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Saving Originalism
Ricochet members love to debate the meaning of the Constitution. Many of us are what might loosely be called originalist — we should interpret the Constitution based on the words of the text as they were understood by those who ratified the document.
I’ve posted a piece that tries to explain why originalism might be the best form of constitutional interpretation. The occasion was a book review, coming out in Michigan Law Review, with Robert Delahunty of a book by Akhil Amar, my teacher at Yale Law School: America’s Unwritten Constitution. We argue that originalists would have difficulty acceping Amar’s defense of unwritten constitutional rights, even though they would have agreed with his methods in his earlier great book, America’s Constitution: A Biography.
In short, we argue that originalism started out as a way to constrain judicial activism, but has grown into a lively field that has won many more adherents that you would think. We set out a history of originalism. But then we argue that originalism makes sense from the perspective of the Founders because the North and South, big states and small states, had to commit to each other that they would not try to rewrite the constitutional deal, even when one side or the other might grow in power over time. What do people think of this international politics approach to our Founding document?
The paper is available here, download for free.
Published in Law
Your central point is that the Constitution’s “bargaining” virtue is that it acts as a guarantor of the terms of the deal. But that slides past the most important concept; that the Constitution is inherently a deal. The authority of the Constitution comes from the consent of the governed.
It is not a “deal” with the same terms as a contract. You can’t make a deal among millions of citizens where each citizen individually agrees. So the game is based not on perfect agreement of each individual, but the more practical alternative of a “sufficient” majority. Fine. But while it isn’t as simple as a contract, it remains based on consent.
That said, what gives the Constitution its authority is that it’s the tangible, visible, corporeal body of the agreement among citizens. The purpose of the words is precisely to embody the agreement. The agreement has to have a form. I mean, the need for an objective form is why we write it down. We go through the exercise of writing it down to create an objective marker, a clear beacon, and a canonical measure.
Originalism is the insistence on an objective form, not merely one literary technique among many. The text has power because it is the single thing that all of the ratifiers specifically agreed to.
We’ve talked in the “science” threads about falsifiability. That’s the same concept as objective text. The text is the one thing that’s objective, and supplies the standard against which everything else can be falsified. Without some mechanism of falsification, interpretation has nothing to go by.
Just read the thing. Don’t get creative. Err (and err you will) on the side of “this is none of the government’s business.”
Penumbrae do not have emanations.
Well done, Sir!
My working, rough and ready, unrefined definition of originalism is: the theory that the meaning of the Constitution changes only when the text of the Constitution changes.
As a broader theory of the meaning of any text, there are what we could call weak and strong originalism: the weak version claiming that there is a meaning to the text that does not change unless the text changes, and the stronger version claiming that there is such a meaning, and no other meaning.
One of the nice things about weak originalism is that you can’t argue against it and at the same time put the argument into writing and hope to get credit for the writing–unless you mean to carve out your own text as an exception to your argument.
But if the esoteric scholarly articles against originalism written by clever philosophers and linguists and lawyers can have meanings sufficiently fixed and accessible for their authors to get credit for them, then it should be possible for the text of the Constitution to also have a fixed meaning sufficiently accessible to be useful.
(And, for that matter, it should be possible for the Bible.)
Oh come on, Mark. The Bible was written thousands of years ago. How could we possibly know the cultural and linguistic milieu within which those laws were written, and therefore can’t all of us reinterpret what the meaning of words like “adultery” and “false witness” really means?
(Yeah. My wife wouldn’t buy that, either.)
I actually had a religion professor once state in class that if people espoused originalism, then they were hypocrites if they didn’t also support slavery. (Naturally he also had no problem reinterpreting the Bible to be in favor of homosexuality.) This sort of superficial view of originalism is typical of people who dismiss it.
One thing that might bear investigating is the intent of the founders as regards the size and scope of government. Jay Cost’s new book addresses this, and it’s on my ‘to-read’ list. As I understand it, originalism addresses the intent of the founders as regards to the structure of the government, and also that it should be limited in scope. But that ship has sailed; how can originalism help us when there is no longer any limitation on the size and scope of government?
This is an excellent and interesting article.
