Let us take a brief look at two passages from Larry Solum’s defense of “Originalism” as a legal approach to interpreting our constitution in an op-ed the other day for the Los Angeles Times:
(i) “Originalists believe that judges are bound by the constitutional text and that its words should be read as the public would have understood them at the time each provision was written.”*
(ii) Two hundred and forty years ago John Adams wrote of the importance of “a government of laws and not of men.” This ideal is not some musty platitude whose time has passed. If the events of recent years show anything, it is that we should fear the arbitrary rule of individuals, who do what they want and not what the law requires. The core of originalism is the rule of law. And that is not something we should fear.”
Re: (i) We should consider long and hard what it means for a secular democratic polity to be bound, in the first instance, as a fundamental hermeneutic principle, to a “text.” This approach to the constitution renders it much like a religious text, with its corresponding aura of holiness, indeed, I would argue it makes it virtually indistinguishable from a “sacred” text, and thus we have religious-like emotions, attitudes, and approaches associated with this text. As with religious texts, there will be all sorts of interpretations: from the most literal and simple-minded to the most metaphoric or allegoric or convoluted, and these interpretive approaches will find their leading lights and juridical “sects,” both in the courts and in the legal academy. The saving grace here is that we can add amendments to the constitution, although that process is rather cumbersome and difficult. This, too, is much like the canonical texts of a religious tradition, which are often accompanied by theological and philosophical commentary, some of which may take on a life of its own (examples abound here, but consider the role of the Talmud in Judaism which has uncanny similarities with legal decision-making and judicial rulings, including the role of dissenting opinions, in our legal system).
Let’s say we can live with the constitution construed metaphorically as a “sacred text” central to the governing of a democratic polity in a nation-state. For me, the most troubling component of Solum’s description is that the words of the constitution “should be read as the public would have understood them at the time each provision was written.” I cannot summon any definitive or sound reason to account for why this should be so. To do so is akin to interpreting “our” religious texts in the manner understood by adherents at the time they were written! Do we really want to do that? I would prefer we identify the regnant constitutional values and principles within the constraints of democratic theory and practice, including human dignity and human rights (all of which have moral presuppositions and assumptions) to be our foremost guide in interpreting the constitution so as to make it relevant to our time and place. So much more might be said in defense of this but I am not willing to attempt it here, preferring instead to defer below to the observations and critiques of brighter minds than mine on this topic.
Re: (ii) To avoid “rule by individuals” through adherence to the “rule of law” in a would-be democratic polity, we need not subscribe to “originalism” unless we cannot imagine any compelling alternative. I think it is possible to imagine—and others have argued for—alternative ways to read and interpret the constitution which, while not ignoring the words, give pride of place to principles and values, all in keeping with the open-texture of our concepts. On occasion, our moral awareness, legal, and political judgments will jointly conclude that it may be necessary to let the spirit of the text trump its letter, especially if the latter is “as the public would have understood [it] at the time … [it] was written.”
* In Judge Amy Coney Barrett’s words, “I interpret the Constitution as a law,” she said, “and … I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time....” In brief, the Constitution means what it meant in the 18th century, full stop! But we live in the 20th century and how can this reading of the text be determinate under such conditions and circumstances? [emphasis added]
Cf. what Professor Michael Dorf has said about Judge Barrett’s views on “originalism” (he first characterizes her remarks from a panel they were both on):
“[She] says that she is not defending originalism as determinate (not ‘what's on offer’). She then says that originalism isn’t more indeterminate than other constitutional methodologies. Notably she does not say that it’s more determinate.
Now take a moment to reflect on what Judge Barrett has been saying since she was nominated to the Supreme Court. In her opening statement on Monday she said: ‘A judge must apply the law as written, not as the judge wishes it were.’ She then repeated that sentiment, stating that as an appeals court judge, she has done her ’utmost to reach the result required by the law, whatever [her] own preferences might be.’
What exactly does that mean when, as Judge Barrett said during our panel, the level of generality of the original meaning is too abstract to provide concrete guidance? Two justices can disagree over whether the Second Amendment protects a right to carry semi-automatic weapons in public. They can disagree over whether race-based affirmative action denies equal protection. They can disagree over whether the First Amendment protects a right to make unlimited campaign expenditures. Etc. Because of the generality of the text and its original meaning, both justices are applying the law as written. Accordingly, a promise by an originalist to apply the law as written does not preclude resort to that judge’s preferences. The under-determinacy that Judge Barrett acknowledges in the Constitution as construed by every method of interpretation, including the one she favors, invites recourse to her own preferences. [emphasis added]
Now, to be clear, I do not mean to be suggesting that Judge Barrett is more likely than any other judge or justice to see what she wants to see in the Constitution (or statutes). She isn’t. But neither is she less likely. The contrast she draws between the law as written and her preferences is bogus—and for reasons she herself has acknowledged. If, based on what we know about her record and values, you think you’re going to like Justice Barrett’s preferences, you can support her confirmation so long as you’re untroubled by the rank hypocrisy of filling this seat under these circumstances. But if you fear that Judge Barrett’s preferences will move the law in the wrong direction, then even apart from the procedural objections, she has given you all the reason you need to oppose her confirmation.”
The following remarks on aspects of Originalist constitutional theory are from Jack Balkin several years ago at his group blog, Balkinization:
“’Meaning’ is a capacious concept, and indeed, it has many different meanings, including semantic content, purposes, intentions, practical entailments, and cultural associations. Conceived most broadly, ‘meaning’ includes a vast array of cultural associations, traditions, conventions, and background assumptions. Any version of ‘original meaning’ in legal interpretation must inevitably carve out a subset of these cultural meanings and treat this portion as remaining in legal force over time. Therefore, any version of ‘original meaning’ will necessarily be anachronistic, because it will insert some portion of the vast array of past cultural meanings into a contemporary setting without bringing the other parts along with it.
Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute ‘original meaning’ for purposes of constitutional interpretation. There is no natural and value-free way to make this selection. It cannot be settled by the meaning of ‘meaning,’ much less the meaning of ‘original.’ It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have.”
“When you dig deeper into the weeds of our theories, none of our versions of originalism is truly neutral or value-free. They are premised on important values that originalism should serve, just different values. I think that it’s very important to be upfront about the normative goals implicit in any theory of interpretation, much less a theory of originalism.”
“[W]e often look to the intentions, purposes, and understandings of the framers and adopters as legal resources for constitutional interpretation (i.e., constitutional construction) but we do not always have to accept them as legal commands. In contrast, we continue to accept the constitutional text as law.”
Finally, this delightful blog post by Eric Segall at Dorf on Law gets to the heart of the “folly” of Originalism as well as the “surreal” nature of Judge Amy Coney Barrett’s testimony at the Senate Judiciary Committee hearing on her nomination to the Supreme Court.
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