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The politics of originalism

The politics of originalism
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Supreme Court appointee Judge Amy Coney BarrettAmy Coney BarrettOn The Money: Power players play chess match on COVID-19 aid | Pelosi bullish, Trump tempers optimism | Analysis: Nearly 1M have run out of jobless benefits Overnight Energy: Barrett punts on climate, oil industry recusals | Ex-EPA official claims retaliation in lawsuit | Dems seek to uphold ruling ousting Pendley Amy Coney Barrett is beacon for new kind of feminism in America MORE has made her philosophy on judicial interpretation a centerpiece of her qualifications for confirmation to the seat vacated by Justice Ruth Bader GinsburgRuth Bader GinsburgDemocrats to boycott committee vote on Amy Coney Barrett's Supreme Court nomination Mitt Romney did not vote for Trump in 2020 election The Senate should evoke RBG in its confirmation of Amy Coney Barrett MORE. Generally stated, Barrett’s philosophy argues for a strict, textualist or originalist reading of the law and the Constitution as the proper methodology of judicial adjudication.  

The traditional view on the separation of powers and checks and balances among the three branches of government is that it is the function of the judiciary to adjudicate the cases and controversies brought before them. As Alexander Hamilton argued in the Federalist Papers: No. 78, it would be the weakest of the three branches because “it may truly be said to have neither force nor will, but merely judgment.” It is the province of the court, as Justice John Marshall so eloquently stated in Marbury v. Madison (1801), to determine what the law is. This well-known legal truism, of course, begs the questions: What exactly does the law really say? How are we to determine what it says when it’s meaning is contested?

Given that a legal text may be subject to multiple readings depending on one’s interests and prejudices, it behooves us to think through the hermeneutical principles that are brought to bear at the moment of understanding and adjudication.

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We need to acknowledge that legal interpretation does not occur in a vacuum. It is inextricably a historical endeavor, subject to all of its imperfections and misunderstandings. Textual meaning is never free-floating, nor is it captured intuitively, but rather it is arrived at through use of our linguistic practices and conventions. Contrary to the natural sciences, legal interpretation is not an empirical effort but a continuous dialogical process between the interpreter and the text. 

Not all of us agree on how a word should be understood, much less for purposes of defining its legal consequences. Bostock v. Clayton County (2020), for example, is noteworthy among other reasons for the sharp disagreement between the majority opinion written by Justice Neil GorsuchNeil GorsuchSupreme Court's Pennsylvania mail ballot ruling tees up test for Barrett 51 percent want Barrett seated on Supreme Court: poll Supreme Court denies GOP bid to block extended mail ballot due date in Pennsylvania MORE and the dissent written by Justice Samuel AlitoSamuel AlitoPlaintiff and defendant from Obergefell v. Hodges unite to oppose Barrett's confirmation Supreme Court's Pennsylvania mail ballot ruling tees up test for Barrett Supreme Court denies GOP bid to block extended mail ballot due date in Pennsylvania MORE on how best to interpret the word “sex discrimination” for purposes of Title VII of the Civil Rights Act. Even among strict constructionists, meaning has different meanings. 

Although we can plausibly construe how words and ideas may have been understood in a given past, this is not to say that we can claim our construal as objective, empirical reality. Winston Churchill’s well known bon mot that the British and the American people were separated by a common language, is also true for the relationship between present and past generations. 

It is not possible to approach the Constitution without contextualizing it within the larger frame of its political and historical scaffolding. We do tend to forget at our own risk that the Constitution is primordially a normative political text from which its legal force derives. The protections guaranteed by the Bill of Rights, unevenly upheld by the courts since 1787 for instance, are dependent on the political, social and economic understanding we assign to them at any given time. As a judicial construction, for example, the genealogy of substantive due process can be traced in Supreme Court opinions directly from Dred Scott (1857), passing through Lochner (1905) to Obergfell (2015). Its meaning is not frozen in time. As the doctrine of stare decisis implicitly recognizes, the interpretation of a text through history is also part of its meaning.     

The idea that the courts should interpret the law and the Constitution narrowly, giving due course to its textual or original meaning as the proper way to assure compliance with its mandate, at the exclusion of other factors, is both a legal and a political claim. 

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There are persuasive policy reasons for adopting a strict construction — which is not synonymous to textualism or originalism — as a matter of judicial philosophy, as Justice Antonin Scalia argued throughout his tenure in the court. Perhaps its most convincing argument is that it serves as a constraint on judgement from the all-too human inclination to impart justice based on subjective criteria. Assuming well-thought and drafted law, strict construction tends to promote equal justice.    

Another argument put forth by the defenders of textualism and originalism is that given that federal judges are not elected but appointed with life tenure, they should defer to the political branches of government, who in fact are direct representatives of the people. This is a perfectly coherent position. The logical conclusion of this argument if unchecked, however, leads to the court’s abdication of its constitutional responsibilities. This principle of deference hits a wall when confronted with fundamental principles of justice and fairness. Which legislative policies and executive practices should the courts defer to is precisely the political issue raised by any judicial nomination.   

This apparent deference, however, is muddied by the realities of our adversarial model. Truth in law is, by definition, contested. The merits of a legal argument depend not only in the ability to align relevant facts to legal principles and law, but on the ideological underpinnings that each one of us brings to the discussion, including the judges and justices that sit on the court. This explains the successful efforts led by Majority Leader Mitch McConell (R-Ky.) in filling the federal judiciary with conservative appointees in the last four years.

In matters of constitutional interpretation, the power exercised by all government branches are subject to limitations, and it’s the task of the Supreme Court to arbiter any conflict among them. “We are right because we are final, we are not final because we are right,” as Justice Robert Jackson pithily remarked. A philosophy of judicial interpretation that privileges textualism or originalism necessarily implies a political stance on the issues of the day. Underlining its claim is an ahistorical desire to return to a world of perfect meanings that never existed. In this sense, there is nothing original about it.  

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico, where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.