Even as Texas families mourn their dead, it wouldn’t be all that surprising if the Supreme Court’s conservative majority on Tuesday tells us that what America needs is more guns on the streets and highways.
If they do—and though I hate to make Court predictions, it seems likely that they will—they will also expect the rest of us to praise them for their wisdom and independence.
It is honestly more than a beleaguered nation should have to bear.
In both the gun rights case (New York Rifle & Pistol Association v. Bruen) and the abortion rights case (Dobbs v. Jackson Women’s Health Organization, whose apparent result has been leaked though the final opinion hasn’t been released), the justices will most likely practice what the Italians call ponziopilotismo, the political art of deciding without admitting you are doing so, as Pontius Pilate did when he literally washed his hands of the whole crucifixion business. The Court’s newly energized conservative majority will explain that despite some people claiming that the decisions will spell sickness and death for millions, the Court has no choice but to brutalize these aspects of American life because that’s what the Founders have told them to do. That has apparently meant tossing 50 years of abortion rights precedent, and it will likely mean rewriting the decision in District of Columbia v. Heller, the gun rights case that allowed for local regulation of guns but will now be read to gut them all.
Even as they outrage a majority of Americans on both issues—and even as they display naked fealty to a far-right agenda—the conservatives will rhapsodize their own courage and fidelity. And their preening will not suffice; they will expect the rest of us to praise them for their deliberate blindness to the consequences of their decisions. “The American people’s belief in the rule of law would be shaken,” Justice Samuel Alito blandly explains in the draft Dobbs opinion, “if they lost respect for this Court as an institution that decides important cases based on principle, not ‘social and political pressures.’”
This week is the right time to take a solid look at “originalism,” the fashionable right-wing theory of constitutional interpretation. As practiced by conservative judges, “originalism” far more closely resembles a solicitation email from the finance minister of Tannu Tuva than actual legal reasoning. That’s because, as a judicial theory, “originalists” claim that judges can study history and come up with a determinate result to contemporary legal questions. And they are right—as long as they, and the conservative legal movement, control what evidence the courts may consider.
“The point here isn’t to look at history for the sake of studying history,” former Solicitor General Paul Clement told the Court in last November’s gun rights argument, but “to look at the history that’s relevant for understanding the original public meaning of the Second Amendment.” And surprise, surprise, surprise, to the conservative legal movement, “history that’s relevant” means “any scrap of history that supports the most pro-gun position.” In contrast, “irrelevant” means the extensive history suggesting that, in fact, an untrammeled right to carry pistols was not part of the liberties of Americans at the time of the framing.
Bruen seems poised to create another right—a right to the concealed carry of handguns. Maybe you or I don’t think what American cities need is more concealed weapons on the streets. Maybe you think the timing for a pro-gun decision—days or, at best, weeks after the massacre at Robb Elementary School in Uvalde, Texas—is atrocious. But what you or I think doesn’t signify, does it? After all, the current justices aren’t really “deciding” anything: The decision was made long ago by some dudes who are now dead but who speak to conservative judges—and only to them—in the still watches of the night.
To be clear, I love “originalism” as a scholarly discipline and respect many of those who practice it. Understanding the thought process of the Framers about a given provision and the practical situation they were addressing can permanently shed light on American intellectual history and sometimes even inform contemporary legal debates.
But it is one thing for a scholar to advance a new interpretation of a clause, set against the backdrop of new historical research or a fresh interpretation of neglected material. It is quite another for a lawyer or judge to claim that voices have told them the one true meaning of that clause. The former is exciting, the latter appalling.
History cannot provide a rule of decision for contemporary judges deciding contemporary legal problems. That’s not because we can ignore the “original public meaning” of the text; it is because, in most cases, we cannot possibly establish clearly what that is. The quest itself is almost completely incoherent. The best evidence of this is that the meaning of “original” in “originalism” has had to be erased and rewritten three times. When first proposed by Reagan Attorney General Edwin Meese in the 1980s, it was “a jurisprudence of original intention.” Embarrassingly enough, that formulation fell apart quickly. We have no access to the Framers’ secret thoughts; and, besides, the “intention” of the Framers has no binding quality—they were proposing a Constitution that was enacted into law by “we the people,” and thus the Framer’s “intentions,” even if knowable, would be irrelevant.
