1.12.2006
Originalism, Part Trois
Alright, there are two debates that surface in the comments when I write about Originalism.
The Varieties of Originalist Experience
One is that I'm not really rejecting originalism, though I am rejecting a version of it that some people hold, a version I will call "ad hoc" originalism, which holds basically that you choose the original meaning of a text only when that makes the most sense and supports the rule of law, but that otherwise you follow text, precedent, or history as the case may take you.
I am over-simplifying here, which is uncharitable. The "ad hoc" version of originalism says that when you construe the meaning of a text or clause of a text, you consider the following sources as evidence of what it could mean:
None of these is innately privileged (lexically) above the others, though some are considered to be of higher value in some cases. By this, we mean "value" in terms of the source being evidence for what the "true" or "best" meaning of the law is in that case. For example, sometimes precedent must be followed to preserve the "rule of law" values of predictability and stability in the law, which is (supposedly) why the U.S. Supreme Court in Planned Parenthood v. Casey preserved the fundamental holding of Roe v. Wade, against some very good textual reasons for overruling it. In any case, these possible "sources" of meaning are balanced against each other, and the most reasonable meaning is extracted that would serve the rule of law values of predictability and stability. Notice that this is predisposed to a certain conservatism (preserving the status quo), and it allows a genuine political conservative judge to pick-and-choose among the sources and find exactly the meaning that will preserve the status quo in as many cases as possible (except of course, where all the factors point towards a non-conservative meaning, in which case the judge can decide the case is non-justiciable for any number of reasons!). The major problem I have with this ad hoc originalism is that (1) it is not predictable as a method except inasmuch as it very often leads to preserving the status quo ante, and (2) it is inherently built to allow political decisions to be shielded under the guise of a "methodology" when in fact they (the political pre-decisions) are determinate. By allowing any of several sources to be privileged in different cases, an "originalist" in this mold can claim they are "following the rules laid down" and not doing politics, when in fact they have selected a particular source of evidence for purely political reasons. My evidence for this? A remarkable number of studies by political scientists over the past thirty years suggests that justices of the U.S. Supreme Court are relatively predictable over the long-term based sheerly on their perceived politics, and most of them are or purport to be ad hoc originalists in this mode. Whether or not you think the more "liberal" justices fall into this category is colored by the fact that they certainly reason this way for 99% of their written opinions.
It is probably true that most modern Republicans, as well as Judge (soon to be Justice?) Alito and Justice Scalia espouse a variety of this "ad hoc" theory of originalism. And without espousing it, most justices and judges actually do follow some variation on this general approach, the vast majority of the time. I do not believe this is a coherent theory, in terms of predictability. At best this makes it easier for an outside observer to predict the result a judge will come to based on the judge's politics and not on the judge's method, the latter of which is the only "legitimate" source of judicial decisions in a constitutional democracy such as ours.
Why is it easier to predict based on politics? For the vast majority of cases, ad hoc originalism, formalist originalism, and "living constitutionism" come to the same or substantially similar results. But the vast majority of cases is not what the U.S. Supreme Court hears! The U.S. Supreme Court hears only the most marginal, most tricky, most indecipherable cases, ones upon which lower courts have already disagreed. These cases demand that you have a theory that will explain and predict what the result should be, much like a science. If you don't have such a theory, then what the justices are doing is little more than politics, and they constitute an illegal super-legislature. Note that I do not think every "valid" method must be determinate in all cases, but I think that it should make it difficult to predict a judge's decisions based on politics, and that it should explain how all decisions can be made non-politically by attempting to constrain the discretion of unelected judges in these marginal cases.
There is a more "formalist" version of originalism that I consider superior from time to time. Many other thinkers have layed out such a theory, so I cannot claim credit for it. That version is basically what I wrote up in my second post on originalism: You look at the text and only the text first, and if the text is clear and unambiguous, then you use that meaning, period (textualism). Secondly, you look to the original public meaning of the statement as revealed through history or legal thought at the time of ratification to spell out the meaning as best as you can (originalism). In this "formal" definition, originalism takes back seat to textualism, and I think that is the most appropriate method because it protects the rule of law (predictability) from what we identified in ad hoc originalism - the tendency to choose your source of law based on whether it conforms to your politics. This remedies the perversion of a judge who says, "I know what the clause says, and I know it is unambiguous to a lay reader, but what the clause really means is X..." I think it is manifestly unfair to be able to alter the meanings of unambiguous clauses by reference to anything that was not ratified by the voters -- and all originalist evidence is not part of the constitution, and was therefore never voted and enacted by popular will. Therefore, I privilege textualism above originalism for that initial inquiry. To the extent we need that linguistic context to spell out the meaning of what was enacted, in the second order originalist evidence may be brought to bear on the clause.
