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:

  1. The original meaning of a constitutional clause is X.
  2. That’s terrible.
  3. 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.

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11 Responses

  1. Joe says:

    Scalia repeatedly noted that his constitutional vision required him to support as a judge things he personally opposed. He repeatedly criticized others for trying to get a result that is deemed good as compared what the law requires. Whatever he was, and I believe he considered himself an originalist, he seems fairly typical in that sense.

    It does seem that originalists as a whole like the results of their constitutional interpretation as a matter of policy, all things being equal. Goodwin Liu once noted that really Scalia didn’t have to make too many hard decisions. Even Scalia’s quip about not liking dirty hippies is a bit hard to believe since Scalia is outspoken, so uncomfortable dirty hippy talk just follows his overall sentiments. Surely, some exceptions can be found, but overall, Scalia’s views as a judge and man seem to overlap a lot.

    But, I’m sure you can find originalists talking about how they think such and such constitutional provision leads to bad results and they rather it be changed. And, as Sandy Levinson and others note, there is really a general trend to suggest the Constitution will lead to good results if applied correctly. Basically, originalists aren’t the only group not inclined to note the Constitution leads to bad results.

    I say all of this not being a fan of originalism, at least as it is generally understood. It does have certain Calvinball tendencies.

  2. Dialing it Back says:

    When congress-people, like Ron Paul, call for the repeal of the Sixteenth (16th) Amendment, do you think they are calling for something other than the repeal of the original meaning of that amendment?

  3. Brett Bellmore says:

    Well stated, and it sums up exactly why I could never be a living constitutionalist.

    1. The original meaning of a constitutional clause is X.
    2. That’s terrible.
    3. But we have to apply that terrible principle because we are bound by original understanding.

    How do originalists avoid this logic?

    We don’t. We note several things:

    A. *People disagree about what is terrible!*

    “This is the policy which has been adopted according to the law as written.” is a legal judgment. “That’s terrible!” in’t a legal judgment, it’s a POLITICAL judgement. It’s the sort of decision we hold elections and referendum to settle. I guarantee, name any feature of the Constitution you find terrible, and somebody, somewhere, likes it, and would find your substitute terrible. Maybe even a political plurality or majority like your “terrible”, and want to keep it.

    This should be no surprise. Your “terrible” wouldn’t be in the Constitution in the first place if somebody hadn’t, at one time, had a good reason for thinking it was a good idea. A lot of people probably still agree with those reasons.

    B. *The Constitution can be amended!*

    Notice that your (admittedly short) post doesn’t acknowledge this. It leaves no way out of “”that’s terrible” except saying the meaning is something else. This is not an accident! The living constitutionalist’s “terribles” are typically features of the Constitution *they haven’t got the political support to change*. If you had the political support, you wouldn’t go all living constitution on us, you’d just push for an amendment.

    So, living constitutionalism doesn’t just import political judgements into the judicial realm. It specifically does it where *they have been or would be rejected by the political realm!* It’s nothing but a way of winning political fights in the courts that you lost in the voting booth.

    C. It isn’t the “original” meaning. It’s just “the meaning”. This is important, because when you go living constitution on a clause of the Constitution, *the clause and it’s meaning don’t actually change.* You just enlist the judiciary in what amounts to a conspiracy to pretend they mean something different.

    This is very, very important, because, where the Constitution is amended, everybody can see that it has changed, the new words actually mean the changed meaning. But where living constitutionalists prevail, everybody can see the opposite: That the Constitution *hasn’t* changed, and the old words *still mean the old meaning*.

    And people NOTICE THIS. Do you think that doesn’t have practical consequences?

  4. Brett Bellmore says:

    The ERA and Obergefell are (is?) a perfect example of what I’m talking about.

    When the advocates to strict legal equality between the sexes thought they had political support, they pursued the Article V approach, drafting an amendment, and trying to get it ratified.

    But it ultimately failed.

    Did they then concede, or just keep at the amendment? No, they switched to living constitutionalism, arguing in court that the substance of the ERA was already part of the 14th amendment. Now, this was historically absurd, and made the 19th amendment redundant, but they pursued it anyway, and ultimately succeeded. Without any change to the Constitution, without ratification by the states, the ERA is now effectively incorporated into the Constitution by the judiciary.

    One of the most effective arguments against the ERA was that it would require absurdities like same sex marriage. So, what happens after the courts impose the ERA on a nation that rejected it? They start ruling that same sex marriage is constitutionally mandatory.

    The instant response was a spate of state and federal laws aimed at precluding this result, and state constitutional amendments, too. But the courts didn’t care, and ultimately imposed on the nation the very thing the states had refused to ratify the ERA to avoid, and which there existed a clear political consensus against.

