Senator and History Professor Team Up for Astoundingly Incompetent Attack on Originalism

 
By ED WHELAN

In an Atlantic essay yesterday, Senator Angus King Jr. and Boston College history professor Heather Cox Richardson combine to make their best case against originalism. The result is a mess to behold.

Let’s take a look at the parade of errors that King and Richardson make:

1. Here’s how the authors describe the originalism that is “[m]ost famously associated with the late Justice Antonin Scalia”:

In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn’t clear, then apply what was in the minds of the 55 men who wrote it in 1787.

This passage contains two gross errors and one more subtle one.

First, the public-meaning school of originalism—the one that Justice Scalia was “most famously associated with”—does not ask “what was in the minds” of the drafters of constitutional text. It instead aims to discern the public meaning of the text at the time it was adopted.

Second, the authors seem to claim that in interpreting unclear text of later-adopted amendments, originalists will look to what the Framers thought “in 1787.” I might charitably dismiss this absurdity as sloppy drafting, except that the authors themselves later assert: “If the Framers didn’t think it, it’s not allowed.”

Third, the notion that there is some “plain meaning of the text” that can be discerned without at least implicit resort to originalist principles is mistaken. The authors cite as one supposed example of plain meaning the requirement that the president must be at least 35 years old: as they put it, “‘35’ means, well, 35.” (Set aside that the Constitution actually says “thirty five,” not “35.”) How do we know that this is 35 in base 10 rather than 35 in base 6 or in base 12? Because we know that base 10 was the public number system at the time of the Framing.

2. Applying their cartoonish misunderstanding of originalism, the authors contend that originalism yields the conclusion that the Air Force is unconstitutional because it’s not mentioned in the text and the Framers likely didn’t “have in mind the Air Force 115 years before the Wright brothers.” They seem to think that this is their great gotcha.

The authors’ argument fails even on its own confused terms. They claim that the Constitution “doesn’t say ‘armed forces’; it explicitly says ‘Army’ and ‘Navy.’” But the Constitution in fact confers on Congress the power to “raise and support armies” (plural), and the authors provide no reason not to regard the Air Force as an aerial army.

More importantly, originalism is not hypertextualism or strict constructionism. As Justice Scalia put it (in A Matter of Interpretation), “I am not a strict constructionist, and no one ought to be…. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Scalia (like most, if not all, originalists) agreed with Chief Justice Marshall’s originalist argument in McCulloch v. Maryland (1819) that in setting forth Congress’s powers the Constitution by its nature “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

In other words, the authors’ own argument for the constitutionality of the Air Force is entirely compatible with originalism, even though their misunderstanding of originalism prevents them from recognizing that.

3. The authors’ contention that originalism “pretends to make the work of the Supreme Court look straightforward and mechanical” likewise rests on their own mistaken caricature. Originalist interpretation is a craft—something that can be performed well or poorly—and as Scalia openly acknowledged “in some cases historical inquiry into the original meaning may be difficult.” (The Essential Scalia, p. 21.)

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