One of the podcasts I try to keep up with is the Mercatus Center’s “Conversations with Tyler.” Which are exactly that, conversations with Tyler Cowen. His guests are interesting and varied and Tyler comes to the event extremely well prepared. A more recent conversation interviewed historian and author Jill Lepore, also a Harvard professor. Sadly, the only thing I have read of hers as of now was “The Secret History of Wonder Woman,” which was fascinating. Cowen asked Lepore about originialism and Lepore responded with doubts about it as a manner of legal interpretation due to the difficulty of the method, and tendency to compress history like an accordion and miss the important development in between. I have heard similar concerncs from others as well. I believe philosophy professor and author Tara Smith voiced a similar (but not duplicate concern) in an interview on her smart book “Objective Judicial Review.” Since they voice similarities in their concerns, as have others, I think it is worth considering: Why originalism?
- There is a preference in most legal systems to have judges which are bound by some underlying principles which comport with the normative goals of a justice system, such as predictability, knowability, and the Rule of Law, among others. To that end, a legal system must bind judges to some legal standard, this is true even when they are “making law.” Our Constitution states in the preamble a few normative goals as follows: to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Though these may not be the only normative goals, it provides an illustration of the aims of the the Constitution and of law more generally.
- The set of legal standards which judges rely upon may arise from various sources. Precedent is once such method of developing legal standards, e.g. the common law, and, so was the natural law theory in later years (which was also often expressed in the common law and in various political documents). In the United States, these traditions continued, but are also anchored by a written constitution.
- A written constitution requires some method of interpretation in order to meet some of the normative goals and adherence to the text (which may support other goals as well, such as limiting power or protecting rights). A goal of many founding documents, such as the U.S. Constitution, is to meet the normative requirements of a justice system and government while also binding judges and political actors to something beyond mere preferences.
- However, text is often ambiguous, vague, word meanings drift over time, and the meaning of words and phrases may hinge in some degree on the context of the document and the period in which it was written. Thus a focus on the text is a beginning in terms of interpretation, but does not answer every legal question. So, textualism is an important first step, but fails to answer many legal questions primarily because text itself may be ambiguous or muddied by time.
- Determining meaning is then a tricky matter judges constantly face, whether it be a statute or constitution they are interpreting. Because of this challenge, there is a long standing tradition of adhering to particular cannons of interpretation, and other similar rules such as stare decisis. This helps achieve some of the normative goals of a legal justice system, i.e Rule of Law or predictability.
- When interpreting a written Constitution it is then incumbent on judges to adhere to a methodology of interpretation in determining legal meaning. Attributing meaning and preventing judges from reading preferences into the law is where orginalism comes into the picture, which is primarily a methodological argument in determining legal meaning, not a historical treatise.
- In contrast, a tabula rasa method of interpretation would allow judges to assign legal meaning according to their preference regardless of any current or past meaning. This isn’t anyone’s method of interpretation that I am aware of, but living constitutionalism is somewhere on that spectrum of seeing the Constitution as a blank slate- or as an empty vase merely waiting to be filled with meaning- and a stricter textualist approach where meaning has been assigned. However, I suspect that living constitutionalism, unless bound by some principle, would continually drift to a tabula rasa view of the Constitution. Consider the requirement that the President is not eligible for office without first having “attained…the Age of thirty five Years.” This appears, on the face, clear-cut. But suppose it became the cultural norm to count age differently or adhere to various methods simultaneously, such as is common practice in many Asian cultures. This possible shift in definition, which creates ambiguity, demonstrates how the legal meaning may drift and provide various opportunities for inserting political or personal preferences into the Constitution. Additionally, many argue that due to the unforeseeable nature of modern conditions, the outdated or archaic argument, the rules should evolve to include evolving norms and political preferences. In the previous example of age, one may argue, that such a requirement was necessary at the time because the American system was in its infancy and has since evolved past that necessity. This style of argument is made frequently but is unpersuasive because such eventualities-changed circumstances- are contemplated by the Constitution.
- Originalism is then not about enacting policy preferences from 200 years ago (though there is certainly overlap with policy outcomes and legal meaning) but instead ensuring legal meaning comports with normative goals of a justice system and government including providing a methodology that removes the bias, preferences, and politics of judges as much as possible. In consideration of the context of our constitution and founding, there are certain structural elements that arise, such as separation of power, enumerated powers, and a conception of rights as found in the Bill of Rights, which are written in a Constitution to be preserved, not changed without adherence to the amendment process. If such meaning is consistently drained there is little point to such an amendment provision or even a written constitution.
- Originalism requires that when legal outcomes fail to comport with the goals of securing a government, supporting a justice system, and ensuring rights, then it has provided a remedy, that of Amendment. If not, perhaps there would be a greater justification for amendment by interpretation. This means, where the Constitution fails it reverts back to the people for a solution, until then even the democratic legislative process is insufficient to shift the legal meaning (and thereby protection and structure) without appealing to the people via the amendment process.
- Originalism itself has evolved as a contemporary theory, mostly because the methodology we call originalism was abandoned for some time for a more flexible interpretation (living constitutionalism or judicial minimalism have both had successes) before being revitalized in more recent times. As a theory , it has gone through some growth in determining how to extract meaning from the text of the document and originally leaned heavily on “original intent.” This provided a fair amount of controversy and difficulty due to the various intents of the founders, however, the preferred current theory is that of original public meaning, which relies on the common use of words at the time to provide legal meaning. This does not eliminate all other venues of history, but narrows ambiguity and focuses the legal question.
- Last, as Lawerence Solum testified to Congress, originalism, as imperfect as it may be, is the law of the land, and has been for the majority of our nation’s history. The departure is the aberration not the rule. Originalism is also the preferred methodology of interpreting state constitutions. Originalism can be considered the appropriate means of applying legal meaning to the various factual scenarios, some novel questions of law, that arise currently under the Constitution in order to bind judges, adhere to the rule of law, and to pursue the normative ends of law by adherence to
It is worth acknowledging that originalism itself may not answer every single legal question. Perhaps there is not enough information to make a determination about the public meaning of any word or phrase, or perhaps, it was ambiguous even at the time. However, the point of this essay is not to develop a fully formed method of interpretation, but to argue why originalism is the best method as far as constitutional interpretation is concerned and is the correct starting point in any inquiry. From there various challenges will certainly arise, hard cases are bound to appear before the courts, but the starting point matters, both in deciding those hard cases and determining which are the hard cases.
In short, originalism is the best methodology for ensuring the normative goals of law and of the Constitution are reached, including maintaining the government it establishes and the people it protects. It also allows those very people to correct it when the results do not align with the desired ends, as has been done in the past.
James Devereaux is an attorney. All views his own and he can be reached via twitter @jcdevereaux1.by