Why Originalism Is an Intellectually Questionable Constitutional Philosophy — and Why Conservatives Are Disingenuous when They Depend on It to Achieve Reactionary Political Positions

17 October 2011

“Why do we care about this subject?”

Competing philosophies of law are often political vehicles toward freedom or oppression.

If we misunderstand law’s evolving direction, we put ourselves and our democracy in jeopardy.

“So, what’s in this essay that affects me?”

This essay involves the Republican Right’s seizure of an intellectually disingenuous form of constitutional interpretation called “originalism.”

My objection is not to originalism as one means (among many complementary techniques) of constitutional interpretation.

I simply object to its proponents’ use of the doctrine as the sole method of interpretation — generally under circumstances in which the exclusion of other methods suits their (usually unstated) reactionary political purposes.

A caveat

None of what I’ve said so far is self-evident.

Consequently, I seized on a concrete example that law professor Geoffrey R. Stone and Ken Paulson recently came up with. It illustrates why simplistic thinking and sound bites only rarely have answers that serve both reality and freedom.

Bear with me. What follows may be worth your time, if you like seeing through the poorly thought out ideas that many of our leaders try to foist on us.

“What is originalism?”

Originalism is the idea that the Constitution should mean only what the Framer’s thought it meant.

Originalist lawyers and judges look at the Constitution’s words, their meanings at the time, and the Framers’ writings to interpret the document’s meaning.

On the surface, this sounds exactly like the correct way to interpret the document.

Originalism’s intellectual inadequacies are best discovered in concrete examples — but first, let’s prepare the intellectual groundwork with more generalized criticisms of the method

Originalism’s most basic flaw is that flies counter to the permanent nature that constitutions are intended to have.

Philosophically speaking, originalism’s intellectual inadequacies have to do with:

(a) our difficulty in corralling the precise meanings of words, especially when they are used to build abstractions like “freedom;”

(b) the problem we have in accurately envisioning the contextual limits of these centuries-old abstractions;

(c) the conundrum presented by trying to estimate the Framers’ own varying abilities to foresee and provide constitutional leeway for the future’s social and technological changes;

(d) our inability to find out how the Framers themselves would have reacted, even to the situations they might have foreseen;

(e) our obviously insurmountable difficulty in trying to attribute an overall intent to a group of people, who clearly had interpretive disagreements, even after having written each of the Constitution’s phrases;

and

(f) the concrete situational problems posed by the evolution of society, circumstances, and technology through time — all of which have taken us further and further from the social and political milieu that spawned the Constitution.

Here is a contextually concrete example of why originalism ultimately fails as a complete and self-contained interpretive philosophy — the case New York Times Co. v. Sullivan

Geoffrey R. Stone and Ken Paulson came up with this example, after seeing what U.S. Supreme Court Justice Antonin Scalia, an originalist, recently and pejoratively said about an American libel case that took place in 1964.

Using the First and Fourteenth Amendments, the U.S. Supreme Court — in New York Times Co. v. Sullivan (376 U.S. 254) — established today’s prevailing standard that libel of public figures has to include the element of malice. Originalist Justice Scalia thinks that the Court got the case backwards, despite the fact that the Court was unanimous in reaching its decision.

The background to New York Times Co. v. Sullivan

L. B. Sullivan, Montgomery Alabama’s Public Safety Commissioner, had sued the newspaper and four clergymen for running an advertisement that made inaccurate statements about a civil rights protest in his city.

The clergymen — now prominent figures in American civil rights history, whose only connection to Sullivan were that they had been named in the Times advertisement — were Ralph Abernathy, Joseph Lowery, S.S. Seay, Sr., and Fred Shuttlesworth.

The Times advertisement, which was attempting to raise money for Martin Luther King Junior’s legal defense, contained factual misstatements of the kind that understandably infuriate even un-bigoted public officials:

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery.

Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My Country, 'Tis of Thee."

Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day.

Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester.

The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets.

Although the police were deployed near the campus in large numbers on three occasions, they did not at any time "ring" the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied.

Dr. King had not been arrested seven times, but only four, and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.

376 U.S. 254 at pp. 258-259 (footnotes omitted)

The key fact that ultimately decided the case — Commissioner Sullivan was not named in the advertisement

Sullivan’s connection to the alleged libel was remote. He had not been named in the advertisement.

