Originalists vs. non-originalists: The battle lines over the Constitution are drawn

President Donald Trump watches as Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch, accompanied by his wife Marie Louise, during a public swearing-in ceremony in the Rose Garden of the White House in Washington Monday, April 10, 2017.
President Donald Trump watches as Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch, accompanied by his wife Marie Louise, during a public swearing-in ceremony in the Rose Garden of the White House in Washington Monday, April 10, 2017. AP

It had only been a few minutes after Neil Gorsuch had been sworn in to fill the ninth U.S. Supreme Court seat that conservatives were celebrating an endorsement of their view that there is one — and only one — legitimate way to interpret the U.S. Constitution and its amendments.

This way is called “originalism,” a word first used by the late Justice Antonin Scalia to refer to any interpretive theory that says the court must look only to the past and determine what was intended by the framers of the Constitution and/or how the Constitution and its provisions were understood by the people at the time of enactment.

Judge Gorsuch calls himself an originalist. Conservatives applaud this and argue that any non-originalist theory of constitutional interpretation should be condemned as “liberal activism” and “judicial overreach.”

Conservatives continue to believe that if the court majority strictly adheres to the original meaning intended by the framers of the Constitution, then Roe v. Wade will eventually be overturned and strict anti-abortion laws can once again be enacted by the states.

Same-sex marriage laws can also be overturned, as well as state laws allowing people to purchase and use contraceptives. The famous decision in Brown v. Board of Education declaring that “separate is not equal,” (thereby making school segregation unconstitutional) would also be put at risk if relitigated by an originalist court.

The first thing I want to point out is that the Constitution itself says nothing about how it should be interpreted. There is no article or amendment that says, “The provisions of the Constitution shall be interpreted only in a way consistent with the original intentions of the framers.”

Of course, some will say that we have a moral obligation to defer to the intentions of the framers, but that is not self-evident. It could just as well be argued there is a moral obligation to use some other standard for an interpretation. For example, “the moral principles relied upon by the framers when writing the Constitution,” or “the understanding of the Constitution by 21st century U.S. citizens.” The court must rely on such non-originalist standards because it may be impossible in some cases for them to find out what the framers intended. For example, it has never been clear whether the framers intended to include or exclude obscene speech when they wrote the First Amendment (“Congress shall make no law … abridging the freedom of speech”).

Other cases prompted non-originalist standards because the framers could not have predicted future technologies. For example, the Fourth Amendment says the people have a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This was originally taken to refer to physical intrusions of one’s house by government authorities. But what should we say about non-physical intrusions such as wiretapping a telephone call or hacking a person’s email account? The 18th-century framers did not intend the amendment to apply to such cases because they did not foresee the invention of the telephone, computers or the internet.

The solution in cases like these is not to look at the text of the Constitution, or to the intentions of the original framers of the Constitution, or even to how the Constitution was understood by citizens at the time it was enacted in the 18th century. Instead, we must become non-originalists and look for a moral principle that underlies and explains the Fourth Amendment rule against unreasonable searches and seizures.

We need not look far. Americans have always cherished a moral right to privacy in their own homes. This right demands the exclusion of both physical as well as non-physical “informational” intrusions of a person’s private space. We believe we have a right not only to prevent government authorities from crashing into our home without a warrant, but also to prevent them from listening to our phone conversations and searching through our emails.

Hence, the Supreme Court eventually ignored the intentions of the framers and the understandings of 18th-century citizens and declared wiretapping to be unconstitutional. They looked “behind” the words of the Fourth Amendment and discovered the moral right of privacy. This allowed them to come to a conclusion about the unconstitutionality of wiretapping and hacking, even though there is no explicit mention of the word “privacy” in the Constitution.

This departure from originalism may not satisfy conservatives, but it is a time-honored solution that has been used by conservative and liberal judges alike because they both know that the Constitution cannot respond to every type of future case. Hence, our Constitution invites both originalist and non-originalist standards of interpretation, and it is to the credit of the framers that they did not dictate to future generations how this great document should be interpreted.

Laurence Houlgate is a retired Cal Poly professor of philosophy, specializing in philosophy of law. He is the author of “Philosophy, Law and the Family: A New Introduction to the Philosophy of Law” (Springer, 2017).