
Michael Ramsey
In The New Republic, Andrew Lanham: The Supreme Court’s Originalists Are Fundamentally Wrong About History. From the introduction:
In early July 1985, U.S. Attorney General Edwin Meese launched a legal revolution from the tony confines of the Sheraton Washington Hotel. Speaking to the American Bar Association, he argued that “far too many” Supreme Court decisions had devolved into mere “policy choices,” driven by the justices’ personal preferences, rather than following “constitutional principle.” In a fiery line that Meese skipped when he read the speech but that appeared prominently in the published version, he said the court’s turn to policymaking was most evident in “the radical egalitarianism and expansive civil libertarianism of the Warren Court.” The Warren court had, among other things, desegregated public schools in Brown v. Board, guaranteed equal voting rights in Reynolds v. Sims, and protected the right to contraception in Griswold v. Connecticut. Now, in 1985, Meese labeled the court’s “egalitarianism” a “threat” to the proper legal order.
Thirty years later, after Donald Trump appointed a conservative supermajority to the Supreme Court, originalism has come to rule us all. Through the court, originalism shapes our social, political, and economic systems, from global problems like climate change to national issues like voting rights to deeply personal questions like what kind of medical care a doctor can provide.
Originalism has been subjected to a variety of searching critiques. The most common focuses on the difficulty—or even the outright impossibility—of discovering what a constitutional clause might have meant centuries ago, based on a thin, fragmentary, sometimes puzzling, and often contradictory historical record. I’ve made the same point about the constitutional amendments passed after the Civil War. But that critique, though it’s quite compelling, is by now well-trodden ground. The historian Jonathan Gienapp’s new book, Against Constitutional Originalism: A Historical Critique, injects a fresh, powerful new argument against originalism into the debate.
The book is careful and thorough—chock-full of historical evidence—but Gienapp’s argument is ultimately straightforward. Founding-era Americans didn’t think of the Constitution as the kind of thing that had a fixed meaning. Therefore, it wouldn’t have made sense to look for unchanging original meanings that were fixed for all time in the Constitution’s text. So if one would like to be an originalist, that original history says not to be an originalist. “When we recover Founding-era constitutionalism,” Gienapp writes, “we discover how deeply at odds originalism is with the history it claims to recover.” His book reveals “how un-originalist originalism turns out to be.”
Aside from occasional snark, this is actually a good brief intellectual history of originalism and of Professor Gienapp's critique. But as for the Gienapp critique, I'm confident that Founding-era Americans did think at least some parts of the Constitution had a fixed meaning (like, for example, that each state gets two Senators). And once you concede that, then it's just a debate over how much they thought was fixed.