The gist of his legal claim (fully compliant with then existing Alabama libel law) was that readers would know that the advertisement blamed him, in his professional capacity as police supervisor, for law enforcement’s alleged wrongdoing.

When the Times refused to retract its erroneous statements, as Alabama law required in cases of libel, the Alabama court’s all-white jury awarded Commissioner Sullivan $500,000.

The Times reasoned that there was no reason to apologize to someone who had not been named in the disputed publication. And the clergymen involved denied their portions of the retraction request because the advertisement had named them without their knowledge.

What the Supreme Court decided about the facts of the case

The Court observed:

We think the evidence against the Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice.

We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury's finding that the allegedly libelous statements were made "of and concerning" respondent.

376 U.S. 254 at pp. 287-288

What the Court then said about (a) libel of a public figure and (b) libel’s connection to freedom of speech

Justice William J. Brennan, who wrote the unanimous Sullivan decision, explained that Alabama’s too-broadly applicable libel law worked against freedom of speech.

Brennan pointed out that the United States had never permitted “government” to sue people for criticizing it. Consequently, it made no sense to permit the State of Alabama to turn that freedom on its head by permitting unnamed government officials to use personal libel laws to bring the same kind of prohibited lawsuit:

This reliance on the bare fact of respondent's official position [rather than his actual name] was made explicit by the Supreme Court of Alabama.

"We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body."

This proposition has disquieting implications for criticism of governmental conduct.

For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."

The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed.

Raising as it does the possibility that a good faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.

We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.

376 U.S. 254 at pp. 289-292 (footnotes and citations omitted, paragraphs split)

What today’s Justice Antonin Scalia, an originalist, thinks about the decision in Sullivan

Ken Paulson, president and CEO of the First Amendment Center, quoted Justice Scalia’s comments regarding New York Times Co. v. Sullivan at the 2011 Aspen Institute Washington Ideas Forum.

Justice Scalia made it clear that he considers the Court’s decision to have been an unjustifiable deviation from the Constitution’s actual meaning:

Now the old libel law used to be (that) you’re responsible, you say something false that harms somebody’s reputation, we don’t care if it was told to you by nine bishops, you are liable . . . . New York Times v. Sullivan just cast that aside because the Court thought in modern society, it’d be a good idea if the press could say a lot of stuff about public figures without having to worry.

And that may be correct, that may be right, but if it was right it should have been adopted by the people. It should have been debated in the New York Legislature and the New York Legislature could have said, ‘Yes, we’re going to change our libel law.’

But the living constitutionalists on the Supreme Court, the Warren Court, simply decided, ‘Yes, it used to be that … George Washington could sue somebody that libeled him, but we don’t think that’s a good idea any more.’

And on a superficial level that argument sounds as if it might hold water.

Law professor Geoffrey R. Stone questions Justice Scalia’s originalist reasoning

Stone first put the case in its societal context. Nineteen sixty-four was the time of the civil rights movement.

Southerners cared about national opinion. To discourage unfavorable coverage of segregationist practices, they routinely filed libel suits for technically incorrect statements made during news coverage. The suits were intended to discourage the media from exposing southern bigotry and racial violence.

This strategy was made especially effective because Southern juries were inclined to grant excessive damage awards against those who were embarrassing the South.

Professor Stone criticized Justice Scalia’s reasoning on grounds, which introduce us to originalism’s intellectual weakness (when applied as a sole interpretive philosophy)

Professor Stone wrote:

In Justice Scalia's view . . . .

The Constitution has nothing to say about the issue in New York Times v. Sullivan and it's up to the people of New York to change their law, if they want to do so.

There are many things wrong with this argument, and with originalism generally . . . Justice Scalia suggests that the solution to the problem in New York Times was for the New York legislature to change its libel law.

But the New York legislature had absolutely nothing to do with this situation. This was a lawsuit in Alabama, decided under Alabama law by an Alabama jury. The New York legislature was completely powerless to affect the matter in any way.

It was precisely this fact that made a constitutional decision necessary. It's bad enough that Alabama wants to censor what its own citizens can read, but what the situation in New York Times v. Sullivan demonstrated was that the nation cannot constitutionally allow each state to censor speech on its own, because in a national marketplace of ideas censorship in one state effectively precludes the press from distributing news to people nationally.

