Originalism is Doomed to Failure. Will it Destroy Democracy First?

Louis Brandeis was among the jurists who worked to turn the 14th Amendment's equal protection guarantees from a club in the hands of oligarchs to a guarantor of rights in a democracy. That legacy is threatened. 

Editor's Note: This is the second part of a two-part essay. Read Part I here. 

After Jefferson left the presidency, he set down the following reflection:  “I know  . . . that laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”[i]

Such a view is anathema to constitutional originalists who now dominate the Supreme Court.  But the vision of Jefferson — and Lincoln — the vision of a “living Constitution,” would be integral to the movement in post-Civil War jurisprudence led by some consequential people, many of them lawyers:  lawyers like Oliver Wendell Holmes, Jr., and Louis Brandeis.  This would be the movement that would triumph in the second and third presidential terms of Franklin Roosevelt and reach high tide by the 1950s and 1960s with the Warren Court.

In the late nineteenth-century, Supreme Court decisions were typically reactionary; the Court went out of its way to protect the wealthy and the powerful and to squelch attempts by reformers to ameliorate harsh economic and social conditions.  Attempts at reform were often ruled “unconstitutional” via strict construction.

But the Court was also willing to use broad construction to achieve the very same goal: protection of property.

It twisted the language of the Fourteenth Amendment by defining corporations as “persons,” thus voiding economic regulations that might “deprive” them of their property without due process of law.

And it used “due process” in a way that Roger Taney would have liked.

Among the principles that make our American system of law what it is, due process is one of the most slippery.  It is meant to protect, but that begs the underlying question of what — or who — it is that is being protected.

Taney, for instance, called black people “merchandise” — property whose owners were protected by due process.

Conversely, to define a corporation as a “person” was equally cynical.

It turned a blind eye to new realities:  organizations with the power to run roughshod over the rights of real people, the people for whom the Constitution was made.

Conservative justices developed the doctrine that others would later call “substantive due process” — a doctrine pliable enough to mean whatever they wanted it to mean, a doctrine they typically used to support the notion that property rights should prevail over other sorts of rights.

The real-life consequences of this doctrine were perfectly obvious.  But conservative justices evaded the reality of what they were doing:  they hid behind make-believe concepts of archaic formalism as they sided with the wealthy and the powerful.

But a powerful movement to bring constitutional usages up to date and to make them egalitarian was being fought by jurists like Holmes, who laid down a soon-to-be famous maxim — “the life of the law has not been logic: it has been experience.”[ii]

The law, he argued, should be understood as nothing but a kind of prediction regarding what a judge or a jury will do.  And what they do will be influenced by values, whether conscious or unconscious.

“The training of lawyers,” Holmes said, “is a training in logic,” which can lead to a “longing for certainty.” “But certainty,” he warned, is “illusion, and repose is not the destiny of man.”  Legal controversies are “battle grounds where the means do not exist for determinations that shall be good for all time.”  The decisions of courts, Holmes said, “can do no more than embody the preferences of a given body in a given time and place.  We do not realize how a large part of our law is open to reconsideration upon a slight change in the habit of the public mind.”[iii]

His distaste for originalism can be seen in the following statement:  “We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light that it throws upon the present.”[iv]

Even more consequential in this line of thinking were the words and deeds of Louis Brandeis. “The law,” he proclaimed, has a “tendency to lag behind the facts of life,” and courts routinely “ignore newly arisen social needs.”[v]

So he made it his business as a freewheeling social reformer to speed up the process of bringing the law up to date.

His dictum that “the logic of words should yield to the logic of realities” directly challenges the current jurisprudence of Thomas and Alito and Gorsuch and Kavanaugh and Barrett.[vi]

In a case of epochal importance — Muller v. Oregon — Brandeis argued before the Supreme Court in 1908 that a law in Oregon establishing a ten-hour workday for women deserved to be upheld because facts proved that longer working hours were harmful to their health and safety.  Just a few years earlier, the Court had struck down state laws restricting working hours as abridgements of the sanctity of “contracts.”

But Brandeis prevailed in 1908 by filing a brief containing only two pages devoted to legal citations and over a hundred pages to statistics.

