My Problem with Originalism
I’ve long been uncomfortable with originalism as a method of constitutional interpretation. But I was never sure why. It’s not for the standard reasons that people give for opposing originalism. Today I had a new thought about this.
Perhaps what bothers me is that originalists almost always say that the original public meaning is also normatively good. In other words, you rarely hear the following argument:
- The original meaning of a constitutional clause is X.
- That’s terrible.
- But we have to apply that terrible principle because we are bound by original understanding.
How do people avoid this logic? One way is to come up with a different original meaning to avoid the terrible result. Another is to deny that the original meaning is, in fact, terrible. (Non-originalists can go with the option of denying that step #3 is true, though they increasingly just act creatively at step #1.)
Why do people want to avoid this chain of reasoning? First, we don’t like to admit (at least today) that parts of the Constitution properly understood are terrible. Second, lawyers may feel that openly saying that we are bound by something terrible would undermine confidence in the law.
Anyway, this is a tentative thought. Not yet a theory.