November 10, 2021

By Bill Blum

For better or worse, the nine unelected elite lawyers who hold lifetime tenure as Justices of the United States Supreme Court have the last word on the interpretation of the Constitution. They and they alone get to pass final judgment on fundamental issues that touch all of our lives.

It is critically important, therefore, that the methodologies the Justices use to decide constitutional questions meet certain standards, and that their rulings are not only consistent with the text and history of the Constitution, but also responsive to the evolving needs and values of ordinary Americans.

This is, to be fair, no easy task, but it should be doable.

Sadly, the Supreme Court under the leadership of Chief Justice John Roberts has failed the test. The failure stems in large part from the court’s embrace of a doctrinaire legal philosophy known as “originalism.”

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as voting rights and gerrymandering, union organizing, the death penalty, search and seizure, gun control, abortion and campaign finance are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century. For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.

Originalism, as a tool of judicial decision-making, has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.

But as I have written before, originalism as an explicit judicial theory came into vogue in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights, such as “freedom,” “liberty,” “due process,” and “cruel and unusual punishments,” should be understood according to the “original intent” of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.

When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it “new originalism”—was popularized by the late Supreme Court Justice Scalia and has been enthusiastically embraced and promoted by all six Republican-appointed Justices sitting on the court today. Instead of emphasizing original intent, new originalists focus on the “original public meaning” of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.

All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell has noted:

“[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

Originalism was front and center during the oral arguments the court conducted earlier this term in a hotly contested appeal that could determine the future of gun control in the United States.

The case--New York State Pistol Association v. Corlett—is the first major Second Amendment challenge the court has entertained since it handed down a pair of decisions in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. Chicago) that recognized an individual constitutional right to keep firearms in the home.

The new case was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places limits on the issuance of concealed weapons permits to carry guns outside the home. Under New York’s regulatory scheme, people seeking such permits are required to demonstrate a special need for protection — “proper cause” in the words of the statute—to qualify. The NRA contends the law is unconstitutional.

During the oral arguments, the Justices paid too little attention to the dire consequences of unleashing more guns on the streets of present-day New York City. They instead peppered the attorneys for both sides with questions about the origins under Anglo-American law of the right to carry arms in public places. At several points in the two-hour session, the attorneys were asked to share their thoughts on whether the Statute of Northhampton, an act of the English Parliament passed in 1328, banned the carrying of weapons other than by the king’s servants in fairs and markets.

The questioning would have made for an amusing Saturday Night Live or Monty Python skit, but this is real life. Commenting on the oral arguments, Professor Cornell told the BBC it was “beyond ironic” that anyone would look to Medieval England for resolution of the case. "It just doesn't make any sense whatsoever to anyone who really understands the complexity of English history. Obviously, that doesn't include many people in the gun rights community or many people sitting on some courts in America."

There is, of course, a better and more reality-centered way to adjudicate constitutional issues. Originalism’s rival, known variously as “living or dynamic constitutionalism,” asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs, and changing traditions.

Living constitutionalism has been embraced by the liberals on the Supreme Court today, and in recent times, occasionally by centrist Justices, such as Anthony Kennedy, who retired in 2018.

A good example of the doctrine can be found in Kennedy’s majority opinion in Obergefell v Hodges (2015) which recognized a federal constitutional right to same-sex marriage.

Rejecting the originalist approach, Kennedy wrote:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Unfortunately, with the Supreme Court now firmly in the hands of committed originalists and the fantasy world they inhabit, the living Constitution is on life support.

Bill Blum is a former judge and renowned death-penalty defense lawyer. He is also the author of popular legal thrillers and an award-winning journalist, specializing in commentary on law and politics. Follow him at BlumsLaw.com.