He won.

The same principle would be used by the Warren court in its 1954 Brown v. Board of Education decision.   As partial proof that segregated public schools violated the Fourteenth Amendment’s equal protection clause, the Court considered a study by the Swedish social scientist Gunnar Myrdal demonstrating that school segregation caused deep psychological and developmental damage for African American children.

By 1954, when the Warren court ruled, the great turning point in these controversies had arrived.

It arrived in 1937, when President Franklin D. Roosevelt proposed to expand the size of the Supreme Court in light of its patent obstructionism.

In the midst of the Great Depression — the greatest national emergency since the Civil War — the Court vetoed one congressional relief measure after another, and FDR had had enough.

Conventional wisdom ever since has viewed FDR’s “court-packing” scheme as a supreme blunder.

It was nothing of the kind:  it was as justified as Lincoln’s court-packing threat in the aftermath of Dred Scott.

The Court’s obstructionist rulings used a logic so twisted that one dissenting Justice called the majority’s constitutionalism “tortured.”  The majority used crabbed and far-fetched reasoning to cut back the scope of the Constitution’s grant to Congress of the power to regulate interstate commerce.

And FDR had had enough.

On March 4, 1937, he told the audience at a Democratic Party victory dinner that he was faced with a “judicial pronunciamento” according to which “there is no legal power anywhere” to deal with the nation’s gravest problems.  He cited the high court’s opinions killing one New Deal measure after another.  Then he said that “I defy anyone” to read such opinions and “tell us what we can do . . . in this session of Congress with any reasonable certainty that what we do will not be nullified as ‘unconstitutional’.”[vii]

More decisively than anyone had previously done, he was arguing that the Constitution’s language must be brought up to date in its applications.

In 1935, he had complained that the Court majority was applying “horse and buggy” logic to the Interstate Commerce clause.  Now, in 1937, he cited the regional catastrophes of flooding and region-wide dust storms to ridicule “originalism.”

“The Ohio River and the Dust Bowl,” he said, “are not conversant with the habits of the Interstate Commerce Clause.  But we shall never be safe in our lives, in our property, or in the heritage of our soil, until we have somehow made the Interstate Commerce Clause conversant with the habits of the Ohio River and the Dust Bowl.”[viii]

Five days later, in a radio “fireside chat,” he told Americans that the Framers of the Constitution must have known “that in succeeding generations many other problems then undreamed of would become national problems.”  He called for “judges who will bring to the Courts a present-day sense of the Constitution” — not judges who were living in the past.

He accused the Supreme Court of “reading into the Constitution words and implications which are not there, and which were never intended to be there.”  And he said that “we must take action to save the Constitution from the Court and the Court from itself.”[ix]

Though his court-packing legislation was defeated in Congress, FDR’s tactic succeeded:  the court-packing threat caused one Supreme Court justice to retire and another one to switch sides.

In one landmark decision after another, the Court began construing the Interstate Commerce Clause in very broad terms — in terms so broad that the precedents set would be used by John F. Kennedy and Robert Kennedy in 1963 when they grounded the legislation that would shortly become the epochal Civil Rights Act of 1964 in the Interstate Commerce Clause, and the Supreme Court validated that principle in the landmark case of Heart of Atlanta Motel, Inc. v. United States, which was handed down in 1964.

The new “equal rights revolution,” under way since the Brown decision, spread quickly through Griswold v. Connecticut and Roe v. Wade, and a whole new way of life was engendered, a way of life that today’s American majority insists upon defending.

One way or another, originalism must fail, because an enraged American majority will never stand for its effects in real life.

Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were given the power that they wield through partisan and ideological court-packing.  The packing was achieved over decades, but its endgame was engineered by one of the most ruthless political bosses in the history of Congress, Mitch McConnell.

He refused to take action on President Barack Obama’s valid nomination of Merrick Garland to the Supreme Court because the nomination was made in an election year.   But then he shoved the nomination of Barrett through the Senate like a log through a sluice in the final months of an election year.

Just as simple and as hypocritical as that.

Arguably, McConnell was guilty of violating the Constitution when he blocked the Garland nomination.