The benefits of this formal system of adjudication is that at every step of the interpretation, you know what you can and cannot do. For example, until you have determined that it is unclear from the text (and only the text) whether the Eleventh Amendment precludes a suit between a citizen of Virginia and the government of Virginia, you cannot pursue some legislative or legal history to decide the matter.
Political Rhetoric and "Originalism"
My second major problem is with the popular use of the term "originalism." When used by talking heads on CNN or FOX NEWS, "originalism" doesn't correspond to a non-political, articulated version of either formalist originalism or ad hoc originalism. Even accepting for a moment that one could be an ad hoc originalist and not allow politics to sway one's beliefs when ruling on an indeterminate legal matter, it still doesn't correspond to the way "originalism" is bandied about on television and before the public.
What "originalism" means to the public is "conservative results," period. I could enumerate many examples, but the fundamental problem I have with calling a judge an "originalist" in the public sphere is that it means I am calling him or her a political conservative, and not describing the judge's method at all. That is because for a judge to be reliably called an "originalist" in the public sphere, they have to reject formalist originalism, which would sometimes lead to what would be called "liberal" results. They also have to have rejected a non-politicized version of ad hoc originalism as well, which could also lead to unacceptably "liberal" results. Now note that when I say this, I do not mean to say that some results are liberal and some conservative -- only that the public views it that way. The public will attribute a "liberal" label to a judicial opinion even if it is painstakingly formally originalist in its methodology. Imagine the public reaction if, for example, Justice O'Connor's dissenting opinion (joined by J. Thomas and the late C.J. Rehnquist) in Gonzales v. Raich had carried the day last June? The opinion was well-grounded in a modified (ad hoc) version of originalism that respected precedent, but it would have resulted in allowing states to decriminalize small amounts of marijuana for cancer patients to grow, purchase, and use to alleviate their pain. The public would have unequivocally responded by labeling this a "liberal" result, despite the originalism that went into it. Even using Justice Thomas's radically formalist originalist methodology from his concurrence in United States v. Lopez (1995) would have allowed California to decriminalize medicinal marijuana.
But I digress. My point is that the religious right would not get behind someone who, while reliably originalist, was also reliably "liberal" in terms of results. They would stop using the word as a positive descriptor and make of it a pejorative. That observation explains why I cannot imagine the public use of "originalism" to be anything other than a sheep's clothing trick, protecting the identity of hardcore , result-oriented conservative jurists.
The Varieties of Originalist Experience
One is that I'm not really rejecting originalism, though I am rejecting a version of it that some people hold, a version I will call "ad hoc" originalism, which holds basically that you choose the original meaning of a text only when that makes the most sense and supports the rule of law, but that otherwise you follow text, precedent, or history as the case may take you.
I am over-simplifying here, which is uncharitable. The "ad hoc" version of originalism says that when you construe the meaning of a text or clause of a text, you consider the following sources as evidence of what it could mean:
- Text
- Precedent
- Original Public Meaning
- History
None of these is innately privileged (lexically) above the others, though some are considered to be of higher value in some cases. By this, we mean "value" in terms of the source being evidence for what the "true" or "best" meaning of the law is in that case. For example, sometimes precedent must be followed to preserve the "rule of law" values of predictability and stability in the law, which is (supposedly) why the U.S. Supreme Court in Planned Parenthood v. Casey preserved the fundamental holding of Roe v. Wade, against some very good textual reasons for overruling it. In any case, these possible "sources" of meaning are balanced against each other, and the most reasonable meaning is extracted that would serve the rule of law values of predictability and stability. Notice that this is predisposed to a certain conservatism (preserving the status quo), and it allows a genuine political conservative judge to pick-and-choose among the sources and find exactly the meaning that will preserve the status quo in as many cases as possible (except of course, where all the factors point towards a non-conservative meaning, in which case the judge can decide the case is non-justiciable for any number of reasons!). The major problem I have with this ad hoc originalism is that (1) it is not predictable as a method except inasmuch as it very often leads to preserving the status quo ante, and (2) it is inherently built to allow political decisions to be shielded under the guise of a "methodology" when in fact they (the political pre-decisions) are determinate. By allowing any of several sources to be privileged in different cases, an "originalist" in this mold can claim they are "following the rules laid down" and not doing politics, when in fact they have selected a particular source of evidence for purely political reasons. My evidence for this? A remarkable number of studies by political scientists over the past thirty years suggests that justices of the U.S. Supreme Court are relatively predictable over the long-term based sheerly on their perceived politics, and most of them are or purport to be ad hoc originalists in this mode. Whether or not you think the more "liberal" justices fall into this category is colored by the fact that they certainly reason this way for 99% of their written opinions.
