The Problems With Originalism - The New York Times
by Prof. Ken Levy (LSU)
At Judge Neil M. Gorsuch’s confirmation hearing on Monday, Senator Dianne Feinstein, Democrat of California, started the ball rolling by remarking that she found his “originalist judicial philosophy to be really troubling.” Troubling it is.
Originalism is just one of the theories that Judge Gorsuch shares with the late Justice Antonin Scalia; another is its closely related cousin, textualism. Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.
Consider Brown v. Board of Education (1954), a case in which the Supreme Court was confronted with the question whether it should continue to follow its decision in Plessy v. Ferguson (1896). The Plessy court had held that providing “separate but equal” public schools for African-American students was consistent with the equal protection clause of the 14th Amendment. If the Brown court had considered only the text of the equal protection clause as it was understood by the ratifiers (the 39th Congress), it would have had little choice but to affirm Plessy. After all, as far as the ratifiers were concerned, African-American public schools could be just as good as white public schools.
But this decision would not have been correct. By 1954, it was clear that, because of Jim Crow and unequal funding, African-American public schools were markedly inferior to white public schools. So genuine adherence to the equal protection clause required the court to abandon rather than follow the ratifiers’ understanding and finally cease their practice of “separate but equal” for public schools.
Despite the serious problems with textualism and originalism, we can expect to hear Republicans on the Senate Judiciary Committee champion these theories in their attempt to send Judge Gorsuch to the Supreme Court. But Democrats should make clear that neither theory is prescribed by the Constitution or reflects a convincing picture of the founders’ intent. Nor, in the end, do they prevent the judicial activism that Justice Scalia supposedly abhorred. On the contrary, they are nothing more than thinly veiled disguises for modern political conservatism.