A set of enduring core principles
Is constitutional originalism even possible? Does it even mean anything?
Advanced most influentially by Robert Bork and Antonin Scalia, two law professors turned judges, originalism contends that the Constitution should be interpreted and enforced on the basis of its “original meaning,” namely what it meant when it was adopted.
But how do we know what it meant when it was adopted? How do we find out what it meant then?
There is a certain appeal to originalism. At a time when the world seems increasingly complicated, originalism, like other forms of fundamentalism, promises simple answers. At a time when distrust of institutions, including courts, is high, originalism purports to tie judges’ hands. And in a divided nation that no longer seems to have shared values, originalism directs courts to enforce the understandings of a presumably more cohesive past.
Presumably indeed; it was “cohesive” in the sense that most people had no voice, which does simplify things a lot but doesn’t demonstrate that everyone agrees with the few voices that do get heard.
But the simplicity and objectivity that originalism promises are a charade. In Worse Than Nothing, Erwin Chemerinsky, the dean of the University of California, Berkeley, School of Law and one of the nation’s leading constitutional scholars, offers a concise, point-by-point refutation of the theory. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.
…
Originalists must first decide which historical evidence counts, and as every historian knows, that requires a great deal of judgment. Early versions of originalism referred to the “original intent” of the framers, but little evidence of their intent exists.
Well it’s like God’s intent. There is no evidence, but we know it when we see it.
After years of criticism along these lines, scholars advocating originalism conceded the difficulty with discerning “original intent.” So the revised version of originalism directs judges instead to the “original meaning” of the Constitution, that is, what its words meant to the public when they were adopted.
And to discover that all we have to do is ask said public. Simple.
Original meaning is guided by dictionaries of the time, as well as contemporaneous usage and practice. But dictionaries often provide multiple definitions for a given term, legal meanings can differ from ordinary meanings, and contemporaneous practices often varied greatly, even assuming that the Constitution was meant to codify some of them. Thus, Chemerinsky argues, “for most constitutional provisions, there is no ‘original meaning’ to be discovered. Instead, there is a range of possibilities that allows for exactly the judicial discretion that originalism seeks to eliminate.”
But but but how can that be? How can it be complicated? Surely the further back in time we go the simpler everything gets!
Even when the Constitution contains relevant text, its meaning is often ambiguous. Many books have been written explicating the meaning of “equal protection” and “liberty” in the Fourteenth Amendment; a dictionary from 1868 or a review of contemporaneous laws and practices will generate multiple possible definitions, thus vesting the originalist with plenty of discretion about which to choose.
It’s ok for the originalists to have discretion, but those pesky liberals can’t be trusted with it.
More significantly, does the equal protection clause of the Fourteenth Amendment prohibit racial segregation? If one reads the term “equal protection” in light of contemporaneous practices in 1868, one would conclude that segregation was permissible—as seven of eight Supreme Court justices did in Plessy v. Ferguson (1896). To hold that segregation is prohibited, one must read the guarantee of equal protection at a higher level of generality and apply its principle of equality in a way that the ratifying generation would not have. The same is true for whether the clause prohibits sex discrimination. In 1868, women lacked the vote and were excluded from many professions, including the practice of law. And the immediate aim of the amendment was to protect newly freed slaves, not women. It wasn’t until the 1970s, in the midst of the women’s rights movement, that the Supreme Court interpreted it to presumptively prohibit sex discrimination.
Higher level of generality=something like: no discrimination on arbitrary grounds that keep some groups of people powerless and marginal. It’s a very important higher level of generality, one that was apparently so high that almost no one could even see it until relatively recently.
Perhaps most fatally, originalism fails its own test. There simply is no evidence that the Constitution’s original meaning was that it should be interpreted according to its original meaning. There is substantial reason to believe the contrary. The fact that the framers used general terms, such as “liberty,” “due process,” “equal protection,” and “cruel and unusual punishment,” strongly suggests that they understood they were drafting a charter meant to long outlive them, one that could guide unforeseeable resolutions to unforeseen problems. If you want to bind people to your specific intentions, you write with specificity. The framers chose not a stringent straitjacket but a set of enduring core principles whose meaning and applicability would unfold over time to meet the evolving needs of a growing nation.
Evolving needs: who could possibly have foreseen such a thing?
And we have a number of state constitutions to show us what that looks like. For instance, the Oklahoma Constitution, written during a time where everything plus the kitchen sink was included in the document. It is bulky and nearly unworkable because it is weighted down with minutiae.
It’s obvious the framers expected the Constitution would change; one of the first things they did was change it, adding ten amendments. They were living in a time of enormous change, as the Industrial Revolution was making huge alterations in society. They would likely have figured changes would continue, and they probably knew a constitution would need to be a living document.
Though, actually, this is one of the best documented episodes in history, with plenty of extensive writings by relevant people.
They did indeed foresee that needs would evolve. That’s why they included a mechanism for changing and updating the constitution. Indeed, they envisaged that there would be Constitutional Conventions to rewrite things, perhaps every generation or so.
There is actually a lot to be said for originalism. It is not the doctrine that the constitution is a fixed straightjacket for all time. Rather, it is the doctrine that updating it should be done by elected representatives, not by unelected judges.
I’m interested, do Americans consider that the SCOTUS — with the extremely contentious and divisive appointment of judges, and the fact that their rulings don’t derive from the actual law, but from the justices’ politics, even though you didn’t get to elect them and can’t vote them out — is an example of a system working well?
