Definitions are important.

For example, I’m perfectly willing to say I believe in God–if God is defined as “the moral impulse.” I really do believe that most people (not Donald Trump, but most people) have an innate sense of fair play (of justice, if you will), and if we dub the moral guidance provided by that sense of justice as “God”– well then, I’m a believer. (If God is a white guy on a throne with a long white beard who watches to see whether I’m naughty or nice, ala Santa, not so much…)

In constitutional argumentation, originalism is a lot like God.

I mentioned in a prior post that I’ve been reading Erwin Chemerinsky’s We the People: a Progressive Reading of the Constitution for the Twenty-First Century. it’s a really great book, and I recommend it highly; it’s accessible, readable, and (seeing as how it’s from Erwin Chemerinsky) erudite.

Chemerinsky doesn’t have much use for originalism as defined by Scalia et al. I particularly enjoyed his reference to an oral argument in a case involving a California law prohibiting sale or rental of violent video games to minors. Scalia was pressing California’s attorney about whether the the law could be reconciled with the “original understanding” of the First Amendment. After a confusing back-and-forth, Justice Alito interrupted, saying “I think what Justice Scalia wants to know is what James Madison thought about video games.”

The reason I loved this anecdote is that it is so close to the way I introduce “original intent” in my classes of non-law-school undergraduate students. I ask them what James Madison thought about porn on the Internet. (These days, I’m just happy when the respondent knows who James Madison was…but that’s a subject for a different post.)

Obviously, Madison never contemplated either technology–that of video games or the Internet. But I would argue that’s not the end of the analysis, nor is it reason to declare the irrelevance of originalism properly defined.

James Madison may not have contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires the courts to protect the principle that government ought not be able to decide which ideas may be communicated.

If, as Chemerinsky demonstrates, it is impossible to define original intent as the Scalia faction would do— as reliance on and limited to what was in the minds of the Founders at the time they drafted the Constitution– and if it is equally if not more unsatisfactory to say that the Constitution simply means what nine people in black robes say it means at any particular point in the nation’s history, then the only reasonable definition of originalism is protection of the principles and values that the Founders were intent upon protecting.

The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.

The principles and values that the Founders protected in the Constitution and the Bill of Rights are pretty clear, even if their application in many situations is less so. The only approach to Originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.

Does slapping a GPS device on a suspect’s car require a warrant? Is use of a new technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?

What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about these and hundreds of similar questions?

We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.

It’s the only workable Originalism.


  1. Sadly, the Second Amendment was more a political sop to southern states as it was finally worded. Since the new nation at that time (late 18th century) couldn’t/didn’t afford a standing army, a militia was originated. Since the South continued to struggle with keeping their economic engine, slavery, in order, they lobbied to have guns guaranteed so they could hunt down runaways and hold off slave rebellions.

    The NRA has perverted that amendment since outright slavery is no longer legal. Yet, these people cling to a “originalist” view of guns as a personal right no matter the technology. This amendment, most of all, says that some tweaking of our grand document is necessary from time to time.

    What would our Constitution look like today if we tried to write a new one from scratch?

  2. My view of “God” is close to Sheila’s; I believe there is a higher power, not sure what form it/he/she takes but the name “God” is as good as any because it is familiar. And I don’t believe this world came about by coincidence.

    Vernon; thanks for your comments regarding the use of the 2nd Amendment’s meaning by our southern states; the Confederate Army was financially supported by private residents such as plantation owners who could provide arms and money to form local militias. They came together as one collective militia under the organization of the Confederate States of America. Their fight was for sovereignty; the Civil War was personal to them, maintaining the Union was a national issue to northern states. Both based in saving their separate economic survival. Nothing “original” about either; it was then as it is now, FOLLOW THE MONEY.

    “What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about these and hundreds of similar questions?”

    Once I began delving into the Constitution (thanks to those free little booklets from the ACLU); I was surprised at how open to interpretation it was written, yet based in logic, common sense, humanitarianism and rationality which can be applied today by rational, thinking people. If you are watching this current administration; it is obvious they have had to totally ignore the Constitution and the original Republican party to support the current Trump Party to maintain their grasp on this country. I find that very original; the fact that it is working so well can again be traced to FOLLOW THE MONEY…upheld by Citizens United. This takes us back to capitalism vs. corporationism which we covered on this blog a few days ago.

    Vernon asked; “What would our Constitution look like today if we tried to write a new one from scratch?” I don’t believe it can be written from “scratch”; we would need to use the “original” as a starting point and guideline.

    Researching information to respond to a Facebook post this morning, I did find a major element not covered in the Constitution and evidently not covered by any law, ordinance, rule or regulation regarding presidential personal use (ABUSE) of our tax dollars. According to Snopes Fact Check; “After 9 MONTHS in office, Trump and family had already spent $147 MILLION on personal travel; one and one-half times as much as President Obama and his family spent in 8 YEARS.” I could find no newer accounting for their spending to date; his attorney fees alone must be in the millions with no end in sight…especially after Mueller’s release of information yesterday.

