Once upon a time there was a famous German law professor who did not like lawmakers, particularly when they were democratically elected. He thought that legislators were incompetent amateurs, and that lawmaking should be left to educated experts like him. No surprise that his employer, the King of Prussia, wholeheartedly agreed with the professor who, as a member of both the academy and aristocracy, had a special place in the royal heart. It was good to be the king in 19th century Prussia, and a rigid code of law would have taken all the fun out of it. So, the king’s favorite professor, Friedrich Carl von Savigny, came up with a brilliant idea and a snappy name for it too: historism. Why create from scratch big books full of laws that would at best be superficial, egalitarian and disturbingly progressive snapshots of the zeitgeist? Historism or the “Historical School of Law” held that judges and jurists should take a deep dive into the volksgeist, the “common consciousness of the people,” and form their legal opinion based on the tradition, heritage and regional customs of the Germanic lands and tribes.
[image_caption]Historism — Prussia’s version of originalism — was the brainchild of Friedrich Carl von Savigny.[/image_caption]
[image_caption]Henning Schroeder[/image_caption]
Henning Schroeder is a professor at the University of Minnesota and currently teaches in the Department of German, Nordic, Slavic & Dutch. His email address is schro601@umn.edu and his Twitter handle is @HenningSchroed1.
I think originalism is a recent development. When I read the constitution, I don’t get a sense that it was written by people who were interested in setting policy for their successors. It’s flexibility on policy matters is one of it’s reasons for it’s longevity. Acknowledge and accept as it does, the institution of human slavery, it also provided a legal basis for the desegregation of our public schools. That is not an example of originalism at work.
I wasn’t aware of this term before, very interesting. It surely sounds like a method for reactionary, un-elected judges to assert that a nation’s (vague and amorphous) cultural traditions should be considered its “law” as well.
American “originalism” claims that judges are to attempt to determine the scope of what was in the minds of the those lawmakers who drafted a text at the time of enactment. That means no matter how broadly the lawmakers may have drafted a text, the judge is to decide whether the particular factual circumstance they are presented with was contemplated by (presumably all) of the drafters. Obviously this cannot really be accomplished, but this does not deter the “originalists”. So even though the words of the text may appear to cover the situation, if the judge thinks that the drafters could not have intended a particular result, then the words cannot apply.
So this means (for example) that the Equal Protection clause could not validly be applied to strike down segregated schools, as Brown v Board of Education (1954) held, because (some) Congressmen advocating passage of the 14th Amendment (in 1868) stated that it would not apply to public schools. Of course, since there can be no sensible meaning of the phrase “equal protection of the laws” if it means a state can run an inferior system of public education for blacks and a clearly superior one for whites, Brown makes perfect sense as an interpretation of the constitution, no matter what thoughts may have been in the minds of the drafters of the 14th Amendment in 1868. (Strangely, today’s “conservatives do not generally argue that Brown was wrongly decided, as that would reveal the bankruptcy of their analytical method.)
So “originalism” is a simply a method of codifying the attitudes of a bygone time as “law” for the present age. And since (as Alito well knows) in virtually all areas social mores and “traditions” of past decades (and centuries) were more rigid, patriarchal, faith-based, and indeed racist, if one can freeze those attitudes as the only “proper” interpretation of enacted law, then today’s social reactionaries (such as the entire conservative wing of the Repub Supreme Court) are pleased with such a method. In short, it’s a legal blueprint to obtain the “conservative” result that they desire. The desired result drives the supposed reasoning.
This is not a new problem of interpretation. The same sort of rigid and reactionary thinking was advocated in the very first decades of the country’s existence. But as the Great Chief Justice, John Marshall, wrote in McCulloch v. Maryland (1819) when he had to interpret the words “Necessary and Proper” to determine the scope of Congressional power, he opted for a broad interpretation of the words when presented with a situation the Framers likely did not imagine, explaining “we must never forget that it is a constitution we are expounding”.
And that is what Alito and the democratically-illegitimate Trump justices who are his allies always want to forget, and they want to make sure it is never remembered. The constitution and laws are to be an ancient parchments frozen in whatever the attitudes of the long-dead drafters may have been. That is the wonderful contribution of conservative “originalism” to today’s world.