To me, it seems pretty obviously one of the most dysfunctional aspects of the current US political system. And that is precisely because it amounts to unelected judges effectively making up the laws, while in a democracy it should be elected legislatures.
For example, in nearly all of Europe, laws on abortion are determined by elected legislatures. In the UK we had Parliament pass a law. And the outcome is accepted and not that contentious today. Ireland (just as religious as the US) held a referendum, and the outcome is now widely accepted.
In the US, the topic is hugely contentious and divisive, and that (it seems to me) is to a large extent because the people have not been allowed a vote. Instead, people have looked to 9 unelected kings (sorry, judges) to tell everyone what’s allowed. And this in a nation based on “We the people”.
And yet, polls show that, if the American people were allowed to vote on a European-style law allowing abortion, then it would pass with something like 70% approval.
Sorry Americans, I love you guys, but your political system can be a bit weird!
I’m not a supporter of extensive direct democracy. We choose elected officials so that they can learn the details and make informed decisions, and the rest of us don’t have to be bothered with quite as much learning about every little thing. At least that’s the way it’s supposed to work. It’s the same with a lot of professions, we hire people to have the knowledge and skills necessary to do the jobs, and we are supposed to be freed from having to do everything ourselves, along with having to know about everything in depth.
Coel, I agree with you that SCOTUS is dysfunctional right now. But what I think is the most dysfunctional aspect of US government is the Legislature. They are supposed to be knowledgeable people working for the good of the country, and they end up as parties squabbling for power, punting many of the decisions to the Executive and Judicial branches. There should be many fewer important cases even reaching SCOTUS. Who gets elected president should not matter nearly as much as it does. And this situation is largely because the Legislative branch is not functioning well, not doing the job it was intended to do.
The problem is that the Founders were so terrified of democracy that they installed a system with so many “checks and balances” that it’s a recipe for gridlock and lack of accountability. Recent custom has only made this worse through things like requiring 60 votes in the Senate to pass most measures.
In other countries, one party (or a coalition of parties) wins an election, and has more or less free reign to govern as they see fit, subject to some broad restrictions. Then after however many years they have to return to the voters and be judged on their governance. But in the U.S., what are voters deciding this midterm election on? Democrats haven’t been able to do much of what they’d like because they weren’t able to get 60 votes in the Senate, or because Manchin or Sinema wouldn’t supply the 50th vote, or because the Supreme Court intervened. And it’s even worse when there’s divided government. Assuming the GOP takes at least one house of Congress, governance in 2023-24 is going to consist of whatever Biden can do through executive power alone, plus the bare minimum that can actually be agreed upon to keep the government funded and the debt ceiling raised. Will voters in 2024 blame Biden for not getting more done, or blame the GOP for obstructionism? Who knows? We’re lucky if the average voter knows who controls either house of Congress at any given point in time, they sure as hell don’t know what a cloture vote is.
Since most voters don’t know who to praise or blame for what they like or don’t like about the state of the country, there’s no real accountability. As a result, we’re seeing more and more “Constitutional hardball.” Not enough voters give a shit about things like democratic norms, so the GOP seeks to grab power by whatever means are technically available or at least give the appearance of being available.
Some Americans are so used to Constitutional hardball that they’re befuddled that other countries don’t play it. Many of them can’t grasp the idea that the sovereign of the United Kingdom “reigns but does not rule.” (Note: I’m not referring to Americans who dislike the idea of monarchy or have objections to it. I’m just talking about the jokers who think that there’s a real danger that Charles is going to, I don’t know, outlaw certain types of architecture he doesn’t like.)
The Canadian constitution allows federal and provincial legislatures to override the constitutional Charter of Rights, via something called the “notwithstanding clause.” It gets used occasionally, but mostly to prohibit strikes by certain unions (Ontario is considering that now, I believe), or by Quebec to enforce some of its language laws. There’s also a power of disallowance whereby the federal Cabinet — it doesn’t even require a vote of Parliament — can veto a provincial legislature’s passage of a bill. That power hasn’t been used since 1943. I can only imagine the shitshow that would result if American states could override the Bill of Rights, or if a President could invalidate state laws.
“Originalism” is just Death of the Author applied to law, and it’s every bit the same pomo bullshit as that implies…
Honestly, I tend to agree with the framers that direct democracy isn’t great; the Republicans are well positioned to steal the 2024 election because voters are stupid, which is to say mostly do not have above average intelligence and are poorly educated. They see high gas prices and inflation and blame the party in power. But I ask you, how is that likely to change? Does no one do the thought experiment necessary to evaluate whether things would improve?
Ultimately in any high turnout election *every* vote is a protest vote.
[…] a comment by Screechy Monkey on A set of enduring core […]
Not being American, this issue doesn’t effect me immediately, but I can see how American developments in law and governance can have influence on how things are done- or not- in other places. I’ve always tempered my admiration of some aspects of the US Constitution by rembering that it was put together in part by people who thought owning human beings as property was a good idea, and that the failure to come to terms with the moral and political implications of this belief resulted in a bloody war less than a century after the Republic’s founding. The US is still struggling with that poisoned legacy. Going back to the original intentions of those who failed to deal with slavery in the first place isn’t always going to be a move in the right direction. Consult their ideas and ideals by all means, but their words are not Holy Writ.