An Undemocratic Democracy

Originalist textualism is based on three premises, none of which hold up to critical scrutiny.

The first is that the Constitution is legitimate because it was enacted through a historical social contract: a free and democratic plurality of Americans chose to accept it, and to bind their descendants to the text unless they otherwise altered the law through amendments.

But this cute democratic narrative has little truth to it. As scholars both radical and moderate have pointed out, a significant majority of Americans had little say over the elitist document. Women, the poor, and of course African-American slaves were all left out of the drafting process, and then denied (at the very least) many civil and democratic rights after its passing.

This exclusion was justified at the time — and remarkably, in the case of some members of the Federalist Society, as recently as the 1980s — with the argument that these groups were virtually represented by the white propertied men who claimed to speak on their behalf. The interests of African-American slaves, in other words, were represented by their masters.

Textualists today have dropped that obviously fatuous historical justification. Now they tend to argue that, whether or not certain historically marginalized groups were permitted a democratic voice at the time, it is now in their benefit to accept the status quo.

But this is just a spruced-up version of virtual representation. What textualists are saying is that since historically marginalized groups are ostensibly content with the constitutional order, they can go ahead and stamp it as a legitimated document, retroactively and without consultation. This is patently undemocratic reasoning that has nothing to do with the actual history of the Constitution.

More importantly from a progressive standpoint, it characteristically ignores the particularly virulent forms of patriarchy, racism, and class domination that existed at the American republic’s outset. And it enables textualists to dismiss the continued impact of these forms of repression by ignoring the role the law plays in perpetuating them.

Law and Language

The second premise of originalist textualism is that, since the Constitution was historically legitimated by “the people,” judges should respect the literal meaning their words had at the time. It is not for a judge to overturn the democratic will of the people unless the language of the legal text requires them to do so.

This is the main thrust of Antonin Scalia’s argument in his book A Matter of Interpretation: it’s up to judges to determine the original meaning of a legal text and render justice accordingly. Over the course of his book, Scalia cites several legal examples. But shockingly, he never actually indicates why linguistic interpretation can function the way he suggests. Indeed, it is strange but perhaps appropriate to see originalist textualists demand that judges not enact their philosophy while defiantly asserting unproven and shaky philosophical theses about language and meaning.

It is not clear why, say, a dictionary from a given period can tell us the “literal” meaning of a word. At best, dictionaries can offer hints about how words were and are used in a given community of speakers. But dictionary definitions cannot resolve deep disputes about the meaning of squishy and contested terms such as “liberty” or “equality.”

In the law, the only place where we can potentially speak of literal meaning is where the text appeals to strong referents: for instance, the stipulation that one must be over thirty-five to be president. It’s quite another matter when a word like “speech” is the object of interpretation.

Originalism and Judicial Activism

Finally, there is the third premise: that judges who interpret a text beyond its original and literal meaning are reneging on their duty to apply the law rather than make it.

Of the three, this is the one premise that could potentially find favor in left circles. Given the choice between popular democracy and empowered justices, the Left should always be more partial to the former. But even here, originalist assumptions run aground.

Textualists are wrong to think that judges are practicing restraint when they search out the literal meaning of legal texts. Because there’s no literal meaning to be found, textualists just as surely allow their ideological views to color their verdicts.

Whether the issue is affirmative action or gun control, these debates are moral and political questions about what the law should be. Textualists try to evade this conclusion by substituting their argument about what constitutes good judging for a more obviously subjective one about the politics of judges. But this evasion is entirely self-serving.

Originalist textualists are no less activist than their peers. They’re just less open about it.

The Specific Danger of Originalism

So much for the three premises. Once broken down, it’s clear that originalist textualism is an analytically shoddy way of thinking about law.

But of course originalism’s facile logic will not make it disappear. Conservatives will continue to advance the philosophy because it lets them pose as pious interpreters of legal texts, rather than as the ideological adjudicators they actually are. From empowering Super PACs in Citizens United to rolling back affirmative action, textualists have reliably advanced the goals of the conservative movement while trumpeting their unbiased heart.

With the imminent appointment of Neil Gorsuch, an even more reactionary originalist than Antonin Scalia, progressives can expect to see similar judicial attacks on abortion rights and civil rights. All this will be done by judges claiming that they are merely interpreting the law rather than transforming it, safeguarding popular sovereignty rather than abridging it. It is this last quality that makes originalist textualism so noxious.

The Supreme Court will never be a beachhead of radicalism, and nine robed judges will never be the guardians of democracy. But textualists need to be singled out as especially malicious because of their self-portrayal as uniquely unbiased and respectful of democracy.

They are neither. Gorsuch and his ilk are little more than sanctified handmaidens of American reaction.