12.29.2005
Originalism, Political Theory, and the Framers of the Constitution
What a grandiose title! So arrogant, in a way, to purport to be explaining these things, since I know so little. But something must be said since my prior thoughts were so incompletely expressed.
Republican Bobby raised good points in his comments to my "Originalism" post, and I feel like they have helped clarify my thinking. Two points: What Scalia says about Originalism is not cannon, but it's pretty close to what most Originalists believe nowadays, and it does combine textualism as a first commitment with original meaning inquiries as a back-up (when the text is sufficiently unclear).
Methods of Interpreting Written Constitutions
As I have explored constitutional theory and the history of the American Republic, I have been guided by a few sources in this area:
These books, along with several law review articles have convinced me of a few things. First, Originalism is initially very attractive, because it offers a rather simple and elegant solution to the problem of indeterminacy in the U.S. Constitution. Originalism says, basically, that in interpreting a written document that purports to be the Fundamental Law of a state, one should rely exclusively on the original meaning of its clauses qua isolated clauses. See Ely, Democracy and Distrust. What this also implies is that an interpreter should not pay attention to the history of drafting if the text and its meaning in a given situation are plain (otherwise that would be Original Intent, not Original Meaning), that one should not view the Constitution as a holistic structure and attempt to reason deductively from one takes to be its themes (This is John Hart Ely's philosophy), and finally, one should not view vague or indeterminate clauses as abstract appeals to a higher moral authority such as Natural Law or "discoverable" and objective morality (Ronald Dworkin). Where the text is clear in meaning, nothing should trump the text. Where the text and its application are indeterminate, we go to original meaning.
Given what Originalism is, and what it is not, I think I have to explain why I think both it and its alternatives are incorrect, which is a monumental task that may be divided into multiple posts. For now, let us simply take Originalism and its claims at face value.
Say someone tells you that Originalism is the only valid way to interpret the U.S. Constitution. They have to say this because Originalism is a jealous mistress, and so strict that it does not tolerate deviations into one of the above-mentioned methodologies. A conversation:
Socrates: Why Originalism?
Originalist: It follows from the Constitution's nature as both written text and Fundamental law. First, because it is written, unlike the English Constitution (specifically unlike it, we should note!), the document must have meant to fix certain legal structures and guarantees over time, and not be subject to the varied interpretations of modernity. Second, because it purports to be the Fundamental Law of the land, it intends to fix one conception of natural law and natural rights into written form, so as to exclude from its scope the moral philosophical debates that would make for ever-changing and indeterminate legal interpretation. This is obvious when you think about it, because moral philosophers, political philosophers, and natural law theorists vehemently disagree on what pre-social rights and obligations people have to one another. A written Constitution fixes one possible meaning, and if the people find it to be wrong, they can change it by a supramajoritarian process, which also serves to retard the effects of social change in law, and forces people to make democratic commitments as to fundamental values. Judges should not disturb any of these things, because their job, as much as they can, is to determine the meaning of these isolated clauses and not to redefine the practical effect of their original meaning based on "evolving standards of decency" and other vagueries.
Socrates: That makes sense, given what I know of early American history and the role of judges then and now. It also points out that often liberal theorists do not have a "method" per se and use vague notions like "evolving standards" and "Fundamental Rights" to cover their tracks. It is pretty clear that they don't even know what they are doing when they say these things, and it is very contentious to treat judging in such a flippant manner.
Originalist: Right, I mostly agree with those statements. Why do you still seem unconvinced?
Socrates: Aren't we forgetting some key facts about the role of judges and the view of the judicial branch in 1787? Gordon S. Wood, a conservative historian, wrote both in his Creation of the American Republic as well as in his critique of Justice Scalia in A Matter of Interpretation that between 1776 and 1787 there was substantial change to the public view of the judiciary. Namely, the radical state sovereignty of the Articles of Confederation led a lot of people (perhaps a majority) to fear the raw idea of Legislative Supremacy, which leds a despot be replaced by a despotic body politic, but doesn't change the problem of despotism in government. Part of the Constitution's solution was to give the federal legislature lots of power but to allow checks and balances on its law-making activities by the Executive and Judicial branches. The checks took the form of the veto power, and judicial review, respectfully. Judicial Review is viewed in light of the 1776-1787 history as not simply an outgrowth of fear of despotic legislatures but a strong political check on that problem. Justices of the court of last resort, under this view, are meant to be political actors where the Constitution is vague, and are forced to engage in law-making.
Originalist: I'm not sure I agree with your history, because there was still a lot of fear of judicial power in 1787, and not only in isolated corners. You do not solve the problem of despotism simply by giving the judiciary the last say on the Constitution. In any case, might we infer from the judiciary's relative weaknesses and the documentation of the Framing that the judiciary was not meant to be such a powerful institution? Take as examples its status as the "least dangerous branch" in Hamilton's Federalist Paper #87 as well as its staus as last-discussed in the Constitution (Article III) and its lack of the power of the purse and sword. The judiciary can hardly enforce its rulings against a hostile congress and executive, and therefore it was never meant to be deciding purely political issues, and should resign itself to discovering constitutional law from the text and original meaning (in that order).
Socrates: Fair points. What happens when original meaning is not clear, is vague, or did not address a particular issue or application for a case?
Originalist: That is tough, but mostly original meaning provides guidance for applying the Constitution. If it does not, it is likely that the issues raised delve into political or moral matters not addressed by the Constitution, and should be left to the legislature.
Is this a fair picture of what modern Originalists think and how they would respond to these common objections?