It is probably true that most modern Republicans, as well as Judge (soon to be Justice?) Alito and Justice Scalia espouse a variety of this "ad hoc" theory of originalism. And without espousing it, most justices and judges actually do follow some variation on this general approach, the vast majority of the time. I do not believe this is a coherent theory, in terms of predictability. At best this makes it easier for an outside observer to predict the result a judge will come to based on the judge's politics and not on the judge's method, the latter of which is the only "legitimate" source of judicial decisions in a constitutional democracy such as ours.
Why is it easier to predict based on politics? For the vast majority of cases, ad hoc originalism, formalist originalism, and "living constitutionism" come to the same or substantially similar results. But the vast majority of cases is not what the U.S. Supreme Court hears! The U.S. Supreme Court hears only the most marginal, most tricky, most indecipherable cases, ones upon which lower courts have already disagreed. These cases demand that you have a theory that will explain and predict what the result should be, much like a science. If you don't have such a theory, then what the justices are doing is little more than politics, and they constitute an illegal super-legislature. Note that I do not think every "valid" method must be determinate in all cases, but I think that it should make it difficult to predict a judge's decisions based on politics, and that it should explain how all decisions can be made non-politically by attempting to constrain the discretion of unelected judges in these marginal cases.
There is a more "formalist" version of originalism that I consider superior from time to time. Many other thinkers have layed out such a theory, so I cannot claim credit for it. That version is basically what I wrote up in my second post on originalism: You look at the text and only the text first, and if the text is clear and unambiguous, then you use that meaning, period (textualism). Secondly, you look to the original public meaning of the statement as revealed through history or legal thought at the time of ratification to spell out the meaning as best as you can (originalism). In this "formal" definition, originalism takes back seat to textualism, and I think that is the most appropriate method because it protects the rule of law (predictability) from what we identified in ad hoc originalism - the tendency to choose your source of law based on whether it conforms to your politics. This remedies the perversion of a judge who says, "I know what the clause says, and I know it is unambiguous to a lay reader, but what the clause really means is X..." I think it is manifestly unfair to be able to alter the meanings of unambiguous clauses by reference to anything that was not ratified by the voters -- and all originalist evidence is not part of the constitution, and was therefore never voted and enacted by popular will. Therefore, I privilege textualism above originalism for that initial inquiry. To the extent we need that linguistic context to spell out the meaning of what was enacted, in the second order originalist evidence may be brought to bear on the clause.
The benefits of this formal system of adjudication is that at every step of the interpretation, you know what you can and cannot do. For example, until you have determined that it is unclear from the text (and only the text) whether the Eleventh Amendment precludes a suit between a citizen of Virginia and the government of Virginia, you cannot pursue some legislative or legal history to decide the matter.
Political Rhetoric and "Originalism"
My second major problem is with the popular use of the term "originalism." When used by talking heads on CNN or FOX NEWS, "originalism" doesn't correspond to a non-political, articulated version of either formalist originalism or ad hoc originalism. Even accepting for a moment that one could be an ad hoc originalist and not allow politics to sway one's beliefs when ruling on an indeterminate legal matter, it still doesn't correspond to the way "originalism" is bandied about on television and before the public.
What "originalism" means to the public is "conservative results," period. I could enumerate many examples, but the fundamental problem I have with calling a judge an "originalist" in the public sphere is that it means I am calling him or her a political conservative, and not describing the judge's method at all. That is because for a judge to be reliably called an "originalist" in the public sphere, they have to reject formalist originalism, which would sometimes lead to what would be called "liberal" results. They also have to have rejected a non-politicized version of ad hoc originalism as well, which could also lead to unacceptably "liberal" results. Now note that when I say this, I do not mean to say that some results are liberal and some conservative -- only that the public views it that way. The public will attribute a "liberal" label to a judicial opinion even if it is painstakingly formally originalist in its methodology. Imagine the public reaction if, for example, Justice O'Connor's dissenting opinion (joined by J. Thomas and the late C.J. Rehnquist) in Gonzales v. Raich had carried the day last June? The opinion was well-grounded in a modified (ad hoc) version of originalism that respected precedent, but it would have resulted in allowing states to decriminalize small amounts of marijuana for cancer patients to grow, purchase, and use to alleviate their pain. The public would have unequivocally responded by labeling this a "liberal" result, despite the originalism that went into it. Even using Justice Thomas's radically formalist originalist methodology from his concurrence in United States v. Lopez (1995) would have allowed California to decriminalize medicinal marijuana.
But I digress. My point is that the religious right would not get behind someone who, while reliably originalist, was also reliably "liberal" in terms of results. They would stop using the word as a positive descriptor and make of it a pejorative. That observation explains why I cannot imagine the public use of "originalism" to be anything other than a sheep's clothing trick, protecting the identity of hardcore , result-oriented conservative jurists.
# posted by Vanity @ 11:19 
