Are You an Originalist?

NRO ^ | July 13, 2005, 8:08 a.m. (Eastern Time) | Edward Whelan

[Checkers]

Are You an Originalist? Take this simple test and find out.

By Edward Whelan

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 NRO's "Bench Memos" blog on judicial nominations.

[RKV]

Yep. I am an originalist.

MONEY QUOTE: " 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.'"

[lilylangtree]

I'm originalist.

[kinsman redeemer]

I placed a sticker on the car that says,
"Original Intent. Period."

[mosquitobite]

great quote

[conservativebabe]

Ooooooo, good one, where'd you get that?

[kinsman redeemer]

Made it.

I don't generally put stickers on the car... but I made an exception in this case.

This is going to be a huge battle. We need to not give an inch on this.

[the gillman@blacklagoon.com]

This is going to be the big battle. Everything else is just a minor skirmish.

http://www.freerepublic.com/focus/f-news/1441807/posts

[antiRepublicrat]

originalist justices like Scalia and Thomas

Scalia an originalist? What about Gonzales v. Raich? His attitude in that was "Well, we allowed expanded federal powers long ago, so we'll keep allowing them now." An originalist would say "These powers were not originally given to the federal, so it is not allowed."

[conservativebabe]

You should try to sell that on Cafepress.com

It's very clever.

[cvq3842]

Good slogan!

The Constitution is a contract. Contracts should be amended according to the amendment procedure set forth in the contract. Not by a court.

[RKV]

You have hit the nail on the head with the problem with stare decis (precendent). Once you get a bad precedent, when do you reverse it? See where the Slaghterhouse cases have led us to with respect to the commerce clause for instance.

[RKV]

oops, my bad - stare decisis

[Dead Corpse]

D. However, If the mother was here illegally, on vacation, or a work visa, then the child could be said to have been born here, but not be due the Rights of a US citizen. This artificial loophole has created an entire "anchor baby" industry. The questionable legal status of the mother would negate the "natural" part of "natural born" IMO.

[kinsman redeemer]

regulate commerce

Perhaps the single most abused two words in history.

[Dead Corpse]

The only precedent the USSC is supposed to messure against is the US Constitution. Their using lower court rulings as stare decisis, not to mention international court rulings, is criminal. Impeach them or dig out the tar and feathers.

[cvq3842]

Constitutional law is such a tangle I don't know where to start.

[RKV]

See also "general welfare."

[RKV]

What you said. Especially about impeachment - we are overdue for the impeachment of several justices - Ginzberg for one.

[kinsman redeemer]

Right.

And if I may add the most recently abused words, "public use."

I heard about a George Carlin routine (it must be recent - if the story is true...). He says, "Why not save the Iraqii people a whole lot of trouble. We can just GIVE OUR Constitution to them... We don't use it anymore!"

[bmwcyle]

All my life.

[mercy]

I'm such an orignalist it is plain to me that it all began to go down hill when they expanded the vote beyond male property owners.

[RKV]

I always liked the one about the amendment we need to the constitution. Amendment XXVIII "This time we really mean it!"

[mugs99]

I'm such an orignalist it is plain to me that it all began to go down hill when they expanded the vote beyond male property owners

Lol...
The Constitution has been under attack since the day it was signed. I think the rapid eroding of rights we are seeing today began when the government was given authoritarian power after the Spanish American war.
...

[RipSawyer]

>>>>>>I'm such an orignalist it is plain to me that it all began to go down hill when they expanded the vote beyond male property owners.>>>>>>>>>>

That falls in the catefory of truth SO TRUE that it is dangerous to speak or write it!

[RipSawyer]

...and catefory falls in the category of typographic error....

[RedBeaconNY]

Thanks for the post- describes me to a T ;)

[GladesGuru]

">>>>>>I'm such an orignalist it is plain to me that it all began to go down hill when they expanded the vote beyond male property owners.>>>>>>>>>>

That falls in the catefory of truth SO TRUE that it is dangerous to speak or write it!"

The danger increases rapidly when his wife reads his post.

[Constitutionalist Conservative]

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.

They are, however, willing to make an exception in the case of Arnold Schwarzenegger. :-)

[k2blader]

This needs BUMPing..

[Modok]

I'm an Originalist.

Now the million dollar question - is President Bush an Originalist?

[k2blader]

Now the million dollar question - is President Bush an Originalist?

Ummphh.. I would say no.

[processing please hold]

Now the million dollar question - is President Bush an Originalist?

Ummphh.. I would say no.

If not, then what is he?

[RockinRight]

Here's my ratings (based on previous decisions) of the existing justices. This is just something I compiled myself a while back (before eminent domain case but that wouldn't have changed much except knocking a few points off of Kennedy):

Number one being the most originalist of course, followed in the parentheses with a "grade" I've assigned to them out of 100:

1. Clarence Thomas (97)
2. Antonin Scalia (93)
3. William Rhenquist (92)
4. Anthony Kennedy (44)
5. Sandra Day O'Connor (44)
6. David H. Souter (39)
7. John Paul Stevens (28)
8. Ruth Bader Ginsburg (19)
9. Steven G. Breyer (17)