In response to:

Originalism’s Charade from the November 24, 2022 issue

To the Editors:

David Cole’s “Originalism’s Charade” [NYR, November 24, 2022] is a devastating critique of originalism as a method of interpreting the Constitution. Among other things, Cole argues that the theory does not deliver on its promise of constraining judicial discretion, because of the many interpretive choices it leaves to judges.

But there is also empirical evidence for this claim. In Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, I show that justices often reached opposite conclusions using the same “originalist” approach: text and history. Justice Black is often neglected in the literature on originalism, but he was the Supreme Court’s first full-throated originalist. However, he reached results that Scalia and Thomas would never countenance. For example, Justice Black was a strong defender of the “high wall” theory of the establishment clause. In one case, he said not “one penny” of taxpayer money should be used to support religious schools. Meanwhile, Justices Scalia and Thomas have supported many forms of government aid to religion, including school vouchers. These three originalists also interpreted the Second Amendment in fundamentally different ways. Black joined the Court’s decision in United States v. Miller (1939), which limited the right to keep and bear arms to the rights of states to maintain militias. Justices Scalia and Thomas, by contrast, led the revolution to reinterpret the Second Amendment to protect an individual right to own guns for self-defense.

Black also was a skeptic of executive power, while Scalia and Thomas have supported broad claims of executive power. Black dissented in a 1950 case in which the Court held that alien enemy combatants tried extraterritorially by military commission do not have the right of habeas corpus. Justices Scalia and Thomas took the exact opposite position during the war on terror. A New Dealer before there was a New Deal, Justice Black interpreted the commerce clause as granting broad power to Congress to regulate in the public interest. Justice Scalia read the commerce clause power more stringently, but his support of Gonzales v. Raich (2005), in which the Court held that the federal government could regulate marijuana possession, led some originalists to claim that he was not a true originalist. Justice Thomas, meanwhile, has defended a very strict interpretation of national power, which Scalia called a “degraded” form of originalism and which would put in doubt much of the New Deal.

The fact that justices using the same originalist method could reach such divergent results offers real-world evidence to support Cole’s thesis that originalism is a charade.

James B. Staab
Professor of Political Science
University of Central Missouri
Warrensburg, Missouri

To the Editors:

For several reasons, I was disappointed in David Cole’s review of books on originalism. First, Cole ignores founders who advocated for original meaning when interpreting the Constitution. For example, on December 28, 1821, responding to a request from a constituent, Madison wrote that the Constitution must be interpreted according to “its true meaning as understood by the nation at the time of its ratification” (the latter emphasis mine). In June 1823, responding to a question concerning reinterpreting the Constitution to meet current crises, Jefferson wrote that we ought to return

to the time when the Constitution was adopted, recollect the spirit manifest in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was past

(emphasis mine). Second, current usage of originalism is not an invention of Bork and Scalia, though they popularized it. It was brought to the fore by Justice Hugo Black in an attempt to move the Supreme Court from “judicial restraint” to activism. In 1947 Black issued a full-scale defense of original meaning in his lengthy dissenting opinion in Adamson v. California. He sought to apply the Bill of Rights to the states using the original meaning of the Fourteenth Amendment. Soon afterward, the Warren Court took up Black’s hermeneutic method which resulted in such landmark cases as Mapp v. Ohio, Gideon v. Wainwright, and Pointer v. Texas. Out of such rulings, the Supreme Court invented the “incorporation doctrine” and imposed the “exclusionary rule” on the states, a precedent I assume Cole endorses.

Cole does get Justice Harlan right. Harlan opposed the exclusionary rule and avoided originalism in favor of a precedential notion of “fundamental fairness.” I also agree with Cole that Scalia, among others, misuses a perfectly valid way to interpret the Constitution by cherry-picking history to create an illegitimate context for his readings. But as I have pointed out in the journal Communication and Democracy (May 2022), if one creates a robust reconstruction of the historic context of the passage of the Bill of Rights and other amendments, clear readings can be performed. Using original meaning, I argue that Scalia’s and Alito’s readings of the Second Amendment in the Heller and McDonald decisions on gun control are horribly skewed, a position with which Cole might agree.

Craig Smith
Emeritus Director
Center for First Amendment Studies
California State University, Long Beach

To the Editors:

David Cole in “Originalism’s Charade” singles out Antonin Scalia and Robert Bork as the two law professors who were most influential in advancing “originalism.” Here’s the best original evidence of their charade not mentioned in the review essay. Scalia loved to cite Hamilton’s Federalist Paper on limiting the judiciary’s power to the exercise of “merely judgment.” Alas, Scalia never would have cited from Madison’s Federalist Paper No. 37 in which Madison argues that no language is “so correct as not to include many equivocally denoting different ideas” and that

all new laws, though penned with the greatest technical skill…are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.

Madison’s understanding of language is the best challenge to Scalia’s originalism: it invalidates Scalia’s claim that the language of the Constitution has a “fixed” meaning and supports Cole’s argument about respecting the Court’s “evolving decisions” and embracing a “common law over an originalist method” in constitutional interpretation.

Thomas Gustafson
Associate Professor
Department of English
University of Southern California
Los Angeles, California

David Cole replies:

Originalists’ principal claim in favor of their method of interpretation is that it promises fixed meanings for constitutional terms, and therefore constrains judicial discretion. As my review explained, originalism fails to deliver on that promise for multiple reasons. These letters further demonstrate the point. Professor Staab helpfully points out that Justice Hugo Black’s originalism led him to conclusions diametrically opposed to those reached by Justices Thomas and Scalia, though he was ostensibly applying the same methodology. Jefferson’s invocation of the “spirit” of the Constitution’s framing, which Dr. Smith offers as evidence that Jefferson was an originalist, would almost certainly be rejected by today’s originalists, who eschew “spirit” as too indeterminate a guide.

While it’s true, as Dr. Smith notes, that the Warren Court ultimately extended much of the Bill of Rights, which initially applied only to the federal government, to the states, only Black did so on “textualist” or “originalist” grounds. The majority of the Court, however, did not adopt Black’s “hermeneutical method” in doing so, as Dr. Smith claims, but instead asked whether a given right was firmly rooted in “ordered liberty,” an inquiry that much more closely resembled common law constitutional interpretation than any search for an original understanding. And Madison, whom Dr. Smith invokes to defend originalism, is invoked by Professor Gustafson to illustrate the impossibility of assigning a fixed meaning. If originalism’s value is in narrowing the scope of constitutional interpretation, it is doomed to failure. Maybe that’s why, over the course of the Court’s history, the justices have overwhelmingly adopted and applied common law constitutionalism, which recognizes that constitutional meaning will develop case by case, over time, and that this evolution is not only inevitable but necessary if a document drafted more than two hundred years ago is to hold sway over our democracy today.