The Debate Over Constitutional Originalism Just Got Ugly

(Bloomberg Opinion) -- Are most members of the Supreme Court violating their oath of office?

Might Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan be committing impeachable offenses?

Did some of history’s most celebrated justices — Oliver Wendell Holmes, Louis Brandeis, Robert Jackson, Earl Warren, Thurgood Marshall, William Rehnquist and Sandra Day O’Connor — also act inconsistently with their oath of office?

Some prominent law professors at distinguished institutions are making precisely that argument. It’s unpleasant stuff, the academic equivalent of “lock her up!” But like that howl of rage, the new argument is resonating in influential circles. Before long, it will probably enter into public debates.

To understand what’s afoot, we need to explore a much-disputed question: How should the Supreme Court interpret the U.S. Constitution?

Many justices think that the founding document contains what Justice Felix Frankfurter called “majestic generalities,” phrases like freedom of speech, equal protection, unreasonable searches and seizures, due process of law.

In their view, the text of the Constitution is binding, but its meaning is not frozen in time. Sex discrimination might violate the Constitution now, even if it was constitutional in 1791 (when the Bill of Rights was ratified) or in 1868 (when the 14th Amendment was ratified). Racial segregation might be unconstitutional now even if those who ratified the equal protection clause had no problem with it.

By contrast, some justices, including Clarence Thomas and the late Antonin Scalia, are “originalists.” They believe that the Constitution must be interpreted to fit with its “original public meaning” — that is, the meaning that members of the public would have given to it at the time of ratification.

The debates between originalists and their adversaries have become sophisticated and elaborate.

Both sides deserve respect and a civilized hearing. Recently, however, things have taken a new turn. Some originalists are arguing that judges who disagree with them are violating their oath of office.

It’s a serious charge. It’s also unfounded.

Here’s what the Constitution has to say:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

Originalists who think that their preferred approach is mandatory point to two words: “this Constitution.” If judges do not follow the original public meaning, their argument goes, they are supporting no constitution, or some other constitution, rather than “this” one.

But that doesn’t follow at all. The Constitution does not tell judges to be originalists. It does not contain a provision saying, “The meaning of this Constitution shall be settled by reference to the original understanding.”

To buttress the argument, those who believe that the oath of office requires originalism contend that in the late 18th century, most people believed in originalism. In their account, it constituted the “interpretive convention” at the time.

As a matter of history, it’s far from clear that that’s the case; it was not the conventional view in 1800, or 1810, or 1820 that justices who did not practice originalism were violating their oath of office. But suppose that originalists are right to say that in the founding period, most people accepted originalism. Would we then conclude that the oath of office requires judges to be originalists?

No. You cannot say that the original understanding is binding because the original understanding was that the original understanding is binding. That would be circular; it would assume the conclusion.

Everyone should agree that the text of the Constitution is binding. It is “this Constitution.” Some originalists act as if the text of the Constitution and the original understanding of that text are the same thing. They aren’t. The equal protection clause is part of the Constitution. The original understanding of the clause is not.

Like any theory of interpretation, originalism has to be defended on its merits, as the best theory of interpretation — maybe because it limits the discretion of unelected judges, maybe because it preserves the separation of powers, maybe because it promotes clarity and predictability.

But even if the arguments for originalism are convincing, it doesn’t follow that judges who reject them are violating their oath of office. It doesn’t follow that Holmes and Brandeis, or Roberts and Kagan, are refusing “to support this Constitution.”

Because originalism is wildly inconsistent with current constitutional law, you might be inclined to say that it is the originalist judges like Thomas who are violating their oath of office. That’s more plausible than accusing judges who reject originalism of doing that — but still, it’s wrong and ugly and a horrible thing to say.

There’s a larger point here. We live in an era in which political disagreements are increasingly turned into accusations of disloyalty, of heresy, of criminality. It’s reasonable to argue about constitutional method and to contend that originalism is terrific or terrible. But it’s not reasonable — in fact it is shameful — to allege that justices who embrace it or reject it are violating their oath of office.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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