How Original

Is Originalism the proper approach to constitutional interpretation? Here is an argument that it is not, because it is too focused on original application, and not focused enough on a broad understanding of the principles embedded in the Constitution.

In discussing same-sex marriage over at Tim Kowal’s blog, both he and Tom Van Dyke made arguments in favor of originalism as the proper mode of constitutional interpretation, and Van Dyke went so far as to suggest that

once you untether the Constitution from any relation to how it was understood by its ratifiers, there are no limits to your power.

Well, let’s dig into this claim a little bit. Certainly if you untether government power from the Constitution you untether it from the leash that constrains its power, but that’s not what Mr. Van Dyke is arguing. He’s saying if you unleash it from how it was understood by its ratifiers there are no limits to its power. This is wrong, as I will demonstrate below.

To begin, it’s simply factually incorrect. It’s an absolute and unequivocal claim, and such claims can be disproven by a single counterfactual. In this case, the single counterfactual is textualism. Justice Scalia bounces back and forth a bit between originalism and textualism, sometimes claiming priority for one, and sometimes the other. This gives the impression that there is some necessary linkage between the two, but that is incorrect. Textualism can focus strictly on the text–the words that actually exist–without reference to the Founders’ understanding of them. Just simply, “what does this word mean now.” And that would keep the power of government limited to the constitutional text. Note that I am not arguing for this method of interpretation, but it would keep government power tied to the text of the Constitution, yet without regard for the Framers’ understanding. Or one could take the a more radical approach, ignoring both the text and the Framers completely, and simply arguing that government has no power beyond national defense. No power to coin money, no power to regulate weights and measures and interstate commerce, or to lay duties and imposts, or to borrow money, or to make treaties, or any of the other explicit powers in Article I section 8. Ridiculous, yes, but it would obviously not loose the restraints on government power.

Of course the claim is misleading anyway, in its assumption that non-originalists want to “untether our understanding of the Constitution from any relation to how it was understood by its ratifiers” (emphasis added). Of course nobody is arguing for this. Mr. Van Dyke is repeating a popular conservative talking point, apparently without recognizing that it is false. At least I hope he wasn’t intentionally passing on a false argument. I think most modes of interpretation take account of the Framers’ intentions at least to some extent. Certainly not as much as true originalists would like, and it’s entirely legitimate for originalists to think they don’t take enough account of the Framers’ intentions. But it’s false to suggest they don’t take “any” account of the Framer’s intentions.

The reasons they take some account are two-fold. First, every method of interpretation takes serious account of the text, and unlike my ridiculous example above, every judge knows that the starting point for understanding what the Framers wrote is to understand what the Framers were trying to accomplish. Second, there is a real process of enculturation or socialization that occurs as judges go through law school, into the world of legal practice, and then into the world of judicial interpretation. I find this socialization too narrow when I talk to lawyers about the Constitution–they tend to view it narrowly as a legal document, whereas I, as a political scientist, see it as also–and more importantly in some ways–as a political document, as not just law but the source of law. (I am quite convinced that I’m right, but then I’ve also been socialized into the political science view of the Constitution.) A part of this socialization includes familiarization with the Federalist Papers and a general understanding that the Framers were trying to accomplish something, some set of goals, when they drafted the Constitution.

So this conservative meme that some large number of law professors and judges give no thought to the intent of the Founders is simply false.

There are also criticisms that can be made directly of originalism as a mode of constitutional interpretation. Mr. Van Dyke refers to the understanding of the ratifiers. But which ratifiers? The claim implicitly assume the ratifiers all had the same specific understanding of how the constitutional principle should be applied. That’s sheer nonsense in many cases. That’s why I noted, in a separate reply to Mr. Kowal, that originalism was considered laughable by trained historians.

But surely we can all agree that in 1868, the ratifiers of the 14th Amendment would have overwhelmingly, perhaps unanimously, agreed that it did not confer a right to same-sex marriage. Here is were Mr. Van Dyke’s argument about originalism as the best constraint on government power falls apart, because granting government the power to discriminate against homosexuals–based on an accurate understanding of the original understanding of the 14th Amendment–is actually giving it more power than it would be allowed by any method that found that the 14th protected the right to same-sex marriage. In reference to another significant 14th Amendment case, Brown v. Board of Education, Jack Balkin explains that originalism doesn’t necessarily lead to a ban on segregation, because the same Congress that voted for the 14th Amendment maintained segregated schools in Washington, D.C., and continued to appropriate money for that segregated school system until the 1954 decision in Bolling v. Sharpe.

