What on Earth Is Originalism?

The latest nominee to the Supreme Court of the United States, Judge Amy Coney Barrett, proudly proclaims that she is an “originalist.”

Why this matters so much

That is not an esoteric issue, but actually matters greatly. If confirmed, Justice Barrett would get to vote to overturn the Affordable Care Act in a case that will be heard before the U.S. Supreme Court one week after the November 3rd election.

Overturning the law would put tens of millions at risk of inadequate or no health coverage in the midst of the COVID 19 pandemic in the United States.

In her October 12, 2020, opening statement at the first U.S. Senate nomination hearing, she credited her mentor: “Justice Scalia’s reasoning shaped me. A judge must apply the law as written.” It is a point that her Republican sponsors came back to again and again.

As I will explain in more detail below, applying the text as written (“originalism”) cannot work when the key issue is jurisprudence — which text is to apply and what it means — are not knowable.

Originalism is behind the time by centuries!

My friends in continental Europe are perplexed how any judge could claim to be an originalist: Does originalism mean, in the American context, that a cramped reading of an 18th century text controls 21st century Americans?

One German friend says it would only be logical for originalist judges to forego the benefits of indoor running water since there was no such thing in the 18th century.

In Germany, as well as in key countries in continental Europe, law students are taught a very different approach to legal interpretation: “The basis of legitimacy of law to be applied today does not lie in the past; it lies in the present.”

American laymen are no less perplexed by Coney Barret’s declaration. And with good reason. Long ago, one of the United States’s most influential judges, Oliver Wendell Holmes proclaimed: “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV.”

Originalism as legal method

Originalism is one variety of what lawyers call “legal methods.” It is a form of statutory interpretation. Legal methods, for their part, refer to the ways in which legal systems make and apply laws. Although they vary in time and place, people use methods they know without thinking much about alternative ways of making and applying laws.

Judge Barrett explains her originalism: “Originalism rests on two basic claims. First, the meaning of constitutional text is fixed at the time of its ratification. Second, the original meaning of the text controls because ‘it and it alone is law.’”

Although Judge Barrett anchors originalism in constitutional texts, she and other originalists apply the doctrine as a general rule of reading statutes, i.e., written laws.

Originalism: A symptom of American failure

Originalism is a symptom of the failures of U.S. legal methods generally. It is an attempt to deal with a legal system that does not make or apply laws well.

American jurists are aware of their system’s failures, but they falsely assume that the failures are necessary evils. Their notion of American “exceptionalism” constrains them from even considering the possibility that foreign systems might work better.

I admit that legal methods are esoteric even for jurists. I therefore beg the readers’ indulgence, but to explain originalism better, I need to identify some of the United States’ more important failures in legal methods.

A necessary excursion into legal theory

In the 18th century, the newly formed United States of America led the world in written laws — not just in the Declaration of Independence and in the United States Constitution, but in Jefferson’s and Madison’s “Revisal” of the laws of the state of Virginia.

Today, however, the United States lags the world in legal methods. In the 19th and early 20th centuries, the United State’s lawyers largely gave up on Adams’ potent phrase “government of laws, not men.”

They substituted a lawyer-focused “rule of law” that is enthralled to notions of judicial precedents and adversary proceedings.

Americans, as they dedicated themselves to judicial procedure, actually also gave up on amending or even updating their 18th century constitution. The U.S. constitution is practically unamendable by legislative means.

Originalism implies that the U.S. Constitution is not modified by interpretation.

Failures with lawmaking

Originalism brings to light the United States’s profound failures with lawmaking generally. In the 19th century, attempts at codification of laws failed. In the 20th century, more modest attempts at systematization also failed.

As a result, Americans now live with a United States Code that is (and similar state codes that are) a “Frankenstein’s monster of session laws.” That is, the code consists of a plethora of laws that are poorly drafted, confusing, overlapping and conflicting.

In fact, Americans have trouble making modern laws of any kind. The response to the COVID 19 crisis does not suggest there will be improvement in lawmaking any time soon.

Back from theory to practice with not the best legal methods

Once ahead of other countries, U.S. legal methods today are antiquated compared to best practices in the world.