  3. I threw in the intellectual towel on this “issue” long ago and have taken the easy way out in re “originalism.” I agree with the utilitarian view of original intent that it is what the Supreme Court says it is, and why? Because that is in fact the way the court has been playing that game since Marbury, i.e. That’s the reality, and yes, Madison had no views of porn on the internet, but then we don’t discuss how to handle slaves these days as he and Jefferson and Washington must have discussed among themselves, all being slave holders. It’s beyond our exposure in time and space.
    The original intent aficionados have a problem in that original intent and slavery were compatible from 1789 to 1865, long after Marbury, suggesting that if we are to be comfortable with modern views of the “peculiar institution” by such standard we are now considered to be racists. Thus the content and timing of original intent as measured by current mores and folkways sometimes dictates the choice of how we apply the legal measurement to the issues in cases since all such measures are themselves fluid and evolving with time.
    So I gave up. Academic arguments on all sides of original intent are interesting, but I have decided to surrender to the reality that original intent is what the Supreme Court says it is (though dissents in such cases where that is in issue would make for more interesting reading than the majority holding).

  4. Vernon writes, “What would our Constitution look like today if we tried to write a new one from scratch?”

    Even a better question is, “What source would we use to write a new constitution?”

    This is where our so-called “democratic processes” would be exposed. Look at how Michigan, Wisconsin and Pennsylvania GOP are handling their defeats. Writing new laws limiting the powers of the Democratic victors.

    As I’ve mentioned before, Oligarchs wrote the first constitution in this country. Over the years, it’s become more liberalized or modernized. Scalia was nothing but a Koch shill. The Koch’s and Scalia want to roll back the constitution to where it stood before FDR.

    Since we’ve concluded that our existing political structure is corrupted at the highest levels, there is NO WAY I’d let any of these shills concoct a new constitution in the dark chambers of the people’s house.

    As others have mentioned, the “We the people…” verbiage was nothing more than propaganda because it wasn’t written by the people nor did it include all the people.

    The original intent was Oligarchs elected other Oligarchs to represent them in their respective government. It was the boys club.

    A new constitution would have to be drafted on an open source platform like Wiki. Then, and only then, could it become by the people…

    Can you imagine the opposition to such an endeavor? Our elected reps won’t even limit the spending on campaigns and have given corporations free speech.

    And, if you read the Wikileaks trove of docs taken off DNC computers, you’ll conclude that even the political party who claims to represent the people is a farce.

    The people have all the power in this country if they can only wake up to repel oppression and discard the invisible confines which bind ourselves in shackles. When great leaders in the ’60s woke up to this fact, they were assassinated.

    Pay attention to the yellow vests in France. 😉

  5. it is not our political structure that is corrupted; it is the people within the structure who are corrupted…they are primarily the same people who own the corporations who consider the corporation to be people.

  6. “The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.”

    For years I’ve considered Scalia a lying moron for trying to convince the world that he could read the minds of the founders on the smallest of issues. Who believes that level of crap besides those whose objectives it serves? Thanks to Sheila for putting “originalism” into the only context that makes any sense.

  7. What’s interesting to me is that the Republicans advertise that they are the party most intent on guaranteeing our freedom that comes from the Constititution yet there is a direct lineage through their organization from Lee Attwater to Karl Rove to Dick Cheney to Newt Gingrich to Mitch McConnell to Trump/Pence through the Koch Bros who all clearly believed that they were entitled to power so any means to get there were justified. Of course that family tree branched off in many directions as it grew.

    It seems to me that most of the people who I meet in person or on line who are rabid Republicans carry that dichotomy very comfortably and suffer no cognitive dissonance from believing in both freedom for me personally and obtaining it through entitled political power.

    I personally don’t understand how that can be but the closest that I can come is just a basic alligiance to authoritarianism.

  8. originalism, may have defined some who dont believe,from upbringing to adulthood,one may just see the world,as they really see it. some just listen,others talk with others, and define themselves as non believers,or believers, as some see no justification to believe. we can see the words of the consitution,read them in theology, like a bible study,and discuss the meanings many times,with many others.
    my request in life,dont judge by ones beliefs,and dont judge if you dont stand in ones shoes. if the teachings of god are to make one believe in virtures,and morals, then have at it. but by all means,look at one who lives life,and has learned from looking at others,how not to be..
    i would prefer a world that religion keeps to its mantal,and its followers dont push thier aganda on others who,see the world diffrently.. stay out of goverment…..and others lives who can do well,without religion..theres nothing worse than a hypocrate in politics.

  9. OK, Sheila,
    I just purchased the book you recommended. How can I audit your class for non-law students on-line?

  10. Kathy M. at 6:35.

    I’m flattered that you would want to audit the class, but there is currently no way to do so, either on-line or off.

  11. Too bad — I learn so much from your posts — I’m sure the interactions in the classes are great. I am retired and would like to learn more about legal workings of our country.
    Thanks anyway — and have a Happy Holiday!

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