Republican Bobby raised good points in his comments to my "Originalism" post, and I feel like they have helped clarify my thinking. Two points: What Scalia says about Originalism is not cannon, but it's pretty close to what most Originalists believe nowadays, and it does combine textualism as a first commitment with original meaning inquiries as a back-up (when the text is sufficiently unclear).
Methods of Interpreting Written Constitutions
As I have explored constitutional theory and the history of the American Republic, I have been guided by a few sources in this area:
- A Matter of Interpretation by Justice Antonin Scalia
- The Creation of the American Republic: 1776 - 1787 by Gordon S. Wood
- Democracy and Distrust by John Hart Ely
- Freedom's Law by Ronald Dworkin
These books, along with several law review articles have convinced me of a few things. First, Originalism is initially very attractive, because it offers a rather simple and elegant solution to the problem of indeterminacy in the U.S. Constitution. Originalism says, basically, that in interpreting a written document that purports to be the Fundamental Law of a state, one should rely exclusively on the original meaning of its clauses qua isolated clauses. See Ely, Democracy and Distrust. What this also implies is that an interpreter should not pay attention to the history of drafting if the text and its meaning in a given situation are plain (otherwise that would be Original Intent, not Original Meaning), that one should not view the Constitution as a holistic structure and attempt to reason deductively from one takes to be its themes (This is John Hart Ely's philosophy), and finally, one should not view vague or indeterminate clauses as abstract appeals to a higher moral authority such as Natural Law or "discoverable" and objective morality (Ronald Dworkin). Where the text is clear in meaning, nothing should trump the text. Where the text and its application are indeterminate, we go to original meaning.
Given what Originalism is, and what it is not, I think I have to explain why I think both it and its alternatives are incorrect, which is a monumental task that may be divided into multiple posts. For now, let us simply take Originalism and its claims at face value.
Say someone tells you that Originalism is the only valid way to interpret the U.S. Constitution. They have to say this because Originalism is a jealous mistress, and so strict that it does not tolerate deviations into one of the above-mentioned methodologies. A conversation:
Socrates: Why Originalism?
Originalist: It follows from the Constitution's nature as both written text and Fundamental law. First, because it is written, unlike the English Constitution (specifically unlike it, we should note!), the document must have meant to fix certain legal structures and guarantees over time, and not be subject to the varied interpretations of modernity. Second, because it purports to be the Fundamental Law of the land, it intends to fix one conception of natural law and natural rights into written form, so as to exclude from its scope the moral philosophical debates that would make for ever-changing and indeterminate legal interpretation. This is obvious when you think about it, because moral philosophers, political philosophers, and natural law theorists vehemently disagree on what pre-social rights and obligations people have to one another. A written Constitution fixes one possible meaning, and if the people find it to be wrong, they can change it by a supramajoritarian process, which also serves to retard the effects of social change in law, and forces people to make democratic commitments as to fundamental values. Judges should not disturb any of these things, because their job, as much as they can, is to determine the meaning of these isolated clauses and not to redefine the practical effect of their original meaning based on "evolving standards of decency" and other vagueries.
Socrates: That makes sense, given what I know of early American history and the role of judges then and now. It also points out that often liberal theorists do not have a "method" per se and use vague notions like "evolving standards" and "Fundamental Rights" to cover their tracks. It is pretty clear that they don't even know what they are doing when they say these things, and it is very contentious to treat judging in such a flippant manner.
Originalist: Right, I mostly agree with those statements. Why do you still seem unconvinced?
Socrates: Aren't we forgetting some key facts about the role of judges and the view of the judicial branch in 1787? Gordon S. Wood, a conservative historian, wrote both in his Creation of the American Republic as well as in his critique of Justice Scalia in A Matter of Interpretation that between 1776 and 1787 there was substantial change to the public view of the judiciary. Namely, the radical state sovereignty of the Articles of Confederation led a lot of people (perhaps a majority) to fear the raw idea of Legislative Supremacy, which leds a despot be replaced by a despotic body politic, but doesn't change the problem of despotism in government. Part of the Constitution's solution was to give the federal legislature lots of power but to allow checks and balances on its law-making activities by the Executive and Judicial branches. The checks took the form of the veto power, and judicial review, respectfully. Judicial Review is viewed in light of the 1776-1787 history as not simply an outgrowth of fear of despotic legislatures but a strong political check on that problem. Justices of the court of last resort, under this view, are meant to be political actors where the Constitution is vague, and are forced to engage in law-making.
Originalist: I'm not sure I agree with your history, because there was still a lot of fear of judicial power in 1787, and not only in isolated corners. You do not solve the problem of despotism simply by giving the judiciary the last say on the Constitution. In any case, might we infer from the judiciary's relative weaknesses and the documentation of the Framing that the judiciary was not meant to be such a powerful institution? Take as examples its status as the "least dangerous branch" in Hamilton's Federalist Paper #87 as well as its staus as last-discussed in the Constitution (Article III) and its lack of the power of the purse and sword. The judiciary can hardly enforce its rulings against a hostile congress and executive, and therefore it was never meant to be deciding purely political issues, and should resign itself to discovering constitutional law from the text and original meaning (in that order).
Socrates: Fair points. What happens when original meaning is not clear, is vague, or did not address a particular issue or application for a case?
Originalist: That is tough, but mostly original meaning provides guidance for applying the Constitution. If it does not, it is likely that the issues raised delve into political or moral matters not addressed by the Constitution, and should be left to the legislature.
Is this a fair picture of what modern Originalists think and how they would respond to these common objections?
# posted by Vanity @ 10:08 
