ORIGINALISM IN BABY STEPS

Ed Whelan@EdWhelanEPPC

Originalism in baby steps:

1. The Constitution is law. Its provisions–including its amendments–should be interpreted in accord with the meaning they bore at the time they were adopted. (Everyone has this sound intuition with respect to what “natural born Citizen” means.)

1/8:53 AM · Oct 16, 2020·TweetDeck61 Retweets14 Quote Tweets164 LikesEd Whelan@EdWhelanEPPC·Replying to @EdWhelanEPP

2. The Constitution, as amended, sets forth bounds on government power. Originalists dispute among themselves precise limits of those bounds. But all agree what within those bounds the democratic processes are free to operate to revise policies to adapt to changing circumstances.1945Ed Whelan@EdWhelanEPPC·

3. It is the modern project of the “living Constitution” that aims to prevent democratic processes from adapting to changing circumstances. It seeks to *entrench* favored progressive policies–e.g., on abortion.31340Ed Whelan@EdWhelanEPPC·

4. At bottom, the alternative to originalism is *just making it up*. That’s tempting, to be sure, as it’s a way to get the results you want, irrespective of what Constitution says and of how it can fairly be interpreted.11039

Ed Whelan@EdWhelanEPPC·5. How do we know what Constitution means when it says that president must be at least 35? Because originalist inquiry tells us that public meaning of age at time of Framing was in base 10, not base 6 or base 12. (Yeah, innumerates won’t get this.)3438Ed Whelan@EdWhelanEPPC·6. Contra Left’s claim, there are no “clear” provisions of Constitution that don’t ultimately depend on originalism for their clarity.3521Ed Whelan@EdWhelanEPPC·7. If you’re still in doubt, go ahead and take my “Are You an Originalist?” test.Are You an Originalist? – Ethics & Public Policy CenterThe term “originalism” identifies the traditional, common-sense principle that the meaning of the Constitution is to be determined in accordance with the meaning it bore when it was written. There is…eppc.org1224Frederick@Prise88·Replying to @EdWhelanEPPCLOLRobert Blackmer@TJTackleberry·Replying to @EdWhelanEPPCWell-said

Are You an Originalist?

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Published in National Review Online on July 13, 2005


Edward Whelan

BY EDWARD WHELAN
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President Bush’s promise to appoint originalist justices like Scalia and Thomas invites the question: What is this peculiar creature, the originalist?

The term “originalism” identifies the traditional, common-sense principle that the meaning of various provisions of the Constitution (and of other laws) is to be determined in accordance with the meaning they bore at the time they were promulgated. The status of originalism as the only legitimate method (or class of methods) of constitutional interpretation inheres in the very nature of the Constitution as law. As Chief Justice Marshall explained in his landmark 1803 opinion in Marbury v. Madison, the Constitution is “committed to writing” so that its “limits may not be mistaken or forgotten.” To disregard its limits is to “reduce[] to nothing what we have deemed the greatest improvement on political institutions — a written constitution.”

It is significant that the term “originalism” appears to be of relatively recent vintage. The reason for this is not that there is anything novel about originalism. Precisely the opposite. Until recent years, originalism had been so unchallenged as constitutional orthodoxy that there was no reason to develop a term that would distinguish it from any rival. As Justice Scalia has put it, “in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing.” But the rise of the “living Constitution” — the Orwellian euphemism that liberal activists have used to pretend that the Constitution has somehow “grown” to entrench forever their own policy preferences — made necessary a label for what everyone had previously recognized as elementary. 

An analogous semantic development might illustrate this point. According to the Oxford English Dictionary, the term “heterosexual” came into usage barely a century ago. This is obviously not because heterosexuals did not previously exist, but rather precisely because what we now call heterosexuality had been widely understood to be normative.

Here’s my simple single-question multiple-choice test for whether you are an originalist:

Q. The Constitution provides, as one of the criteria to be eligible to become president, that a person must be a “natural born Citizen” (or, alternatively, in a provision that long ago ceased to apply to any living persons, “a Citizen of the United States, at the time of the Adoption of this Constitution”) How would you figure out what the phrase “natural born Citizen” means?