Shouldn’t there have been a way to prosecute him for it?

The packing of the Supreme Court was completed by President Donald Trump, who, after losing the popular vote, got to nominate no less than three Supreme Court justices who will serve on the Court for life.  They will use “originalism” to force their will upon the rest of us; they will force us to live by the usages of other centuries — as construed by themselves, of course — no matter what the exigencies of contemporary life or the development of American cultural values may happen to be.

They will force upon us the prejudices and the presuppositions of people who are dead and rotted in their graves.

Thomas and Alito and Gorsuch and Kavanaugh and Barrett were groomed by the ideological Federalist Society— an organization of conservative legal theorists — who praise one another at the “conservative conversation table” at Washington, D.C.’s Cosmos Club, as their protégés drive our nation into greater and greater dysfunctionality, driving us perhaps to a grave constitutional crisis, a crisis of legitimacy.

After the toppling of Roe v. Wade, Justices Kagan and Sotomayor reflected that the stature of the Court may be sinking below the possibility of redemption.  Senator Elizabeth Warren declared that the power of a president who loses the popular vote to pack the Supreme Court with justices who overthrow rights that a majority of Americans regard as essential can no longer be tolerated.

Never since the scandal of the Dred Scott decision has the Supreme Court’s power of judicial review been so open to challenge, and the time may be coming when Americans will have to construct a new constitutional system to perform that function. 

It is interesting to note that our system of judicial review has been rejected by most other democracies.  The most prevalent system is the “Kelsen system,” so-named for an Austrian jurist named Hans Kelsen, whose method is embodied in 96 judicial tribunals throughout the world.

The Kelsen method writes the power of judicial review into a nation’s constitution rather than deriving it from Common Law.  It vests the power of construing the constitution in a constitutional court whose justices do not serve for life.  Constitutional questions may be brought before the court at any time.  The system recognizes that constitutional questions can and will be decided in the light of political and ideological values.  By limiting the terms of the judges on the constitutional court, the Kehlsen system permits changes in constitutional rulings when political majorities demand it.

America was once in the vanguard of the modern world movement for democracy.  Lincoln called us the “last best hope of earth.”  Until our experiment succeeded, democracy had a terrible reputation for weakness.  The democracy of Athens had been short-lived, and when de Tocqueville wrote his great study Democracy in America, the question was whether a democracy of continental size could survive.   Lincoln viewed the Civil War as a test to resolve that question.  Thanks to him, government of the people, by the people, for the people did not perish from the earth.

But though America was once in the vanguard of modern democracy, we can no longer claim that distinction.  Other democracies surpass us in the strength, flexibility, and wisdom with which they are established.

It can now be argued that the United States of America has become the most ill-structured democracy on earth.

This is not entirely accidental in historical terms.  Because our Founders did not wish to create a democracy.

They were creating a republic, and they disavowed the intention to create a pure democracy.  It was only through many long decades of development that the United States evolved into a great democracy.

The originalists intend to turn back the clock and stamp out majority rule.  Their “Independent Legislature” Theory is not a mere aberration.  It is inherent to a movement that seeks to overturn democracy as we know it.

The Founders were creating a republic, which is to say a self-governing polity without a monarch.

The Founders were classicists, and many of them took their political definitions from Aristotle’s Politics, as applied later on to mixed-government theory by the Greek historian Polybius, whose writings were rediscovered in the course of the Renaissance.

According to Aristotle, power in society can be gathered into three and only three elemental forms:  power in the hands of one person, power in the hands of a few people, and power in the hands of many people.  Power in the hands of one person was monarchy, power in the hands of a few was aristocracy, power in the hands of many was democracy.

Three basic gatherings of power — three and only three, the “one,” the “few,” and the “many.”

Aristotle observed that any one of these three power aggregations could degenerate and become corrupt.  Monarchy could degenerate into despotism, aristocracy into oligarchy, democracy into mob rule.   None of them could last very long on its own without becoming corrupted.

It was Polybius — impressed by the workings of the Roman republic — who observed that an ideal mixed-polity ought to be created, a polity that would contain all three of these power aggregations and balance them against each other so that none could overwhelm the others.

