Originalism v. Textualism: The Fight of the Century

After the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, leaders on both sides of the political aisle retreated to their corners and articulated how they believe the vacant seat should be handled, with the country less than 50 days from Election Day.

For the most part, the Republican Party, which controls the White House and the U.S. Senate, believes it is well within its constitutional purview to fill the vacant seat before the upcoming election. Putting politics aside, the GOP is correct in this assessment.

On the other hand, the Democratic Party, which only controls the House of Representatives, believes it is well-within its “moral” authority, regardless of the Constitution, to block their political rivals from replacing Ginsburg on the nation’s highest court.

Although many on the Left would like to frame the coming clash on decorum and procedural grounds, the crux of the monumental battle that is unfolding is simple: originalism v. textualism.

Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law at Northwestern University Pritzker School of Law, argues that “Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law… Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution.”

Calabresi notes, “Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954)… In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation -- from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day.”

Ginsburg, a liberal icon during her 27-year tenure on the Supreme Court, embodied the far Left’s preference that justices interpret the Constitution as a living, breathing document. Therefore, the Left is adamant that her replacement upholds this progressive posture, also known as textualism.

As far-Left rock star Rep. Alexandria-Ocasio Cortez (D-NY) said on the night Ginsburg passed away, “Let this moment really put everything into stark focus, because this election has always been about the fight of and for our lives. And if anything, tonight is making that more clear to more people than ever before.”

Because the Left views the role of the Supreme Court as activist, to advance their agenda (regardless of whether or not it meets constitutional muster), Ocasio-Cortez was apoplectic upon hearing of Ginsburg’s passing. During her 40-minute Instagram video, she implored her followers to, “Let this moment radicalize you.”

After her Instagram rant, she tweeted this ominous threat, “We have a whole new world to build. We cannot accept going back to the way things were, & that includes the Dem party. We must deliver transformative, material change.”

Unsurprisingly, Ocasio-Cortez is far from the only Democrat who is willing to use any means necessary to ensure that the GOP is unsuccessful in their attempt to fill the vacant seat with a judge who adheres to originalism. Sen. Chuck Schumer (D-NY) and Rep. Nancy Pelosi (D-CA) have said they will fight tooth and nail as well.

Unlike their political opponents, those on the Right believe justices should interpret the law under the doctrine known as originalism. To date, President Trump has embraced this interpretation.

“It is up to us to reclaim our heritage of equal and impartial justice. It is up to us to re-dedicate ourselves to the traditions and wisdom of our Founders,” said President Trump in 2019.

According to a White House Fact Sheet, “President Trump is committed to appointing judges who set aside their personal views and political prejudices to do what the Constitution and the law demand. This work is especially important due the left-wing’s push to throw away legal precedent and to abandon the Constitution in order to impose its own radical agenda.”

From a historical perspective, the nomination battle that is about to ensue is likely to be unprecedented. It is to be expected that the upcoming hearings for Trump’s third nominee will make the bitter battle over his second nominee, Brett Kavanaugh, look positively polite.

Obviously, this partisan animosity over the nomination process is unsustainable and does not bode well for the future of our republic. And by future, I mean post-Election Day 2020.

Chris Talgo (ctalgo@heartland.orgis an editor at The Heartland Institute.

Image: Pixabay