Textualism, Originalism – What Difference at This Point Does it Make?

The Democrats’ hostility to the Constitution and originalism were on full display in the Gorsuch hearings this past week. Constitutional law professor Randy Barnett of Georgetown, who got the ball rolling for us in the Obamacare individual mandate case, took on a Gorsuch critic in a law professor’s blog.  The other professor ripped Gorsuch and originalism up one side and down the other.  Barnett, in turn, ripped the other professor for being ignorant of the past 25 years of originalist theory, methodology, and practice.

I had not looked closely at originalism before, so I was surprised to learn that there are many flavors of originalism, and most originalists no longer try to understand what the Framers meant when the Framers wrote the Constitution.  According to Barnett, looking at the Framers’ intent went out the window for most originalists in the 1980s.  Now, most originalists just look at the meaning of the words the Framers used in writing the Constitution. 

The other professor criticized originalism because, in his view, there are three Constitutions – one the Framers wrote, one the states ratified, and one the public understood at the time.  Barnett knocks this down by saying no one has ever shown how the words on paper meant something different to the Framers, the states, and the general public.  For example, no one can show that the word “arms” in the Second Amendment meant something different to the Framers than it did to the states or to the public. Most originalists today, Barnett says, look to the original public meaning when interpreting words in the Constitution.

There is a further split between originalists who believe that erroneous past court decisions trump the original public meaning of the words in the Constitution, those who don’t, and a third camp that would return to original public meaning gradually over time through new cases. 

Barnett’s view of originalism is downright boring.  The meaning of a word as used then versus now might make a difference here and there, as in the word ‘commerce’.  In the 18th century, commerce meant the trading and transportation of goods that are produced.  The meaning did not include the activities of agriculture or manufacturing, for example.  Today, ‘commerce’ means all economic activity – agriculture, manufacturing, trading, and transportation are all included. 

By confining originalism to the meaning of specific words, Barnett cuts out from originalist analysis all the fun stuff – for example, all the big philosophical and Constitutional questions, like unenumerated rights which I’ve mentioned on these webinars before. 

Also, I thought that the parsing of individual words was called textualism, something for which Antonin Scalia was famous.  Textualists don’t ask what the drafters of a law or constitutional provision intended.  They ask what the words on the paper mean.

To my way of thinking, it would be strange to have a written Constitution and not even ask what the Framers meant by it, or not be informed by their overall design. So, for a couple of reasons, I’m not fully on board with Barnett’s analysis of originalism. 

But he’s the expert and his article is worth reading because it brings you up to date on originalism and he knocks down a lot of what the Democrats said about Gorsuch along the way.