So, the key term morphed into the “original understanding” of a provision in the minds of the ratifiers. Oops, same problem, only squared—who knows what long-dead citizens who, in their thousands, voted for delegates to the state ratifying conventions, “understood” about, say, the meaning of “ex post facto” or “commerce among the several states” when they voted? Today, the shiny new quest is for the “original public meaning” of a provision, the assumption being that this “public meaning” is an objective fact that we can find and agree on.
That search, alas, is also not only impossible but essentially meaningless. Even today, public understanding of politics and government is slippery to decode—and that involves a population available to be polled and interviewed. The framing generation is—well, dead, you know. Neither their thoughts nor their understandings are given to us to know.
This problem did not deter Justice Antonin Scalia, the patron saint of “originalism,” from proclaiming it not only valid but easy-peasy. “What I look for in the Constitution,” Scalia wrote in 1997, “is precisely what I look for in a statute: the original meaning of the text, no matter what the original draftsmen intended … Often—indeed, I dare say usually—that is easy to discern and simple to apply.”
Yes, that’s right. Now, please send your legal system to me in Tannu Tuva, and in return, you will receive untold good fortune.
In fact, almost nothing about the past, even the “original public meaning” of words, is “easy to discern and simple to apply.” It’s easy to understand that “the Age of thirty five Years” in Article II means that the president must be 35 years old. Still, almost nothing else—including the full meaning of “natural-born citizen” in that eligibility clause—is as clear as Scalia and his acolytes would pretend.
In fact, as the constitutional historian Jack N. Rakove has written, actual historians “have little stake in ascertaining the original meaning of a clause for its own sake, or in attempting to freeze or distill its true, unadulterated meaning at some pristine moment of constitutional understanding.” Answering those kinds of problems is not what history does—which may be why Clement was so eager to direct the Court’s attention away from anything written “for the sake of studying history.”
What is history? How can we know the past? That question has produced many answers over the 2,500 years since Herodotus wrote his Histories. The British academic publisher Polity Books has issued a series entitled “What Is History?” It currently stands at 20 volumes.
I will wager that neither Alito nor his clerks have read deeply in the theory and practice of history. If they have, it certainly didn’t show in the draft Dobbs opinion, which speculated on what William Blackstone or Sir Matthew Hale not only wrote about abortion but what they secretly thought. Surprisingly enough, it turns out that in their thoughts, they didn’t like it; we have Alito’s word on that. Meanwhile, the significant body of women’s history written in the past half century suggests that for much of the period during and after the framing, midwives and others practiced abortion clandestinely. Abortifacients were openly advertised and sold as remedies for “female complaints.” But that history doesn’t count.
What happens in “originalist” judicial decisions has nothing to do with history. Instead, “originalism” is used as a way to shut down opposing arguments. To sum it up, that method has six steps:
1. Find some old legal cases or other sources that can be quoted, even if sharply edited first, to favor a conservative policy outcome of a constitutional dispute.
2. Proclaim this policy outcome as the “original public meaning” of the constitutional provision at issue.
3. Exclude as much contrary evidence (including existing judicial precedent) as possible.
4. Announce that none of the remaining evidence disproves your side’s preferred policy outcome.
5. Enshrine your preferred policy outcome in constitutional doctrine.
6. (optional) If courtesy calls for it, apologize for the harshness of the result, but note that you bear no responsibility. Our Founders decided it long, long ago, and you are simply their humble scribe.
That method is on display in the draft Dobbs opinion; it seems quite likely to form the basis of the upcoming majority opinion in New York Rifle & Pistol. There is little that ordinary people can do to halt this rogue court’s rightward lurch or to escape the malign consequences of their radical opinions.
What ordinary people can do is refuse to be conned. Justice Amy Coney Barrett recently assured us that “this court is not comprised of a bunch of partisan hacks.” Don’t fall for it. The new Court’s jurisprudence, it seems likely, will have little to do with the Constitution, law, or history of the kind that takes hard study and yields ambiguity. It is powered by the authoritarian philosophy that has captured the federal bench and works assiduously to undermine free elections, equal rights, and racial justice.
Remember that democracy in 2022 has many enemies—smart, well-funded people and groups who study American life with (as H. G. Wells said of his fictional Martians in War of the Worlds) “intellects vast and cool and unsympathetic” and plot destruction of democratic norms. And of those intellects, none are more determined and resourceful enemies of democracy than the packed majority on the post-Trump Supreme Court.