In Justice Scalia's world, the New York legislature could do nothing to protect the right of its citizens to be informed, the national government could do nothing to protect the New York Times (and all other national news outlets) from such censorship, and as a result citizens throughout the nation would have their capacity to learn and to understand their own nation squelched by the State of Alabama.

The Supreme Court in New York Times quite correctly concluded that such an outcome was profoundly inconsistent with what the Framers of the First Amendment had in mind.

Stone’s analysis demonstrates originalism’s dismissal of the idea that Constitutional abstractions were arguably intended to apply beyond the conditions that were manifest during the Framers’ time.

In other words, according to Stone, Justice Brennan, and Brennan’s eight judicial colleagues, at least some of the Framers might well say today:

We hadn’t thought about the example in New York Times Co. v. Sullivan.

But it’s clear to us — given the political importance of freely voicing one’s concerns about government — that Alabama should not be allowed to interfere with a New Yorker’s ability to speak plainly about conditions in other states.

We see that Justices Scalia and Thomas value interpretive simplicity above the complexity (and boundary shifting) that inherently comes with guessing what anybody long dead would think about arguably unforeseeable future circumstances.

The fact that Justice Scalia thinks the nine unanimous 1964 justices were wrong gives us the flavor of the man (whom I have met and briefly spoken to).

Originalism’s disingenuous misunderstanding of the complexities inherent in re-writing the Constitution, so as to keep up with societal change

Implicit in the originalists’ position is a willingness to leave society completely at the mercy of its divisions.

Constitutional amendments and conventions are not easy to come by. Originalists ignore the statistically improbable flukes of History that successfully occasioned the United States’ constitutional convention.

It is intentionally deceptive for originalists to pretend that there are not near-insurmountable hurdles to adequately tailoring the Constitution to changing times in the literal-minded way they wish.

That stalwart blindness to the conundrum posed by cultural change over time (and the Constitution’s adaptation to it) is a political choice, not a necessary legal one.

Left to their originalists’ devices, these United “States” would effectively become a federalist anarchy.

Justice Scalia’s near nit-witted comment about the New York legislature being a solution to the New York Times Co. v. Sullivan free speech dilemma is indicative of the lack of analytical depth he occasionally brings to the modern legal table.

The issue of constitutional permanence

Originalism is antithetical to the idea of having a quasi-permanent constitution.

If Justices Scalia and Justice Clarence Thomas (the other of the Court’s present-day originalist ideologues) had their way — Americans would have to add amendments to the Constitution all the time. This so, just to cover developments that the Framers could not foresee specifically enough to clearly include in the Constitutional text.

Justice Scalia is either disingenuous or surprisingly simplistic (given the man’s intellect), when he pretends that at least some of the Framers were not cognizant of the fact that their descendants would have to non-textually modify the scope of document’s words.

Consider, for example, the obvious privacy problems that our evolving communications, computer, and surveillance technologies bring with them. Are these really things that we (or the Framers) would want to have to call a Constitutional convention about?

The problem with passing time is that everything changes. The power of verbalized legal abstractions is that we can create amorphously defined conceptual “bins” to allow Constitutional law to accommodate time’s changes.

On the procedural side, the Framers — having lived through the failure of the Articles of Confederation, and their own struggles to come up with the Constitution itself — knew darn well how hard it is to achieve consensus on something as controversial as a Law of Laws.

Ergo and arguably, the Constitution the Framers designed was intended to last. Not to be subjected to an absurd array of ever-continuing amendments that originalists would have us insist on.

As a practical matter, in successfully achieving reasonably effective and lasting governance — even if the Framers did not envision the necessity for conceptual modifications of their words through time — there is no categorically persuasive legal or social reason that we should not.

Dealing with originalists’ mud-slinging whitewashes — originalism is just as politically “activist” as any other interpretive philosophy

Any constitutional decision is a political one, no matter how arrived at.

Orginalism’s activist sin is simple. It attempts to impose 18^th Century standards on a 21^st Century culture. If that isn’t a political wrench, I don’t know what is.

The moral? — wisdom is about balance

Wise law incorporates the need for Constitutional change over time by incorporating evolutionary and originalist philosophies.

Pretending that there is a sole methodological way to avoid depending upon individual justices’ subjectively reached judgments is unrealistic.

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Why Originalism Is an Intellectually Questionable Constitutional Philosophy — and Why Conservatives Are Disingenuous when They Depend on It to Achieve Reactionary Political Positions