Many conservative legal activists today purport to be constitutional originalists, meaning they say they follow the original meaning of the Constitution at the time of its adoption. Yet some of those same activists also embrace dodgy legal theories that, when examined in detail, prove to be entirely at odds with constitutional text and history. The Constitution, properly interpreted, does not always support conservative policy preferences.
Yet many progressive legal activists today are quite contemptuous of originalism, dismissing it as a “dangerous fallacy.” But if legal progressives keep on rejecting and denouncing originalism, how will they ever be in a position to properly challenge the bogus originalist arguments of conservatives? In other words, why not defeat your enemy on the actual field of battle, rather than just booing from the sidelines?
University of Virginia law professor Lawrence Solum, a leading scholar and advocate of originalism, thinks the addition of Ketanji Brown Jackson to the U.S. Supreme Court has the potential to kickstart a renaissance of progressive originalism. “Justice Jackson’s originalism,” Solum writes, “is a direct and forceful response to the conservative justices’ increasing reliance on a selective mix of history, tradition, and precedent to undermine the original meaning of the Constitution’s text, while claiming to be ‘originalists.'”
During her confirmation hearings earlier this year before the Senate Judiciary Committee, Jackson did sound like she was ready to fight the fair-weather conservative originalists on their own ground. “I believe that the Constitution is fixed in its meaning,” Jackson told Sen. Ben Sasse (RNeb.). “I believe that it is appropriate to look at the original intent, original public meaning of the words when one is trying to assess [a constitutional provision] because, again, that is a limitation on my authority to import my own policy views.” Sasse said that he was pleased to hear her “pay partial tribute to the judicial philosophy of originalism.”
It would certainly be nice these days to have a more forceful originalist voiceprogressive or otherwisein the Supreme Court’s criminal justice cases, where the current majority of Republican appointees often pay too little heed to constitutional text and history. A few years ago, the late Justice Antonin Scalia often provided that voice. In one Fourth Amendment case, for example, Scalia lambasted the majority opinion of Justice Clarence Thomas as “a freedom-destroying cocktail” that “is not my concept, and I am sure it would not be the Framers’, of a people secure from unreasonable searches and seizures.”
Jackson could do American law some real good by adding her originalist voice to the mix in such cases.
