This column first appeared in the Daily Caller.
Justice Antonin Scalia once quipped, “I’m an originalist and a textualist; 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, Scalia was not a consistent originalist. Early results show that Kavanaugh isn’t one either. Indeed, there has been no consistent originalist on the court for many decades now, other than Justice Clarence Thomas.
This is odd, because originalism is the prevailing method of interpreting almost all legal documents. An originalist is simply a person who believes we should use the same principles to interpret the Constitution—as the Founders expected us to do. But representatives of the dominant legal culture insist on exempting the Constitution from rules applied elsewhere.
I would like to see an originalist majority on the Supreme Court. I also believe that if we had one, the consequences would be far more moderate than liberals fear or libertarians hope.
For example, some libertarians argue that the Constitution, as originally understood, bans paper money. They claim the Constitution requires that all money be metallic. Academic liberals sometimes cite this view to illustrate how “nutty” originalism is. But a survey of the founding-era evidence shows that the Constitution was intended to grant the federal government power to issue paper money.
Similarly, some claim originalist justices would reverse Brown v. Board of Education (1954), which struck down school segregation. However, several scholars have demonstrated that that decision was fully consistent with the original meaning of the 14th Amendment Equal Protection Clause. I think any holes in their arguments are filled by the fact that, whatever the prevailing views about segregation when the 14th amendment was ratified, later experience proved it inconsistent with equal protection of the law.
An originalist Supreme Court would likely strike down some federal economic regulations, but many would survive, if in slightly altered form. This is because the Constitution grants Congress power to regulate “Commerce among the several States”—and as originally understood that power includes authority to ban from interstate commerce goods not complying with federal standards.
Regulations that would not survive would be federal intrusions into purely local activities. Moreover, supervision of health insurance would return to the states that supervised it for the 220 years before Obamacare. The courts would void federal statutes addressing crimes of the kind already illegal under state law.
Decisions over contentious social issues such as abortion and marriage would be returned to the states. (This reform probably would do more than any other to calm our national divisions.)
Probably the biggest changes would be in federal spending. Many federal programs are inconsistent an honest interpretation of the Constitution. We would see a marked reduction in federal pork-barrel spending, and dissolution of the college debt bubble.
The states would assume the most popular and useful programs. The rest would, mercifully, go away. Congress could cut taxes and even balance its budget for a change! True, state taxes would rise. But experience suggests they would rise a good deal less than federal levies would drop.
What of popular entitlement programs such as Social Security and Medicare? You probably would see no difference at all. If the court voided them, Congress would propose a constitutional amendment to save those programs, and the states would approve it in a flash.
But even without such an amendment, recipients would see little change. This is because the Supreme Court can, and would, protect those relying on such programs by using a legal remedy known as the “structural injunction.” This was the same remedy used to phase out segregated schools.
If environmental programs were struck down, a constitutional amendment could protect the best of them. But all states have similar programs, and they would continue even without an amendment. As for pollution problems crossing state lines, the Constitution permits the states to compact with each other to address problems of that kind. The states already have entered hundreds of such compacts.
After a few originalist court decisions people would wonder what the fuss was all about. Most Americans also would wonder why we didn’t downsize the federal government long ago.
This brings us to the real reason some people fear originalism. It’s fundamentally because they recognize that if the Supreme Court does erase the programs they favor, few people will want them back.