Discover more from Five O'Clock with Theral Timpson
Nature Versus Custom: Limitations of Originalism
A philosophical look at the popular legal theory
The current Supreme Court has been disrupting culture like a Silicon Valley startup. Saying that the court has made a hard turn to the right is not a controversial observation. Last year the court upended fifty years of super precedence with the Dobbs decision to overturn Roe. This year it was affirmative action and gay rights which they ended or challenged. We’re all on the edge of our seats. What will this conservative court upend next?
The dramatic rightward shift, this uprooting of precedent, has been made under the broad legal justification of originalism and its offspring textualism. (For those freaking out now that the court is 6 to 3 conservative, let us remember that a couple of generations ago it was predominantly liberal. However, there were more moderates than we see today.) The legal doctrines of originalism and textualism were adopted as a corrective to an “activist" bench from the 60s and 70s that followed the theory of living constitutionalism.
Originalists argue that new policy is up to the legislative bodies. The court’s job is to stick to the original meaning, the commonly understood meaning of the Constitution at the time it was written. However, many of us are questioning whether the court is not always activist when there is a supermajority. Is originalism merely providing a cover for a new activist conservative court? The aim of this article is to probe the limitations of originalism with the aid of philosophy, ancient and modern.
First, let us distinguish between originalism, textualism, and living constitutionalism. The late Supreme Court Justice Anthony Scalia subscribed to both originalism and textualism. Originalism calls for understanding the Constitution based on just the text, whereas living constitutionalism asks what the text should mean now in an evolving society. Originalism rejects any “developing meaning” for a view based on the static document in a specific period of time.
One can readily see the dangers of going too far in either direction. Whereas living constitutionalism gives great latitude to interpret the constitution based on today’s evolving standards—perhaps create those standards--originalism could get us stuck in the past. With the Constitution so difficult to amend, liberals argue, how will the law keep up with the times? Do not a majority of Americans favor abortion and gay rights? The law can change with the times, argue conservatives, but it should be by the will of the people through the legislature. The court’s job is to preserve the law as written.
Textualism is a subset of originalism. When it was first developed, originalism was concerned with the intentions of the founders. This was soon seen as problematic, for how does one know the inner workings of the minds of those who lived 250 years ago? Talk about activism. So originalists retreated from interpreting the intention of those who wrote the Constitution to interpret the original meaning—what would the text have meant at the time to the ordinary person? This new version of originalism is called textualism.
When Justice Antonin Scalia pioneered originalism as a guard against free interpretation, he trained a couple of generations of legal scholars and future judges. The theory has become so prominent and pervasive, that even when the liberal justice, Elena Kagan, was nominated, she said, “We are now all originalists.” The theory is now mandatory for conservative justices to be nominated.
A historian might point out that originalism and textualism are not only a reaction to the living interpretation of the Constitution but are a product of their time. They came directly from the literary criticism fashionable in the ‘60s and ‘70s known as post-structuralism, ironically a leading theory at liberal universities. As I mean to argue more deeply in a second piece, originalism and textualism have both led the Republican Party toward postmodernism, a condition to which many liberals succumbed a couple of generations previous.
Postmodernism is the rejection of a belief in the capital “T” Truth—everyone has their own truth. Republicans are now embracing the move away from their traditional conservative belief in timeless, true principles whether they were realized with religion or foundational philosophy. Postmodernists believe that truth is relative. They reject the notion that there are universal values. On the left, the attraction to postmodernism was most apparent in the anthropology that blossomed in the 1950s and 60s which sought to discover the original truths of various cultures and was closely tied to “post-colonialist” theory. For them, truth was a matter of history. One culture should not think of itself as having better access to knowledge or truth than any other culture. The term “culture” was a check on timeless truth.
A necessary correction to the racism of Western societies, the postmodernism of the 60s broke with religions or philosophies that claimed a special right to the truth, or any “overarching narrative.” Though Republicans are now rejecting post-colonialist theory, they have developed their own version of postmodernism. As Yuval Levin writes, Donald Trump’s love of America “is not its ideals or its gradual self-improvement, but the simple fact that it is our country.” The new Republican version is populist nationalism. Once a liberal himself, Trump is now using a popular theory among Democrats as a strategy to fight against them.
Originalism, too, is not interested in timeless or universal truths. Originalism connects merely with the text and stops there. This has led the modern court to worship a single document, divorcing the Constitution from the moral virtues upon which it was based. Jefferson, Adams, Hamilton, and the other framers were Enlightenment thinkers. They believed wholeheartedly in universal values.
“We hold these truths to be self-evident. . . “ Need I go any further?
Let us return to the Dobbs case from last year. Justice Alito, a protege of Scalia, wrote for the majority that the Constitution “makes no reference to abortion,” nor would the founders have countenanced the practice. Therefore, his argument follows, that we should not allow abortion today. The result has been the punting of the issue back to the states and the quick passage in Republican states of strict anti-abortion laws. The Dobbs decision condemns the practice of abortion at the federal level.
Dobbs was a significant departure from past precedent. In his concurring decision, Justice Thomas wrote that the Supreme Court should not stop there but “should reconsider” its past rulings codifying rights to contraception access, same-sex relationships, and same-sex marriage.
