I was flipping around at YouTube and saw US Senator Ted Cruz (R-TX) spoke, with his usual arrogance, in the Senate about originalism. Here it is. In this video excerpt, Cruz says the 14th Amendment codified, once and for all, in the US Constitution, equal protection under the laws, but gave the example that schools should not be segregated by race. He then said, Plessy v. Ferguson (1896), which upheld the separate but equal doctrine, was wrong because the 14th Amendment meant equal protection under the laws, something it took the US Supreme Court to reverse in Brown v. Board of Education (1954).
There are two immediate problems here: First, at the time the 14th Amendment was ratified, there were already racially segregated schools in Washington, DC, and other places, and nothing in the debates at the time which would prove the majority of Congressmen were going to immediately outlaw racially segregated schools. See this excellent summary of originalism and its limitations in Vox. Second, Plessy was about segregation allowed in public transportation, not schools, so it is not that Brown overruled Plessy on segregated schools; it overruled Plessy on the basis that separate but equal was a false doctrine based upon logic that could no longer be morally enforced.
Cruz opened his argument with a non-sequitur, which is to deny originalism is about original intent. Instead, he said it meant original meaning. That remains so funny to me, since one of the original expounders of originalism, Justice Story, stated the Constitution, as with all written "instruments," is to be construed "according to the sense of the terms, and the intentions of the parties." Robert Bork, another originalist, in Bork's polemical work, The Tempting of America, favorably cited to Story's statement (see page 6 of the book). Bork, in his book, preferred to use the phrase "original understanding," which is sort of like Scalia's semantical dodge, "original meaning." I call both semantical dodges because each jurist wants us to believe they don't mean the intent of the Constitution's framers, or later entire Congresses and Presidents, but they are somehow discerning the meaning of the Constitution through the general understanding of words used at that time. So, the people who write the laws, and the words contained in the laws, are somehow not part of the people in the society in which they lived while they were writing the laws? There is a better word for these originalists' type of argument: sophistry.*
This is not to say there is no philosophical foundation for originalism. Indeed, in 1827, Justice John Marshall, in Ogden v. Saunders, wrote:
On this subject also, the Court has taken such frequent occasion to declare its opinion as to make it unnecessary, at least, to enter again into an elaborate discussion of it. To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them, nor contemplated by its framers is to repeat what has been already said more at large and is all that can be necessary.
Yet, it was Marshall who expounded on what originalists themselves have called "living Constitution" theory, in M'Culloch v. Maryland, where Marshall opined:
To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
And then, a few years later, in Gibbons v. Ogden (1824), Marshall ripped into those who would support any strict construction of the Constitution, saying it would cripple the government's ability to respond to changing situations and viewpoints. He said:
What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.
Marshall then went on to say we should still look to the words expressed and how they were intended to be construed, which of course begs the question once again. We really should go back to James Madison, in
Federalist Paper no. 37, where Madison admitted a lot of terms and phrases in the Constitution are vague, and will only be rendered understandable in posterity, and with experience in the situations which will arise. Jack Balkin, American University law professor,
holds to my view of originalism as a dodge when conservatives use the term, and is really more what Madison is talking about, which is far more subtle and recognizes perhaps a degree of humility in the art of statutory and Constitutional interpretation.
Cruz is just another bomb thrower, and his understanding of American history, let alone constitutional history, is only deep in its shallowness.
*I should add that, when I confronted Scalia about not knowing the framers' intent in any case he had ever heard as a jurist--this was at a law seminar, during a lawyers' conference in Orange County in 1995, sponsored by Orange County's Chabad (the conference was about Jewish law and Anglo-American jurisprudence), Scalia did not challenge me to say he was only defining "originalism" to be about "meaning," and "not (subjective) intent." The audience of at least 500 lawyers in the room knew what each of us were talking about, as I had multiple people come up to me saying I had slayed Scalia with one question in the question and answer period following his debate on originalism with the now late Judge Reinhardt, the liberal 9th Circuit jurist. Reinhardt was, of course, against Scalia's originalism, but did a poor job in defending his own position, which was frankly vague, and devoid of any true knowledge of constitutional and political history. As I have noted before, Reinhardt refused to speak with me after that performance, while Scalia was charming and kind with me, which proved what people said about the guy, which is Scalia loved a good debate.