The reason originalism is not the best path to constraining power is because it focuses on the wrong original thing: it focuses on original application, rather than on original principles. And it is frequently the case that humans have a hard time living up to their principles, that what we espouse as an ideal we don’t always manage to actually apply in our own lives.

I learned this lesson in grad school, in a grueling American politics seminar,* where for several weeks the topic of discussion was Louis Hartz’s The Liberal Tradition in America (perhaps the most audacious book ever written). Some students objected to liberalism (the classical variety) on the grounds that it was “exclusionary,” that they thought they were talking about all humanity, but in fact there definition was based on white western males, and that such exclusion of others was necessary to liberalism. I thought the first point was legitimate–Locke, Hume, etc., were products of their time after all–but that the second point was rather stupid. Because no matter how poorly liberals of the 18th and 19th century applied their ideals, the principles of liberalism had a universality that made it impossible, in the long run, for them to be restricted to white western males, and so–over time–the concept of a basic general equality among humans inevitably led to that circle of humanity being extended past just white men to include women and men of all ethnicities. And there’s every reason to think that if we could resurrect Locke, Hume, etc., today, they’d say, “Yes, that’s right. We couldn’t quite see it at the time, but that is what our principles mean.

The same is true of the concept of popular sovereignty. When the U.S. was founded, popular sovereignty was the watchword, but it primarily meant white propertied males. But the application fell short of the principle, and over time the fullness of the principle asserted itself as one by one the limits on popular sovereignty fell away–first by allowing universal white male suffrage (ending property restrictions), then by constitutionally requiring universal male suffrage (although it didn’t actually get applied in all states), then by allowing universal suffrage by including women, then by actively applying it for African-American women and men, and then by including everyone of draftable age.

It’s just damned hard to set up a standard of universal humanity, then say, “but not you,” or a principle of popular sovereignty, “except for you.” You can manage these applications that fall short of the principle’s fulfillment temporarily, but it’s hard to do it long term.

But originalism would normally limit itself to understanding the intent of the Framers by how they applied it, not by the full meaning of the principle they espoused. In that way, originalism actually grants more power to the government than a broader approach that looks to the ideal that is inherent in the principle the Framers promulgated.

And to bring this back to equal protection and same-sex marriage, it is, ironically, the person who claims to be arguing for a an approach that more satisfactorily limits government power who is actually arguing in favor of more government power. And that argument for more power is a logical consequence of originalism.

By contrast, I am using a different method of interpretation, one that takes the ideas and ideals of the Framers seriously, but that is not originalism per se, and as a logical consequence of it am arguing for less government power.

The overwhelming irony here is that both Mr. Kowal and Mr. Van Dyke believe that allowing the people and their representatives to make the decisions about applications of these principles will result in a more constrained government power.

Mr. Van Dyke puts the issue this way:

But sometimes, where the Constitution is silent, it’s silent. The question is whether it’s to be the legislative process or jurisprudence that fills in the gaps.

I would argue the Constitution suggests we give the nod to the legislature, as the body closest to the consent of the governed, and as a duly and legally constituted body with clearly defined duties and limits, unlike the academic world of legal theory and social science.**

They seem to not recognize Congress’s tendency and incentives to go well beyond its “clearly defined duties and limits” or the fact that the primary enforcer of those “duties and limits” has been the Court, not the public. It was Congress that enacted the legislative veto, the Communications Decency Act, the unconstitutional elements of the Patriot Act, the unconstitutional parts of the Religious Freedom Restoration Act, etc.

It also seems to ignore the fact that the public has no great tendency to abide by those “duties and limits.” I refer my debate opponents once more to James Madison’s argument in Federalist 10 (with which any advocate of original intent should be intimately familiar):

A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property;

Of course we do not have a true democracy in the sense of which Madison is speaking, but because Mr. Kowal and Mr. Van Dyke are advocating that the majority rule, the quote is perfectly on point, because Madison is expressly arguing that the public is not a source of governmental constraint. But in contradiction to Madison, Mr. Kowan and Mr. Van Dyke asks us to trust the people to keep government to its constitutional limits.

