Justice Antonin Scalia once quipped, “I’m an originalist and a textualist; [but] I’m not a nut.” During Senate review of Brett Kavanaugh’s Supreme Court nomination, liberal groups tried to raise fears that Kavanaugh was in fact a “nut.”
As Scalia’s comment suggests, he was not a consistent originalist. Early returns suggest that Kavanaugh isn’t one either. Aside from Justice Clarence Thomas, no consistent originalist has graced the court for many years.
This is odd, because originalism — interpreting a legal document according to the understanding of its adopters — is not at all “nutty.” On the contrary, it is the prevailing method for construing almost all other documents, including much of the Constitution. It is the method the founders expected us to use. It was the guiding principle for almost all Supreme Court justices until well into the 20th century.
But for political reasons, the dominant legal culture now insists that we exempt some sections of the Constitution from legal principles applied everywhere else. They urge us to use instead a poorly supported doctrine called “living constitutionalism.”
Suppose we did have an originalist Supreme Court — what would be different? Certainly there would be differences, but they would be less than liberals fear or libertarians hope.
Consider the long-standing debate over the constitutionality of paper money. Advocates of “hard money” claim that the Constitution, as originally understood, bans any currency but metallic coin. Some “living constitution” proponents employ that argument to claim originalism is unrealistic.
Yet both sides are wrong. The founding-era evidence shows clearly that the original Constitution granted the federal government power to issue paper money. An originalist Supreme Court would make no changes in that area.
A longstanding charge against originalist interpretation is that it would reverse Brown v. Board of Education (1954). This was the famous Supreme Court case that relied on the 14th Amendment’s Equal Protection Clause to ban segregation in public schools. Again, however, the opponents of originalism are attacking a straw: Whatever those adopting the 14th amendment thought about segregation itself, by the time the court decided Brown we knew from experience that segregation was inconsistent with the original meaning of “equal protection of the law.”
In the area of federal regulation an originalist Supreme Court would make some changes. It would check federal intrusion into purely local activities. It would void Obamacare, returning insurance law to the states. It would void some federal criminal statutes that duplicate traditional state law.