The Romans’ plebeian assemblies embodied rule by the many; the patrician Roman Senate embodied rule by the few; and the Roman Consuls — well, since there were two of these executive magistrates, the Roman constitution fell short of theoretical perfection.

The eighteenth-century British believed that for the first time in history their evolved constitution got it right:  their triad of king, lords, and commons was a classical embodiment of one, few, and many.

Is it any wonder that America’s Founders would hit upon the triad of President, Senate, and House of Representatives?

They were not creating a democracy.  They were creating a republic with a democratic element, but filtering mechanisms — state legislatures, an obstructionist Senate, a quirky and ill-conceived Electoral College, and not least of all property requirements for voting that were put in place by the states — would keep the vulgar masses in their place.

Is it any wonder that the modern American democracy we take for granted could be yanked straight backward into this archaic strait-jacket of constitutionalism by Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett?

What recourse will we have if they do it?

America is riven by cultural and tribal animosities that are now so severe that vague talk of civil war is in the air.

What will happen if the Supreme Court permits the 2024 election to be stolen by means of the Independent Legislature Theory?

What recourse would the American majority have?  What on earth would we be able to do?

“Originalism” is the latest in a series of doctrines that seek to inject false certitude into jurisprudence.  The theories of “strict construction” and “original intent” preceded it.  Both of those theories have lapsed because they failed to withstand careful scrutiny.

Originalism, too, will fail.  But before it does, how much damage will it do?

Originalism has been given a varnish of intellectual respectability due to formalistic games that intellectuals sometimes play in academia.  False certitude is an affliction that plays upon the insecurities and conceits of the human mind.  Instead of living with approximate certitude — instead of living with ambiguity — pedantic people seek absolutism in one form or another.

In the 1920s, a once-influential and now providentially disregarded movement in philosophy called Logical Positivism sought absolute clarity in words.  Does this sound familiar?  No philosophizing, in the view of these people, could be legitimate if it lacked the verbal precision that precluded any kind of ambiguity.

So much for nuance.

These people wanted nothing suggestive — nothing flexible — in the words they were using, so they set down their views in unreadable texts whose labored composition makes them literary nightmares.

Among the few people who read these texts anymore are intellectual historians.

In the academic study of literature, something comparable happened by the 1930s.  A movement calling itself the “New Criticism” insisted that commentators must limit themselves to the text and only the text of a novel or a poem or a play.

Anything else — like the background or the life experiences of the authors — should be viewed as irrelevant.

Only the words on the page are what matter, the New Critics said — words that subsist as pure art.

Does this sound familiar?

And so it was that a movement has arisen in the world of law that rules out any other factor except . . . words on a page.

This is “Textualism,” with its derivative “Fixation Thesis,” which holds that the meaning of the Constitution’s words became fixed at the time that they were written.   This theory arose in academia — a world in which games of semantics and semiotics are played by intellectuals with nothing else better to do.

After Textualism was propounded by law school professors, it was put to quick use by the busy zealots of the Federalist Society.

In the 1980s, Antonin Scalia tried to bring this clap-trap down to earth by arguing that words in the Constitution have the “ordinary” meaning that they had for the “reasonable” people who wrote them.

But their meaning should still be fixed, he explained, and people like himself have the power to fix them.

The never-ending quest for total certitude was attacked long ago by the philosopher William James in his method of Pragmatism.

His words have a robust quality that merits an extended quotation.  “A pragmatist,” wrote James,

turns his back resolutely and once for all upon a lot of inveterate habits dear to professional philosophers.  He turns away from abstraction . . . , from verbal solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins.  He turns towards concreteness and adequacy, towards facts, towards action and towards power . . . . [Pragmatism] means the open air and possibilities of nature, as against dogmas, artificiality, and the pretence of finality in truth.[x]

In his embrace of the approximate, James gave his blessing to the movement under way in jurisprudence, the movement that would gradually reach its consummation almost half a century later in the thinking of people like William O. Douglas.

Originalism is probably doomed to fail — and fail it should — because resistance to its tyranny will topple it.