    A federal amendment was proposed to stop this, but never got far, because while the advocates of this blatant change to the Constitution didn’t have remotely enough votes to achieve their own amendment, they did have enough votes to block an amendment stopping the change. Use of living constitutionalism had turned the amendment process on its head: Instead of requiring a super majority to change the Constitution, we now needed a supermajority to keep it unchanged.

    This was about as blatant an example of what I’m talking about as you could ask. People disagree about what’s terrible, and the folks who wanted a change to the Constitution, but who didn’t have the political clout to get it, enlisted the courts to impose it on a nation which didn’t want it.

    That’s your living constitutionalism, Prof: Nothing but a way of circumventing democracy to impose unwanted constitutional change on the nation.

  5. Joe says:

    “You just enlist the judiciary in what amounts to a conspiracy to pretend they mean something different.”

    No. You disagree with the analysis that shows how the basic meaning (“equal”) stays the same but the application changes with experience and changing experiences of the specific facts. There is no “conspiracy” and it is out in the open. And, it is not just “the judiciary,” because the general public etc. also agrees with the results here.

    Obergefell rested on sexual orientation. A few wanted it to rest on sex, but it did not. There is an overlap surely but sex and sexual orientation are not really exactly the same thing. So, e.g., various places have anti-discrimination laws with BOTH categories.

    The failure of an amendment can be a result of any number of things. For instance, some said the Bill of Rights was not necessary because Congress did not have certain powers it was allegedly necessary to avoid being applied anyhow. If the First Amendment wasn’t ratified for that reason, Brett’s logic would mean that the Supreme Court overturning the Alien and Sedition Acts on the ground Congress had no power to pass such laws was illegitimate. After all, part of the argument was an amendment (or two) was necessary first.

    The so-called “absurdities like same sex marriage” (it’s not absurd — Brett can find it so, but many religions, states, et. al. disagree) was a small part of the opposition of the ERA, which was largely based on the current understanding of the role of the sexes at the time. By not amending the Constitution, the more general “equal protection” provision provided more play in the joints for development, over a span of decades, of the law more slowly. As would avoiding some amendment that singles out a specific type of speech that is protected.

    Finally, since no conspiracy is going on, the application of the Constitution, using current understanding and knowledge, as the original creators repeatedly said was going to happen in ways they themselves would not expect, is not a circumvention of democracy. Any more than your support of the Supreme Court striking down locally passed laws that you deem unconstitutional.

  6. Joe says:

    The general approach Brett opposes is supported by the general public though they debate the details. Same sex marriage is more controversial, but the same logic would apply to criminal bans, something much fewer deem legitimate. Or, any number of things that back in the day would be seen as crazy. So, concern for democracy there is dubious. Where are these conspirator judges coming from, after all? The people elect presidents and senators and they keep on appointing and confirming them. On a small scale, the same applies to state judges. Brett yet again has every right to disagree but democratic appeals don’t sell very well.

    • The Federalisimo says:

      “The people elect presidents”

      I think you mean the electoral college elects the president, it’s not a popularity contest; just like the people don’t pass amendments, the states do. You could pass an amendment without California, New York, Illinois, Texas, or Florida voting in favor of it, but as long as 38 states supported it, it would be the law.

      The president doesn’t pick the justices, the justices pick the president, see Bush v. Gore.

      • Joe says:

        I know what I mean — most of the time.

        The people vote for electors, who even this time in nearly all cases followed the candidate they were bound to. It is a popularity contest in practice (and often by law) . “States” in practice don’t pass amendments either. Individuals in state legislatures (or conventions) do.

        The last bit is a bit blithe — e.g., Congress still had to count the votes there — but it doesn’t happen each time anyway.

  7. Ed says:

    I think the tendency about which express concern is real. But what follows? We would say much the same about when anyone is asked to explain what they meant by their prior statement; they are even less prone to offer an interpretation that reflects badly on them. Probably that means we shouldn’t regard them as authoritative about their prior statements, any more than we should rely on interpretations by originalists. I don’t think it follows that we should disregard prior statements, or that which originalists seek to determine — just trust others.

  8. Gerard Magliocca says:

    I kind of think Ross Douhat is right that we will not see another constitutional amendment in our lifetime.

    • Brett Bellmore says:

      I think we will see not just one, but a great many, if we have a constitutional convention, and none otherwise.

      The basic issue here is that living Constitutionalism gives Congress, (But not the states or people!) a very easy way of ‘amending’ the Constitution. Any ‘amendment’ they really want they can get by selecting the right judges, and without any risk the states might not ratify.

      So, why should they ever bother with formal amendments?

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