Judge Gorsuch's strict 'originalism' puts justice itself at stake
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In an April 5 column entitled "Critics of originalism don't know their history, or Founding Fathers," Prof. Bryan Garner critiqued two recent editorials, one by myself in the The New York Times ("The Problems with Originalism"), the other by Jill Lepore in the The New Yorker ("Weaponizing the Past"). Both Lepore's and my editorials themselves critiqued Judge Neil Gorsuch's theory of originalism, a theory according to which constitutional text should be interpreted according to its public meaning at the time of ratification.


Given the level of abstraction in this debate, it is helpful to discuss a concrete example. Suppose a case comes before the Supreme Court in which the principal issue is whether 90 days of solitary confinement for a first-time minor offense — for example, simple battery — constitutes "cruel and unusual" punishment under the Eighth Amendment.


According to an originalist, we must do our best to determine how the ratifiers — or at least the society in which the ratifiers lived — understood these terms. If, for example, they understood cruel and unusual to mean "causing gratuitous physical suffering," then judges would have to decide that 90 days of solitary confinement for simple battery is not cruel and unusual because the suffering is not so much physical as psychological. If, however, they understood cruel and unusual to mean "causing gratuitous physical or psychological suffering," then they could, if not should, arrive at the opposite decision.

The notion that judges should be bound by the constitutional text — the theory of textualism — is perfectly understandable. But why should modern judges be bound by the ratifiers' understanding of constitutional text — especially if they think that the ratifiers’ understanding would lead to an unjust result?

If the ratifiers operated under the more restrictive definition of cruel and unusual — that is, applicable only to physical suffering, not to purely psychological suffering — and if our concept of cruel and usual has expanded to include purely psychological suffering, then why should modern judges abandon our own concept and adhere to the ratifiers' outdated one?

Prof. Garner — and originalists generally — offer three answers to this question. First, aside from constitutional amendments, the meaning of the Constitution was fixed at the time of ratification. Therefore if modern judges interpret constitutional terms according to modern definitions rather than the ratifiers' definitions, they will be changing the Constitution.

Second, judges are not allowed to change the Constitution, the supreme law of the land. Instead, their job is only to interpret it.

Third, once modern judges feel free to change rather than merely interpret the Constitution, we will become a nation of men (humans) rather than laws. While judges may pretend to be following the Constitution, they will really be following their own moral, political, and policy preferences. Originalism, then, is a mechanism that is primarily designed to constrain judicial discretion and thereby maximize judges' objectivity.

One problem with this three-part justification of originalism is that it relies on a false dichotomy between originalism and judicial subjectivism. As I argued in my New York Times editorial, there is a third possibility: principled pragmatism. Again, principled pragmatism:

"says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision."

Some originalists will say that principled pragmatism reduces to judicial subjectivism, that it is merely a fancy term for anything goes. It is certainly true that judges could pretend to be principled pragmatists when they are really just subjectivists — bending and twisting the Constitution to yield the outcome that they prefer. But the same can be said of every other theory of constitutional interpretation — including originalism.

A judge can easily pretend to be an originalist while simply manipulating historical meaning to derive the outcome that she prefers. Indeed, many have suggested that Scalia himself played precisely this "trick" in the landmark Second Amendment case, District of Columbia v. Heller (2008). In the end, what Ronald Dworkin said with regard to his own "moral reading" of the Constitution applies to all other theories of constitutional interpretation: They are strategies "for lawyers and judges acting in good faith, which is all any interpretive strategy can be."

Ultimately, the debate between originalists and their opponents comes down to a debate between two competing values: historical allegiance to the founders and justice. In the example above, if the ratifiers' understanding of cruel and unusual applied only to physical suffering, not purely psychological suffering, then the question of whether 90 days of solitary confinement for simple battery is cruel and unusual admits of two possible answers: (a) a backward-looking originalist interpretation with an unjust result and (b) a forward-looking pragmatic interpretation with a just result. While Prof. Garner apparently opts for (a), I opt for (b). After all, we — not the ratifiers — are the ones who have to live with the consequences.

Originalists might respond that (a) is preferable for the same reason that statutory language must be strictly adhered to: Democracy requires it. By this reasoning, what is or is not just should be determined not by "elitist" judges, but rather by the people themselves, and the will of the people is best expressed through their intermediaries — specifically, by their elected representatives through statutory text and by the Founding Fathers through constitutional text.

But there is a big difference between the Constitution and statutes: While statutes are designed to represent the majority's will, the Constitution — especially the Bill of Rights — is largely designed to protect individual rights against the majority. So while statutory interpretation tends to focus on what exactly the majority meant when its representatives passed the statutes in question, constitutional interpretation needs to focus on the quality of the majority's will — that is, on whether the majority overstepped its bounds and thereby encroached on an individual's rights.

In short, unlike statutory interpretation, constitutional interpretation ultimately aims for justice, not for fidelity to the intent or understanding of some past majority.

Finally, Prof. Garner stated that I "libeled" Justice Scalia when he said that I had the "temerity to say that 'Justice Scalia failed to realize that textualism is self-undermining.'" Accusing me of a tort, whether or not facetious, is gratuitously nasty and inappropriate in any academic discussion or debate.

In any event, my point, which I develop more fully in "Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism," was that textualism contradicts itself. While it says that we shouldn't make any assumptions that are not explicitly stated in the Constitution, this assumption itself is not explicitly stated in the Constitution. I do not see any evidence that Justice Scalia was aware of this foundational problem with textualism.

Nor does Prof. Garner's counterargument — that "(n)owhere in Shakespeare is it said that future generations may well need a glossary to understand some of the dialogue" — undermine my point. This is a pretty weak analogy. Shakespeare never wrote a document that was meant to govern a democracy that would foreseeably evolve in every way — morally, socially, politically and technologically.

This piece was revised on April 7, 2017 at 3:45 p.m.

Ken Levy is the Holt B. Harrison Associate Professor of Law at Louisiana State University's Paul M. Hebert Law Center.

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