The originalist theory of legal interpretation holds that judges, in reviewing the implementation of a statute, should be guided by the “plain meaning” of its language at the time it was adopted. This is in opposition to the notion of a “living law”, whose interpretation should evolve as the conditions it addresses evolves. For instance, originalists are appalled by Supreme Court decisions like Roe v Wade, since nowhere does the Constitution establish a right to bodily privacy, nor could the framers have plausibly thought back in the eighteenth century that the language they drafted encompassed such a right. It is one interpretation of the living law view, on the other hand, that, as governments increasing acquired the administrative power to regulate our intimate lives, the zone of restriction implicit in the first amendment should be extended to measures that impinge on the freedom to control one’s own body.
Until his death the most vocal supporter of originalism on the Court was Antonin Scalia; now we are looking at the nomination of Amy Coney Barrett, who describes herself as an acolyte of Scalia and a resolute defender of his philosophy.
Here is a case I would bring up if I were questioning Barrett.
The rules governing elections are established at the local and state levels, not federal, but the Supreme Court is the final arbiter of how they might be interpreted. It is common for jurisdictions to have regulations prohibiting interference with or attempts to influence voters at voting sites. In every instance I’ve seen this is expressed in terms of physical distance, something like “within 100 yards of the polling place”. In enforcement this has always implied a radius extending from the door voters use to enter the building in which they will cast their vote. You can’t hold signs and shout at voters, much less accost them, within so many feet of that door.
But voting has changed during the pandemic. Social distancing has forced election officials to disperse voting booths, reducing the number of booths per site. Lines also have to be distanced, and they now stretch out for many blocks, even the better part of a mile, from the door. Because of this, voters waiting to cast their ballot are often beyond the specific distance specified in the law for prohibition of campaigning.
Should these prohibitions be interpreted according to their plain language, which unambiguously permits campaigning beyond a specified radial distance, or should they be understood more flexibly in terms of the changed circumstances of voting in a pandemic?
There is an easy way out, but on a little reflection, it is obvious it doesn’t work. That is, an originalist could say, “It’s clear that the purpose of the statute is to protect voters during the process of voting, which includes waiting to vote. With the pandemic, that purpose can and should be served by overriding the numerical stipulation and extending the prohibition to the entire voting line, no matter how long.”
Sounds good, but consider that (a) the authors of these laws could have used a qualitative description of the prohibited zone (“in close proximity to voting booths and lines”) but used a quantitative one instead, and (b) this is not the first pandemic; those in a position to write or amend these laws were familiar with the Spanish Influenza of 1918-19, where similar adaptations needed to be made. Really, only one of two possibilities exist: either the laws should be taken at their word and judges, while they may lament how poorly they were written, can only enforce them literally, or it should be assumed that those drafting them expected that future generations would understand their purpose and apply them flexibly. In the second possibility, the numerical demarcations were intended to convey a broader intent: you might say “within 100 yards” not to get out the tape measure but to express the idea that the immediate vicinity of the voting site should be differentiated from the community surrounding it. That’s not a strange way of communicating intent. Lots of rules parents set for children work that way. “Be home by 11 pm” means you need to have a good reason to stay out later. We could interpret voting regulations that way, but that puts us in living law-land.
So I’d ask Barrett about the enforcement of voting interference statutes during the pandemic and ask a follow-up question when she tries, as she likely would, to give the easy-but-inadequate response about intent.
Funny how Originalism turns out to mean just what its proponents think it should.
A textualist is going to simply say that when the language is unambiguous, then original intent or a modern take on intent is not even needed. Is it clear what 100 yards means? Keep in mind that these laws provide criminal penalties for violators and all judges are going to be exceptionally reluctant to attempt to expand a criminal law beyond what the letter says it is. It is effectively unenforceable and if a judge recognizes that then they should not proceed with such a decision. If they don’t recognize it, then they probably should not be judges. While they should be reluctant to extend things like voting deadlines, at least that is generally not a criminal matter.
Eric;
Laws are not rules and are interpretive and are interpreted all the time. Rules are ironclad and laws are not so. SCOTUS “supposedly” comes into play when a law interpretation may be so far beyond the law intent either way in interpretation that it is ratchetted to the next higher level of state and federal courts.
Judge Irving R. Kaufman, 2nd District COA What Did the Founding Fathers Intend?”
I am more likely to turn to Erwin Chemerinsky on such topics. This is a good article.
The Original Bill of Rights Had 12 Amendments
… The “Bill of Rights” is the popular name for a joint resolution passed by the first U.S. Congress on September 25, 1789. The resolution proposed the first set of amendments to the Constitution.
Then as now, the process of amending the Constitution required the resolution to be “ratified” or approved by at least three-fourths of the states. Unlike the 10 amendments we know and cherish today as the Bill of Rights, the resolution sent to the states for ratification in 1789 proposed 12 amendments.
When the votes of the 11 states were finally counted on December 15, 1791, only the last 10 of the 12 amendments had been ratified. Thus, the original third amendment, establishing freedom of speech, press, assembly, petition, and the right to a fair and speedy trial became today’s First Amendment.
Rather than establishing rights and freedoms, the first amendment as voted on by the states in the original Bill of Rights proposed a ratio by which to determine the number of people to be represented by each member of the House of Representatives.
The original first amendment (not ratified) read:
“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”
Had the amendment been ratified, the number of members of the House of Representatives could by now be over 6,000, compared to the present 435. As apportioned by the latest Census, each member of the House currently represents about 650,000 people.
The original second amendment as voted on, but rejected by the states in 1789, addressed congressional pay, rather than the right of the people to possess firearms. The original second amendment (not ratified) read:
“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
Though not ratified at the time, the original second amendment finally made its way into the Constitution in 1992, ratified as the 27th Amendment, a full 203 years after it was first proposed.
The Third Became the First
As a result of the failure of the states to ratify the original first and second amendments in 1791, the original third amendment became a part of the Constitution as the First Amendment we cherish today.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Background
Delegates to the Constitutional Convention in 1787 considered but defeated a proposal to include a bill of rights in the initial version of the Constitution. This resulted in a heated debate during the ratification process.
The Federalists, who supported the Constitution as written, felt a bill of rights was not needed because the Constitution intentionally limited the powers of the federal government to interfere with the rights of the states, most of which had already adopted bills of rights.
The Anti-Federalists, who opposed the Constitution, argued in favor of the Bill of Rights, believing that the central government could not exist or function without a clearly established list of rights guaranteed to the people.
Some of the states hesitated to ratify the Constitution without a bill of rights. During the ratification process, the people and the state legislatures called for the first Congress serving under the new Constitution in 1789 to consider and put forward a bill of rights.
According to the National Archives, the then 11 states began the process of ratifying the Bill of Rights by holding a referendum, asking its voters to approve or reject each of the 12 proposed amendments. Ratification of any amendment by at least three-quarters of the states meant acceptance of that amendment.
Six weeks after receiving the Bill of Rights resolution, North Carolina ratified the Constitution. (North Carolina had resisted ratifying the Constitution because it did not guarantee individual rights.)
During this process, Vermont became the first state to join the Union after the Constitution was ratified, and Rhode Island (the lone holdout) also joined. Each state tallied its votes and forwarded the results to Congress. …