The United States was once a leader in constitutional review, fair process and federalism. Today U.S. “exceptionalism” prevents the United States from learning best practices from other countries more advanced in the application of legal methods.

Whereas much of the rest of the world has concentrated judicial review in constitutional courts having a limited number of judges, the United States allows thousands of judges at all levels to exercise constitutional control, sometimes with nation-wide effect.

“General verdicts”

Where most of the world requires justified decisions, the United States accepts unexplained decisions, e.g., juries’ “general verdicts.”

And while the world’s advanced countries with federal systems strive for collaboration among states, the U.S. legal system prods states into competing with one other — as well as with the federal government.

It is in this chaotic world that Justice Scalia created his originalism. Although intended to bring legal certainty to the United States, it only increases legal indeterminacy when it calls into question democratically adopted laws.

Law professors’ cover-up

Law professors try to cover up the sad reality in which the United States finds itself by saying that the law is necessarily “indeterminate.” They deny that “legal certainty” is possible.

How odd does that sound to law professors in Europe where legal certainty is a fundamental principle of law? The United States’ professors operate based on a false assumption. They believe that if the United States cannot get it right, no one can.

Justice Scalia’s artful invocation

Justice Scalia based his originalism on what is called textualism. To his credit, he addressed issues in legal methods that long had lain dormant in the United States.

As it happens, the starting point of Justice Scalia’s textualism is not terribly distant from the legal methods of modern Europe. Law should take the form of statutes — rather than overly relying on cases. It should be understood by reading its text.

It is to Justice Scalia’s credit that he was in principle an opponent of judge-made law and binding precedent. He saw them as inconsistent with textualism.

Scalia was also correct insofar as he argued that, in most cases, the art of properly applying the law should not require creating new law. Applying law should usually consist of determining whether the facts fit the law rather than torturing the law to make it fit the facts.

Scalia and the Prussian Civil Code of 1794

Where Justice Scalia’s “textualism” departs from Continental European legal methods is that it leaves almost no room for consideration of factors beyond a statute’s text. Unfortunately, Justice Scalia never worked Continental European legal methods into his teachings on legal methods.

Had he done so, he would have seen that his originalism bore similarities to the antiquated Prussian Civil Code of 1794 that prohibited judges from interpreting law.

Modern Continental judges are guided, but rarely compelled by their legal methods. They can be bound, as they are by the German constitution, to “law and justice” (Gesetz und Recht).

Originalism forces judges to choose law over justice. In her opening statement, Judge Barrett said that for Justice Scalia, “reaching results that he did not like” is what it means “to say we have a government of laws, not men.”

Modern laws and modern methods cannot eliminate unjust decisions. However, they can reduce their frequency.

Is originalism really democratic?

Recently, at the First Scalia Forum of the Scalia Law School, Judge Barrett defended Justice Scalia from the charge that through originalism he was introducing his private beliefs into the Constitution.

No, she said, that is the wish of “his intellectual opponents—the living constitutionalist — who expressly welcome moral and value-based decisions into constitutional interpretation.”

Justice Scalia wanted only that the people should decide democratically. Originalism, she claimed, is a “fundamentally different view of constitutional decision-making.”

The mantel of democracy

Perhaps when the people of the United States actually do get to decide, when their legislatures are effective in making law, Judge Barrett’s argument will have weight. But now, she, above all people, cannot reasonably claim the mantel of democracy.

She is on the verge of taking office based on an appointment by a President who lost the popular vote by nearly three million, confirmed by Senators who represent a minority of the population.

Those Republican Senators hope that one week after the election, in the midst of a public health crisis, Barrett will participate in a case seeking to invalidate the democratically adopted Affordable Care Act, which now protects millions against the scourge of COVID 19, and make it a nullity.

Conclusion

U.S. law is continually at risk of crashing into the rock of Scylla and being eaten, compromised by inflexible and outdated laws, or alternatively, of sinking into the whirlpool of Charybdis and drowning in a sea of laws and unguided precedents.

Originalism is a symptom and not a cure for the United State’ risks. Americans could and should learn from other legal systems and how their methods work. Methods abroad are not that distant from the United State’, but they are not exclusively textualism or originalism.