The Cognitive Illusion of Constitutional Originalism

The past is myriad. When we search the past, whether our own memories or the historical record, we open ourselves to a variety of cognitive biases.

Our belief that our memories are accurate and complete is an illusion. The illusion allows us to believe that we are consistent and know what happened.

As with memory, so with history. Constitutional originalism is also a cognitive illusion—a story told by lawyers and Supreme Court justices justifying decisions. Basic cognitive psychology helps us understand these illusions of memory and of originalism.

The Illusion of Memory Accuracy

Let’s start with the basic cognitive psychology of remembering our own experiences. Remembering is an active process. We have an idea and search our memories for something that matches. We are always guided by our current beliefs and attitudes. As Bartlett (1932) wrote nearly a hundred years ago: when a person is "...asked to remember, very often the first thing that emerges is something on the nature of an attitude. The recall is then a construction, made largely on the basis of this attitude, and its general effect is that of a justification of the attitude."

Here we see both the selective nature of remembering our own experiences and the nature of reconstructing our past to fit with our current understanding.

When I remember my personal past, I experience something of a confirmation bias (Nickerson, 1998). My current environment reminds me of similar experiences. My emotional state will bring to mind other times when I have felt this way. Memory is always selective. We often recall events that match and confirm our current situation.

And when I remember, my memories are always constructions. I reinterpret the past based on my current understanding. I highlight some aspects, ignore others, and change the past to fit how I see the world now (Ross, 1989). Two people can experience the same event, but remember it very differently. They are each rewriting their memories, guided by their attitudes. This is also how we change our own memories over time. When we remember relationships, for example, we highlight and modify our memories based on our attitudes about a current or former partner (Drivdahl & Hyman, 2014).

The Cognitive Illusion of Unbiased Experts

When people put of the robes of a judge or the white lab coats of a scientist, they do not turn off these basic cognitive biases. As a scientist, I’ve read thousands of scientific papers. I am always guided by my understanding of the problem domain, by my theories. I search the literature to find evidence to support my arguments. When I read research from years or decades ago, I interpret that work based on our current theories in the field. My current interpretation may not match how the original authors thought about their work. We have processes, such as peer review, to limit these biases. But the biases remain. We simply work hard to be aware of our biases and limit their role.

Judges, including Supreme Court Justices, are no different. They don’t stop being human when they slip into their robes. When they search history, they do so with a goal. They are searching for precedents consistent with the argument they are making. If they are originalists, they read the papers of the founders of our country, searching for evidence that those people had particular ideas. They find pieces that are consistent with their goals and attitudes in the moment and ignore other writing that is inconsistent: that’s the confirmation bias at work (Nickerson, 1998). They will also reinterpret those dusty old writings from centuries ago based on their current goals and attitudes. They cannot do anything else. It is impossible to see the world as the framers of the Constitution did. And it is impossible to set aside one’s own perspective when reading those old words.

Anyone who claims to be a Constitutional originalist is simply engaged in the process of selecting historical writings consistent with their own views. They reinterpret those writings based on their current goals and attitudes. The risk is that they do not acknowledge the way in which their goals and attitudes lead to selective searches, confirmation biases, and reinterpretations of historical documents.

Applications to Current Supreme Court Decisions

I am not a historian, but I trust the historians who are experts in the field. They have noted that many of the cases decided by originalists involve biased readings of history. You can read about specific concerns with the sources used in this week’s ruling overturning Roe v. Wade in the New York Times and this discussion in the New Yorker of the ruling striking down a 100-year-old gun safety law. Consider this quote from historian Jill Lepore (in the Washington Post): “The version of American history you get from constraining your historical evidence to the documents originalists see as mythical gives you centuries of constitutional history when women and people of color were completely disenfranchised.” And definitely read this for a better understanding of how reproductive rights were a critical aspect of the anti-slavery 13th and 14th amendments by Michele Goodwin (New York Times).

My point is simple. When we remember our personal past, or search a country’s historical past, we do so from our current perspective. Thinking that we have an unbiased view of our past is misguided. We select and change our memories over time. Thinking that anyone has special insight into the goals of historical figures is similarly misguided. They are simply viewing the past selectively and revising it to be consistent with their current goals.