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Through the Copy Filter

‘Originalism’ is not so original

The history of the word ‘originalist’ and what it means for the Supreme Court

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Editor’s note: Through the Copy Filter is a column from the Copy Desk addressing topics relating to grammar, style, and language (occasionally relating to current events).

In mid-September, amid a global pandemic, country-wide Black Lives Matter protests, and the fast-approaching presidential election, Supreme Court Justice Ruth Bader Ginsburg died from complications due to cancer. In a rush to fill the ninth Supreme Court seat before the election, the Republican-majority Senate, in a 52-48 vote, confirmed the newest associate justice: Amy Coney Barrett.

Let’s do a little bit of what the Copy Desk does best: fact-checking. Barrett is 48 years old, was raised in Louisiana, is a fervent Catholic, leans conservative, criticizes former president Barack Obama’s Affordable Care Act in regard to contraception, served on the Seventh Circuit for the Court of Appeals for just over three years, and is a self-proclaimed originalist.

There’s a lot to address in that sentence — part of which I’ll loop back to later — but the point I want to focus on is her being an originalist. 

As a linguist, originalism is a weird concept, because originalists try to interpret the Constitution in the same way those who ratified the document did in the 1780s — a good 240 years ago. Language changes with time, as does society, thus making language change some more. It’s kind of a cycle, and it’s been happening for as long as humans and language have existed.

An example of this semantic change can even be seen with the origin (no pun intended) of the word “originalist.” According to the Oxford English Dictionary (OED), the first documented use of “originalist” appeared in 1835, alongside this definition: “a person who acts, thinks, or otherwise behaves in an original way.” “Original” here means innovative, different — deviating from the norm. However, this understanding of the word “originalist” is now noted as “rare” by the OED. The second definition of “originalist” is denoted as “an advocate or proponent of originalism,” first appearing in the press only 40 years ago, in 1980.

Originalist theory is mostly a constitutional theory that comes in two branches, according to associate professor of political science Scott Lemieux. One is original intent, and the other is original public meaning, in which “what matters is not so much what the framers and ratifiers subjectively intended or expected as the meaning of text they enacted at the time.” Lemieux reasoned that original public meaning is the more endorsed form of originalism.

Determining original public meaning isn’t easy. How can people even assume that they know the thoughts of the ratifiers and framers of the Constitution at the time of its writing? Going back to the more contemporary meaning of “originalist,” it doesn’t seem very “original” to try to interpret the Constitution with a different timeframe and society in mind. If one could really determine original public meaning in a significant way, would we really want to return to it? Most of us (hopefully) would say no.

Much like the new usage of “originalism” appearing in 1980, the emergence of originalist theory came with the nomination of Robert Bork to the Supreme Court by Ronald Reagan in 1987, according to Lemieux. Bork was a late convert to originalist theory and was ultimately voted down by a bipartisan majority because he outwardly spoke out against the Civil Rights Act, believing it to be unconstitutional.

Since then, only Justices Clarence Thomas, Neil Gorsuch, and the late Antonin Scalia have proclaimed to be originalists, according to Lemieux.

Even though originalism tends to be associated with conservatives, Lemieux emphasized that it’s not necessarily a corollary relationship.

“Not all originalists are conservatives, but conservatives tend toward originalism, because obviously using the original public meaning of text enacted in 1787 is going to generally produce more conservative results than sort of trying to figure out what we mean by these phrases in 2020,” Lemieux said.

No matter who Trump nominated, he was likely to nominate someone who aligned with his political views, whether the incoming justice adhered to a grand theory or not. 

Even though having three originalists on the Supreme Court might play a role in rulings, Lemieux noted that we shouldn’t give originalism too much credit in terms of the amount of work it is doing in the Supreme Court. For example, Gorsuch (an originalist) and Chief Justice John Roberts sided with the four Democrat justices in the June 15 ruling declaring that Title VII protected LGBTQIA+ workers from discrimination

Scholars speak on originalism in the way I’ve described, but politicians use the word “originalist” in a slightly different, more obscure way: a discourse tactic.

“Dominantly ... in particular in its use in politics of judicial nominations, it’s more of a wink-wink signal than it is kind of a theory that is doing a lot to influence what judges think,” Lemieux said. “When Trump says ‘Barrett is an originalist,’ what he means is that she’ll produce outcomes that conservatives like on most politically salient constitutional questions.”

Some conservatives have argued that originalism is a neutral interpretation of the Constitution, but of course it’s quite impossible to interpret any sort of text neutrally — each person brings their own perspectives and biases when interpreting language.

When reading a document like the Constitution, the questions around ambiguities cannot be divorced from politics; judges, no matter their political leaning, will interpret in accordance to their beliefs. Even originalists will not always stand by their grand theory to rule on a case.

Originalism, like any other grand theory, is not a neutral position. The American people, at times, must rely on nine individuals — nominated by the (very political) office of the president — to interpret language and secure our rights on a national level.  

“It’s not an insult to say that Barrett won’t interpret the law neutrally, [because] it’s not really the job of the Supreme Court justice,” Lemieux said. “I think the real question is, how much power are we comfortable with the Supreme Court having, given that reality?”

Reach Co-Copy Chief Diana Davidson at arts@dailyuw.com. Twitter: @dianavdavidson

 

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