Eric J. Segall · Monday, February 27, 2017, 10:17 am
“It is simply anti-democratic to conceal something as fundamental as the nature of constitutional decision-making — especially if concealment is motivated by the fear that the citizenry wouldn't stand for the practice if it knew the truth. If the Court can't admit what it is doing, then it shouldn't do it.” —Paul Brest, 1981
The doctrine of originalism, whereby judges purport to identify and then rely on the original meaning of the United States Constitution to resolve constitutional cases, is more ingrained in our national consciousness today than at any other time in our history. Six years ago, one of our most liberal justices, Elena Kagan, stated during her confirmation hearing that “we are all originalists.” Prominent professors are proudly proclaiming in our most elite law reviews that “Originalism is our Law.”
President Donald Trump promised to nominate an originalist justice to the Supreme Court, and then followed through on that promise with Judge Neil Gorsuch, who self-identifies as an originalist. At his confirmation hearing, the term “originalism” will no doubt be uttered by every GOP senator trying to win points with his constituency and establish the nominee’s bona fides as the heir apparent to the late Justice Scalia.
This genuflection toward the original meaning of the Constitution is, however, at best misleading and at worst a sham. What the words of the document meant to the people living at the time is just one of many different factors judges use to decide constitutional cases. So-called original meaning almost never drives the results in litigated cases but instead is used by judges to justify results they reached on other grounds. As Judge Richard Posner has written, “there has never been a time when the courts of the United States behaved consistently in accordance with the ideal” described by originalists.
There are strong reasons why judges have never consistently used originalism to decide hard cases. For one thing, if the original meaning of the framers of either the original Constitution or the Reconstruction amendments were taken seriously by today’s judges, we would live in a much different and much worse society. Segregated schools under the law and official governmental discrimination against women, gays, and lesbians would be permissible.