Originalism is an Anti-Politics Machine
Why are there so many court cases hinging on old dictionary definitions?
[Note: in this post I’m using phrases like “textualism” and “originalism” interchangeably. I know there are in fact differences and nuances between them, but since the point of this post applies to all of the camps I am not going to properly distinguish them.]
One of my all-time favorite books is James Ferguson’s “The Anti-Politics Machine”, which explores how a very reasonable-sounding attempt to fight poverty in rural Lesotho fell apart because the practitioners (largely the World Bank) severely misinterpreted what was actually happening on the ground.
It’s difficult to answer the question “how do we improve people’s lives?” because the world is a really complicated place and ethics can be really, really hard. So instead the World Bank answered a slightly different question: “how do we make sure the Lesothan government has the capacity to provide the sorts of goods and services we associate with economic development?”
This is an easier question, because it’s purely technical! We can send economists and consultants and administrative experts to teach the best ways to build infrastructure, to organize systems, and to work through logistics. We can measure how many roads have been built, how many district centers have been built, how successfully the government is able to count and tax its people. And if we’re not careful, we’ll start to use these as our measures for whether or not we’re improving people’s lives.
This is exactly what the World Bank did. And it didn’t go very well, because “expanding government capacity” is not always the same as “improving people’s lives”, particularly when your target area (the rural district of Thaba-Tseka) is a hotbed of opposition to a genuinely oppressive central government. The ruling party, perhaps not surprisingly, used their newfound capacity to consolidate their power and exact (sometimes violent) vengeance on the opposition.
What happened? We might summarize the World Bank’s approach like this:
Start with a very difficult and nuanced problem (improve the lives of people in Thaba-Tseka).
Replace this with an easier technical challenge (expand government capacity)
Interpret your solutions to the technical challenge as “objective” or “measurable” solutions to the problem you started with (we must be helping people, because we’ve achieved all these capacity benchmarks!)
The third step is really, deeply insidious.
Partly because it’s so easy to do — if you’re used to thinking in terms of logical sentences and numbers, you’ll naturally be drawn to approaches that let you use your analytical toolbox. More than this, the technical problem will come with a more-or-less objective answer, which really feels like a better approach than the “subjective” answers complex questions tend to come with.
(Compare “I think freedom is an important part of improving people’s lives” — to which you might ask “whose freedom? what kind of freedom? how will you provide it?” with “we increased access to fertilizer by 17% this quarter.”)
(Similarly, compare “the right to own a firearm needs to be balanced with the right to safety in a way that ends up being complex and nuanced” to “gun laws are constitutional if and only if you can find an exact historical precedent for them.”)
But partly because its effects can be so devastating. In Ferguson’s Lesothan context, people died. When Clarence Thomas overturns New York gun control laws, a lot of people are going to die.
This is what Ferguson refers to as an “anti-politics machine”: a process, such as the above sequence of steps, by which a hard political question balancing competing interest is replaced by a poorly-suited technical question, whose answer is used as the “objective” answer to the original problem. (Often telling people suffering from the decision that “this is just what the math/economics/constitution says” to disguise the sleight-of-hand.)
It’s easiest to see how originalism functions as an anti-politics machine by examining a particular opinion. I haven’t read any of the recent Supreme Court rulings in enough detail for this, so let’s look at an older one: Judge Kathryn Kimball Mizelle’s decision overturning Biden’s mask mandate on public transportation and airplanes.
The lawsuit poses a challenging question: does the law allow the executive branch of the federal government to require masks on public transportation, to help fight one of the most deadly pandemics in US history?
Specifically, the lawsuit circulates around a law allowing the surgeon general to:
“provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary."
You will notice that (and the ruling admits this) this law is ambiguous, because it’s not clear what sorts of things “sanitation” ought to include. The question of what sort of power this might grant, and of how we should balance Congress’s clear intent to give the executive branch the power to fight pandemics with individual rights, are hard questions.
There is no such thing as an objective answer to these question. They require weighing competing interests, understanding possible outcomes, comparing various forms of rights, and a good deal of wisdom.
As humans, we dislike this. We don’t want to give our judges that sort of autonomy — or, if we are judges, we would prefer to view ourselves as objective arbiters, calling “balls and strikes” rather than making our own choices.
So we filter it through the anti-politics machine. Instead of confronting the nuance, we replace the hard question with a technical one: does the historical meaning of the word “sanitation” include the sort of things mask mandates do?
Unfortunately, this is still pretty subjective. Judges do not have the training to produce rigorous analyses of history1, but even more fundamentally the idea of “a” historical meaning of a phrase is the sort of thing that sounds nice but does not accurately describe how real humans use language.2
So to get to a true “Gorsuch-style” originalist approach, we need to filter it a second time: if you count up the number of times people use words like “sanitation” in the past, what fraction of them could be interpreted as the sort of thing mask mandates do?
(In this case, “the sort of thing mask mandates do” is based on Mizelle’s scientific misunderstanding that masks do not clean the air, when in fact cleaning the air is the singular thing that masks do. But this is beside the point of this post!)
Mizelle answers this by searching a historical corpus of American English from the time period, and discovers that “sanitation” refers to “a measure to maintain the cleanliness of a place” only 5% of the time. This seems like a pretty low number, and so having solved the technical problem Mizelle concludes that the law must not allow mask mandates.
The rest of the opinion goes along essentially the same lines: a difficult question is raised, a completely different (but more “objective”) question is answered, and Mizelle hopes you won’t notice the difference.
There’s one last point of Ferguson’s that seems relevant, and that’s the role of power. The World Bank’s “technical” poverty fixes gained traction because they aligned with the goals of a powerful group (the Lesothan government.) As a result, there was a group incentivized to play up the anti-politics machine, to conflate a technical problem whose solution would benefit them with the actual problem at hand. And they succeeded quite well.
The same is true of originalism, which historically rose to power largely in opposition to Brown v. Board of Education, the landmark Supreme Court case banning segregation in schools. This ruling solved the actual question at hand (“What does a just society look like?”) in a way that contradicted the narrow, textual “would the original readers of the constitution have envisioned this ruling?”.
As a result, there were suddenly a lot of powerful people whose interests aligned with originalist constitutional interpretation, and they invested heavily in the anti-politics machine of originalism. “It’s not that we like racial segregation,” they could publicly claim, “it’s that desegregation isn’t compatible with originalism.” This both provided cover for their opinion, and a way of recruiting people who in fact did not like segregation but could be sucked into the “objectivity” trap.
Segregation eventually became too politically unpopular, but this pattern continued to intensify with Roe v. Wade, Lawrence v. Texas, Obergefell v. Hodges, and other landmark non-originalist cases, until now we have a majority of the Supreme Court who seem to believe that fundamental human rights cases should be decided on the basis of shoddy undergrad-level history analysis, and only on the basis of shoddy undergrad-level history analysis.
A bizarre state of affairs indeed.
Read any originalist opinion if you don’t believe me! The vast majority would be laughed out of any history seminar, because the vast majority of judges have never taken a research-level history class and therefore have no idea how the methodology of thefield actually works
Texts have lots of meanings, and texts that are ambiguous now were almost certainly ambiguous historically as well! Trying to rescue this with ideas like “original public meaning” doesn’t work very well, for exactly the same reason.