(A) You would determine that the “natural born Citizen” requirement, whatever it means, is obviously a relic of a benighted and xenophobic past, a past that “evolving standards of decency,” as reflected in modern European electoral practices, requires be abandoned. It simply isn’t fair, you would conclude, that any candidates should be excluded by such an arbitrary requirement from running for president. You would invoke “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” as you instead substituted your own arbitrary criteria for eligibility.

(B) You would try to discern the current meaning of the phrase “natural born Citizen.” Its closest connection would appear to be to the concept of natural childbirth. Therefore, you would conclude that only those whose mothers did not use drugs during birth satisfy the requirement.

(C) You would look to literature as your guide. Macbeth finds great comfort in the promise that “none of woman born/Shall harm” him. But his comfort proves unwarranted when Macduff, who “was from his mother’s womb/Untimely ripp’d,” kills Macbeth. It follows that anyone whose birth was by Cesarean section is not a “natural born Citizen.”

(D) You would try to determine the public meaning of the “natural born Citizen” requirement at the time that the Constitution was adopted. 

If it is obvious to you that the proper response is (D), then you are an originalist. If you think that the answer might be (A), then you are probably Justice Stevens, O’Connor, Kennedy, Souter, Ginsburg, or Breyer. 

For what it’s worth, although I haven’t researched the issue, my own strong intuition is that the phrase “natural born Citizen” is meant to identify those persons who were citizens at birth, by virtue of the citizenship laws in effect at the time, as opposed to those who were naturalized after birth. And, any of you lawyers out there, please don’t tell me that the issue isn’t, or might not be, justiciable; my question is how to determine what the provision means, not whether courts would in fact decide it.

Some theorists, of course, contend that certain constitutional provisions, like “due process of law” or “cruel and unusual punishments,” are, to various degrees, open-ended, and deliberately so, and that these provisions were understood to delegate considerable discretion to judges to supply their meaning over time. This short essay is not the occasion to examine the validity of those claims or their compatibility with American principles of representative government. For present purposes, it suffices to observe that these theorists either expressly acknowledge or implicitly concede the legitimacy of originalism and merely contest with other originalists what originalism yields.

I very much suspect that many English speakers two or three generations ago were a bit nonplussed to be labeled “heterosexuals.” I hope that, if you have just discovered that you are an originalist, your reaction is more like the delight of Molière’s Monsieur Jourdain on learning that he had been “speaking in prose” all his life without knowing it.

– Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to National Review Online’s “Bench Memos” blog on judicial nominations.

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Michael Connors@TheShortestWay·Replying to @EdWhelanEPPCLet’s just leave it at this: From Joseph Story’s Commentaries on the Constitution of the United States, abridged by the author, preface, p. vi.1Doug Flynn@doug_flynn·Replying to @EdWhelanEPPC@DanRather needs to read this..2ProveIt2Me@CrustyOlSkeptic·Replying to @EdWhelanEPPCBut…those… “muh living document arguments”….

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1 Response to ORIGINALISM IN BABY STEPS

  1. “To disregard its limits is to “reduce[] to nothing what we have deemed the greatest improvement on political institutions — a written constitution.”

    This is precisely what the democrats have done for decades, since the so-called “right to privacy” was discovered hidden in the words of the Constitution, and with ever subsequent “revelation:’ eg ‘right’ to abortion, ‘right’ to homosexual marriage.

    Why? they know they cannot do what the words of the Constitution demand for amendment. Their “right” creation is simply and end run around what the Constitution requires for its own amendment. See more discussion: https://the-american-catholic.com/2020/09/23/roe-unconstitutional-amendment/.

    Instead of the required 3/4ths national majorities required by the Constitution, all the democrats need is 5 votes of the [so-called] justices to, effectively amend the Constitution. The people of 47 states had already voted in representatives who made abortion illegal. 7 ‘justices,’ some of them corrupt as history has now shown, overruled the will of the American people in creating the ‘right’ to abortion in Roe.

    This is why the democrats are now so rabid about the upcoming presidential election; and why they smeared Kavanaugh and so opposed ACB – they realize that sauce-for-goose-sauce-for-gander might come back to bite them if the justices realize with what legislative power the democrats have endowed them.

    Guy, Texas

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