But what form can that resistance take?

That is a question fraught with danger for our democratic republic.  The Supreme Court is considering a case that could force the Independent Legislature Theory upon us.  A decision may be handed down within a year.

The result could be a crisis so profound that it could break our polity asunder.  If gerrymandered legislatures trample the will of the majority — especially in the aftermath of what Donald Trump, John Eastman, and Rudy Giuliani tried to do in the election of 2020 — our crisis could assume revolutionary proportions.

There is reason to hope that a strong dose of sanity will save us in time — that common sense may pull the Supreme Court back from the brink.

Perhaps Chief Justice Roberts will convince at least one of the originalists — and it would only take one, maybe Kavanaugh — to stop playing with fire.

If Roberts, who is something of a maverick, can convert just one other justice, then the crisis we are facing may pass.

The deeds of an earlier Supreme Court maverick are much on people’s minds these days.  We are speaking of Hugo Black, who some people are now beginning to call the “first originalist.”  Some call him a “textualist.”

But his jurisprudence was much more complicated than that.

His behavior was sui generis — he blended contradictory tendencies in law to form his own pastiche.

Black was a fervent supporter of the New Deal when he served in the Senate.  He belonged to the Klan when he was young — he hailed from Alabama, so the ways of local politics swayed his early behavior — and yet he demonstrated no bigotry at all after leaving the Klan.   He was deemed by many people in the 1930s to be an ardent liberal.

In matters constitutional, he tended toward literalism.  When it came to free speech, he avowed that the text of the First Amendment — “Congress shall make no law . . . abridging the freedom of speech” — must be taken absolutely; “no law,” he insisted, “means no law.”[xi] So he refused to validate the famous maxim of Oliver Wendell Holmes — that no one has a right to yell “fire” in a crowded theater.  Holmes had voted to uphold the repressive Espionage Act of 1917 in the case of Schenk v. United States.

Hugo Black wanted none of that.

He was also an incorporationist, and he insisted that the Fourteenth Amendment applies the entire Bill of Rights to the states.  In embracing this doctrine, he was making assumptions about the amendment:  he was stretching its language to mean what he essentially wanted it to mean.

In his own mind, however, he was doing nothing of the kind.

He convinced himself that his interpretation of the Fourteenth Amendment was grounded in original intent.

In Adamson v. California he proclaimed in 1947 that he was upholding “what I believe was the original intention of the Fourteenth Amendment — to extend to all the people the complete protection of the Bill of Rights.”

“To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced,” he continued, “and if so to what degree, is to frustrate the great design of a written Constitution.”[xii]

Black was dissenting in the Adamson case because in his opinion the Supreme Court was not extending the Bill of Rights far enough.

He wanted an expansive application of the Bill of Rights, because in his opinion no one has the right to say “to what degree” its protections should extend.

They should protect us to the maximum extent, and their meaning ought to be expansive.

And yet two decades later, Black insisted that the Bill of Rights must be interpreted strictly.  He dissented from Griswold v. Connecticut.  “Privacy,” he wrote, “is a broad, abstract, and ambiguous concept,” too ambiguous by far to be covered in the written Constitution’s “plain meaning.”[xiii]

And this meaning ought to be restrictive.

In other words, Black was deciding for himself “to what degree” the First Amendment should apply.

And that was just what he had warned other people never to do.

Here is the verbatim text of the First Amendment:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now judge this text for yourself.

This amendment is pervaded by a theme:  the right to associate.  The obverse (or so it could be argued) is the right to abstain from communicating or associating with others if that is what we wish:  i.e., the right to privacy.

It is all a matter of deciding for ourselves to what degree — if at all — we interact.

Is that not the sense of it?

Think about it.

This is jurisprudence:  a world in which people change their minds as they deny they are doing it, ponder ideas that keep moving and shifting, and convince themselves that they are capturing a beautiful clarity that vanishes the more they try to grasp it.

The Independent Legislature Theory is looming just over the horizon.  If five opinionated people uphold it, it becomes the law of the land.

And that will force the crisis upon us.

The question as to how we might be able to rescue ourselves will depend upon what the Court does.