There is but one governmental institution that lacks an incentive to expand government power, and that is the judiciary. This does not make the judiciary perfect, nor does it mean the judiciary cannot error, cannot overstep its bounds and declare unconstitutional some act of the people or their representatives that clearly is. Nor does it mean they will not sometimes allow an act that clearly violates constitutional bounds. But when it comes to constraining the expansion of government power, historically the Court has proved to be our only hope.

And Mr. Kowal and Mr. Van Dyke follow the general approach of critics of the courts, who ignore the Court’s reactive position. The courts cannot take a case unless some person–almost invariably some citizen–comes to them. Every case in which the courts strike down some act of the public or its representatives is a case brought by a member of that public who is seeking to limit the exercise of government power.

In other words, each of these cases is a demonstration of Madison’s Federalist 10, because each is a case of a minority pleading that the majority has overstepped its “duties and limits.” That’s an uncomfortable truth that the critics of the Court don’t want to deal with. But it’s a truth that no originalist can justly ignore.


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[Note: Although I have previously banned Mr. Van Dyke from commenting on my posts, it would be beyond the pale to say he could not comment on one where I am responding specifically to his arguments. So Mr. Van Dyke is welcome to comment on this post.]
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*The Marxism and post-modernism in that class were so dominant that one upper-level grad student who sat in on it for a while quipped that if the state legislature knew what was going on in that classroom, they’d shut down the whole school. It was, however, the only class I ever had where that tone dominated.

**How odd is it that Mr. Van Dyke condemns the “academic world of legal theory” while engaged in intellectual advocacy of a particular legal theory, and in spite of the fact that originalism, while not popular in the academy, is as much part of the academic world as any other legal theory (see here, for example. Mr. Van Dyke also seems to think that legislators never base any of their decisions on the social sciences, which shows a remarkably naive vision of how they work (who does he think speaks at all those hearings anyway?). Of course Mr. Van Dyke is intelligent enough to actually know these things, but he hopes to score cheap rhetorical points using popular buzzwords. And the tactic is often effective–if vulgarly dishonest. After all, look how few words it took him to get those buzzwords into the discussion, and look how many words it takes to refute them.

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About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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21 Responses to How Original

  1. tom van dyke says:

    Mr. Kowan and Mr. Van Dyke asks us to trust the people to keep government to its constitutional limits.

    Not atall. If the people (i.e., the legislature[s]) did, we wouldn’t need a judicial branch.

    Per textualism, “What does this word mean now” is also problematic: it is bad faith to unilaterally change the meaning of the terms of any contract or agreement.

    And no, social science is usable by legislatures, in fact that’s the proper role for social science in the polity, in the legislative process. It’s giving social science the role of incontrovertible authority by the judiciary that is problematic.

    My main argument is acknowledged but again elided here: where the Constitution is silent, either the legislature or the judiciary will have to fill in that gap. I prefer the legislature, because that’s its job.

    I appreciate the leave to reply; however, adult discussion is impossible with an uncooperative interlocutor. I simply am not saying what you attribute to me.

  2. D.A. Ridgely says:

    Among legal scholars, originalism embraces both intentionalism and textualism. The first variety asserts that the words, phrases, sentences, etc. comprising the Constitution should be construed as the drafters or signers intended the language to be understood, the second claims we should construe the text as it would have been generally understood at the time of its enactment. The latter attempts to address the problematic subjectivism of the former just as the objective theory of contract formation attempts to address the hoary but impossible “meeting of the minds” subjective theory.

    One of these days I’ll get around to finishing and posting an essay I’ve entitled “Two Dogmas of Originalism” (apologies to Quine), arguing that both rely on a simplistic and deeply flawed understanding of language and that, as a result, neither variety is a practicable, let alone possible method of constraining contemporary judicial interpretation.

    For now, however, I merely wanted to note that textualism is not typically understood by legal theorists as an alternative to originalism but as an alternative to originalist intentionalism.