I think that the “international politics” approach in the article is a good analogy, but it doesn’t sound like a new idea to me, and it may have a serious flaw.
(1) A government based on the consent of the governed
This view of the Constitution is an application of “social contract” theory, of course, which seeks to implement consent rather than force as the fundamental basis of a system of government. Philosophically, a system based on consent is greatly preferable, especially for an American, as the assertion that government “derives its just powers from the consent of the governed” is one of the “self-evident” truths asserted in the Declaration. There is something inherently sordid and illegitimate about a system of government based on the exercise of raw power.
The reason for this American preference is equally obvious. The Founders were men of the Enlightenment, with a high sense of morality and belief in the importance of social order. They needed a strong justification to break their allegiance to the British king and government.
In addition, as a practical matter, the idea that the people have “consented” to the government (in some sense) can impart in the people a greater allegiance to the government, and therefore provide the incentive and emotional sense of loyalty that leads citizens to make the sacrifices needed to preserve it in times of war and other serious crisis.
I know, all of this is pretty obvious.
(2) The possible flaw in the “international politics” model
The “international politics” model advanced in the Yoo/Delahunty article posits that the 13 states were the relevant actors in the making of the Constitution. While it is certainly true that the Constitution was ratified on a state-by-state basis, the Constitutional text itself states that it is compact made by “We the people of the United States of America . . ..” Thus, the “high contracting parties” (to borrow a phrase from international law” are the people, not the 13 states.
It seems to me that this may have important implications for constitutional interpretation, though I haven’t thought them through in much detail. For one thing, it weakens the argument for the legitimacy of secession by any state.
(3) A visceral reaction to tyranny
Fundamentally, my objection to non-originalist methods of constitutional interpretation is a visceral reaction of anger and outrage to the imposition of tyranny inherent in such action. It flows from the knowledge that such interpretation undermines the concept of “consent” upon which my allegiance to the US is based. The basic feeling is: I’m not being governed by Abraham Lincoln. I’m being governed by Darth Vader.
I use Vader as the analogy because I think that the best movie scene capturing this visceral reaction is in The Empire Strikes Back, when Lando protests that their deal did not include turning Leia over to Vader, or turning Han over to the bounty hunter. Vader responds:
“I am altering our arrangement, pray I don’t alter it any further.”
This is when Lando realizes that he’s dealing with pure, tyrannical evil. You can’t rely on any bargain made with such evil. You can only resist and fight it, as your circumstances allow.
Notice that Vader even wears a black robe. OK, it’s a cape, but it’s pretty close.
(4) The temptation of power
The above discussion is pretty harsh on the USSC and other courts, so I want to add a note of moderation and further explanation. The courts do sometimes act contrary to the constitutional compact, but so do the other branches. The problem is, of course, most notable in the courts because they often act last, simply because of the nature of the judicial power. Further, in our system, there is no effective check on the power of the courts in this area.
I realize that the power to make Constitutional rulings must be a terrible temptation for judges, especially on the Supreme Court. This is precisely the reason that the “living Constitution” theory is so wicked and insidious, as it provides a justification for yielding to this temptation.
(5) Weaknesses in the Constitution
A serious problem with originalism is that it would uphold many practices and laws considered wholly unacceptable by modern consensus. For example, Plessy v. Ferguson was probably decided correctly as a matter of original intent or meaning, as I believe that the same Congress that passed the 14th Amendment either enacted, or left in place, segregationist laws in DC. Similarly, I think that there is little or no originalist sanction for applying the equal protection clause to sex-based distinctions.
The simple fact is that there are many injustices that the Constitution, with its amendments, does not solve as a matter of original intent or meaning. Continuing to use segregation as an example, it seems to me that the trend in popular opinion against segregation that grew in the 1950s and 1960s would have culminated in a new Constitutional amendment banning government discrimination on the basis of race or ethnicity, and probably banning discrimination on the basis of sex as well.
On balance, I think that the better policy is to trust “the people” and the amendment process.
What I called weak originalism above guarantees strong originalism whenever there’s a bit of original meaning that claims that there is no other meaning.
I think we have that in the Constitution with the enumerated powers clause.