Yeah, I’d be curious how we can have laws for Telecommunications, Automobiles, Satellites, semiconductors, Internet, etc. etc. how did the forefathers see all those things, you know as originality, if it isn’t there, it can’t be? Lets be honest, this is nothing more than the dark ages and something akin to an Inquisition against peoples rights and free thinking and intelligence. Originality is a bunch of made up BS, the founders where very well aware that the world changes and so did the people, how the “H” can you explain the founding of the country as a revolution in core thinking and then say the founders wrote and had wanted the thinking to be held as the kings primitive law, unchangeable over time.
Of course historism is exactly opposite of originalism. One is actually following the constitution.
It’s good to be tenured
And how do you know what was in the minds of the founders and what they would say today relative to what they wrote ~ 250 years ago? The idea that somehow you can reveal what they meant and or were thinking is nothing more than some attempted voodoo seance of what you want it to say today! Welcome to our SCOTUS 2021.
PS: We are still looking in the constitution for that originalism where companies are people, and where the constitution promotes corruption with unlimited $ for elections!
Very good mini-tutorial on Carl von Savigny and historism which I’ve never heard of before. I wonder if “historism” as formulated by von Savigny is different from “historicism” which philosopher Karl Popper warned us was impoverished, dangerous and bankrupt (“The Poverty of Historicism”)?
Anyway, concerning Roe v. Wade, I’d note that Justice Blackmun’s 1973 opinion includes an examination of abortion and the law under the common law and, contrary to the leaked draft by Alito, found no evidence of abortion being prohibited at common law. Blackmun’s opinion took the view that the U.S. criminal laws against abortion were enacted at the behest of the medical profession as a trade regulation and legal barrier against the “practice of medicine” by midwives who did perform abortions in the past. I haven’t read Alito’s leaked draft but I understand (from a recent Saturday Night Live skit which mocked it) that Alito attempts to refute Roe v. Wade by pointing to some English law from the 13th century!
This, in short, supports B.K.’s comment, “originalism is a simply a method of codifying the attitudes of a bygone time.” But with the qualification that for “originalists”, like Alito, the “common law’ is a treasure trove of contradictory and inconsistent precedent that can support whatever result that serves the Justice’s preconception or, in his case, religious conviction. How telling it is that the “precedent” derives from the age of religious oppression and absolutism that many of us thought, as we were taught, were supposedly overthrown by the U.S. Constitution.
Thanks for bringing up “historicism.” Indeed very different from “historism”—at least in continental philosophy. https://en.wikipedia.org/wiki/Historism
There is such a thing as the amendment process for those who cannot comprehend or do not like originalism.
Unfortunately the excessively strict and state-based amendment procedure has turned out to be yet another total failure of the failed US constitution. To even propose amendment as an “answer” in the 21st Century is borderline cynical.
I would also note that the amendment route was not the one chosen by the “conservative” movement in its decades-long crusade to reverse Roe. It chose packing the Supreme Court with democratically-illegitimate and ideologically-motivated conservative activists masquerading as “justices”.
I’m not saying this isn’t an interesting article but so frequently academics like this strike me as struggling for relevance. The key feature that “originalism”, historicism, and historism all share is a basic level of intellectual duplicity and academic dishonesty. Without that recognition a discussion like this can’t transcend mere curiosity.
All of these “ism’s” share a fundamental reliance on manufactured history that requires active and deliberate participation in fabrication and deception. We’ve recently seen perhaps the most striking example of originalist duplicity when every single SCOTUS judge that promised to uphold R v W as “settled” law revealed their true intentions. The historical fictions they fabricate to justify their “interpretations” are a matter of record.
In the end the primary function of all of these “ism’s” is to support authoritarian regimes, it’s a pseudo intellectual basis for selective jurisprudence that empowers despots, dictators and Fascists. The linguistic history and comparisons of these terms can be interesting on a certain level, but the work they perform on behalf of oppression should be the real focus of our attention eh?
As Thomas Jefferson put it, “I set out on this ground, which I suppose to be self evident, ‘that the earth belongs in usufruct to the living’ that the dead have neither powers nor rights over it.”
This idea that the constitution and government needs to be interpreted through the lens of what people thought 250 years ago is ludicrous, and not even what the founders themselves believed in.