Justice Thomas and Alito are questioning the living tradition built up by the court of interpreting the 14th Amendment and its protection of individual liberty in an evolving manner. Were abortions allowed by society in 1789 or at the time of the 14th Amendment? No. Were gay people allowed rights then? No. Therefore, they should not enjoy these rights today. That is unless the rights are legislated.
What many are asking after this decision is whether we are now getting stuck in the morality of 1789.
The question of universal versus relative truth is an old one. In Ancient Greek philosophy, we can find adherents of both positions. Plato, a believer in the universal was almost militant toward the Sophists who did not hold for universals but put power at the center of all thought and philosophy. The Sophists praised rhetoric, the ability to persuade others to one’s own view. Plato insisted on the study of mathematics because it represented universal truths which he believed could be also seen in ethical concepts such as justice and goodness.
What all Ancient Greek philosophers would have agreed upon was that the theme of philosophy was “nature.” But what is nature?
The poet Homer was the first to use the term. In the tenth book of the Odyssey, Odysseus relates what happened to him on the island of the goddess Circe. Circe has turned all his men into pigs and locked them up. On his way to Circe’s house to argue for his compatriots, Odysseus is met by the god, Hermes, who promises to protect him by giving him an herb that will make him safe against the spells of Circe. The text says Hermes “drew an herb from the earth and showed me its nature. Black at the root it was, like milk its blossom, and the gods call it moly. Hard is it to dig for mortal men, but the gods can do everything.”
In their book, History of Political Philosophy, authors Leo Strauss and Joseph Cropsey point out that “nature” or what the Greeks called “physis” meant the character of a thing or a kind of thing. Importantly, nature was not made by gods or men. The authors’ research also shows that the Hebrew bible does not have a word for nature. The closest we get in Hebrew is “way” or “custom.”
The Greeks would go on to split the concept of nature into “physis” and “nomos,” nomos meaning custom or way. There is the nature of things, and then there is custom or convention.
This is still the basic division we observe today. There is the interpretation of the Constitution based on the ideas or the nature of the things represented in the text. And there is the interpretation that holds the word itself to be of the highest importance. This is tradition or custom.
Let us leave the Greeks and consider more modern philosophy. In his book, Problems of Philosophy, Bertrand Russell observes the world in two ways. There is the world of being and the world of existence. Russell uses the example of “whiteness.” No two men have the same thoughts about whiteness. Thoughts are distinct. However, we must consider the “object" of the thought. That which many different thoughts of whiteness have in common is their object. Russel asserts that universals are not the thoughts but the object of thoughts.
Russell further goes on to distinguish between types of objects. He asserts that thoughts and feelings as well as those who have them are objects that physically exist. But universals, such as whiteness, do not exist in this sense. They subsist or have a being. Being and existence are opposed to each other. Being and the world of universals are timeless. Objects that exist are not. In his dry British style, Russell further asserts that we humans all have a preference for one of the two philosophies, that of being and of existence.
"The world of universals may also be described as the world of being. The world of being is unchangeable, rigid, exact, and delightful to the mathematician, the logician, the builder of metaphysical systems, and all who love perfection more than life. The world of existence is fleeting, vague, without sharp boundaries, without any clear plan or arrangement, but it contains all thoughts and feelings, all the data of sense, and all physical objects, everything that can do either good or harm, everything that makes a difference to the value of life and the world. According to our temperaments, we shall prefer the contemplation of one or the other."
One can see originalism as rooted in the world of existence while living constitutionalism is interested in Russell’s concept of being.
So where does this bring us? Is it as Russell says merely a preference? How do we move forward in our democracy? Some will prefer one way of looking at the world, and others prefer another. Is this more postmodernism? Truth is a preference?
My hunch is that those who believe in the world of “being” will not be happy with a world that comes down to “preference.” Those who favor existence will be okay with this, for it is an actual object who is doing the preferring. And for them, there is nothing more than actual objects.
Russell goes on to write that no matter our preference, the two worlds exist and we must come to terms with both.
With this article, I don’t aim any higher than this. Understanding that both exist is a worthy undertaking. We might, in summary, conjecture that originalism is a complex path for Conservatives. Yes, a conservative favors the traditional custom or the way, but conservatives also believe in universal truths. Is this the core split we see in the Republican party of today? (Many of us are asking if there is now a third branch of the party that follows neither custom nor truth.) Liberals cannot always claim to favor the universals, but must also consider objects, the text, and the humans working to understand the text. This creates also a deep fissure in the Democratic Party. Political correctness (equality of race, gender, and sexuality) was based on universal rights yet is now associated with denying freedom of speech.
We humans must deal with both worlds, that of being and of existence, of the principles of mathematics and logic and the existence of objects or what Russell calls sense data. We must wrestle with an object that is actually white and also the concept of whiteness.
Originalism is limited as a foundational legal theory based on things that exist but overlooks the universal being, the nature of a thing that the Greeks observed so many years ago. Scalia was being a prudent judge when he pointed out that we must have the ambition to adhere to the text of our original founding document for the integrity and continuity of the country. I argue that we must also realize that the founders wrote the Constitution based on the nature of things themselves.
Five O'Clock with Theral Timpson is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.