  3. James Hanley says:

    It’s giving social science the role of incontrovertible authority by the judiciary that is problematic.

    Fortunately, that’s never happened. Read the Perry decision, for example. The social science of the plaintiffs won because there was literally no actual evidence of any sort presented by the defendants. When it’s “social scientific evidence vs. no evidence,” it’s equivalent to “evidence vs. no evidence.” You appear to be arguing that “no evidence” should win.

    My main argument is acknowledged but again elided here: where the Constitution is silent, either the legislature or the judiciary will have to fill in that gap. I prefer the legislature, because that’s its job.

    You claim I’m misrepresenting your argument, but in fact I responded to that argument, bot here and at Mr. Kowal’s blog. My response is, “that puts too much trust in the people and their representatives.” You may disagree, but I certainly haven’t misrepresented the point.

  4. Mark Boggs says:

    After reading the comments here and over at Notes from Babel, I’m honestly astounded at how deep folks will dig into minutiae to deny an equal right. It’s like a fashion show for prejudice.

  5. Heidegger says:

    Professor Hanley, is not slavery racial discrimination at its most extreme?

    And you’re very quick to brand your dissenters as liars. There is this exchange we had a few days ago:

    Me–” You have already expressed your opinion that there is no room for debate on this subject(SSM)

    You–“That’s a lie. Why do you so regularly misstate others’ positions?”.

    I said you had already expressed your opinion that there is no debate on this subject based on our previous discussion. Here is what you said that led me to believe there is no debate:

    You, JH–“First, let me reiterate that when we’re talking about fundamental rights, the voters don’t get a say in it.”

    “The voters don’t get a say in it”. That’s just a stunning statement, coming from someone of your stature and someone who teaches Constitutional Law at a college level. I don’t think it takes a very large leap of logic to say you’ve pretty much shut the door on debate of this issue. You’ve already stated you’ve been studying this issue for 10+ years, and not once have you a come across a reasonable, persuasive argument in defense of marriage being defined as the union of a man and a woman.

    Other than your opinion, has it ever been legally determined that same sex marriage is a “fundamental right”

  6. James Hanley says:

    Heidegger,

    The Supreme Court has basically said voters don’t get a say when it comes to fundamental rights. If you think it’s a stunning statement, maybe you should take it up with them. And if you think a statement is shocking coming from someone who’s studied the subject, maybe instead of thinking it’s stunning that an educated person would say it, you ought to think, “hmm, a person educated in the subject said that…maybe, just maybe, he knows more about it than I do,” But I’ve noticed that you conservatives like to think that you understand the Constitution better without any special study than do those who’ve actually put in the effort to study it.

    But to state that the people don’t get a vote on fundamental rights is not saying people can’t debate–there’s a First Amendment right to that–it’s just saying they can’t vote away fundamental rights. And of course we can debate what rights are fundamental, and what standards we should use for determining that, etc. Lots of room for continued debate.

    And the fact that I’ve never heard a good argument against same-sex marriage…how does that equate to shutting down debate? Am I supposed to keep silent and pretend I have heard a good argument, so you feel better about continuing to debate it? For pete’s sake, whatever I think of the stupidity of certain arguments, it obviously doesn’t keep people from making them, nor would I try to ban them from making them. I’m just playing my side in the debate, trying to persuade them to voluntarily stop making stupid arguments.

    But you’re right that I shouldn’t have called you a liar. A liar is someone who knows their false statements are false. I don’t think you have any idea when you’re making false statements.

    As to the slavery/racial discrimination comment. What are you trying to say? I guess I would respond that genocide is actually a more extreme form of racial discrimination than slavery, but I doubt that gets to your point. If you’re referring to my comment at Mr. Kowal’s blog, I was pointing out that a century of racial discrimination post-slavery posed no threat to the perpetuation of the republic. If you’re not referring to that, then I have no idea what your point is.

  7. Charles Wolverton says:

    Consistent with my understanding that neither original intent nor original ratifier understanding is dominant, in a 2009 paper titled “Incorporation and Originalist Theory”, Larry Solum states:

    As to what fixes original meaning, … in the contemporary period, early originalist theory emphasized the “original intentions of the framers.” Later originalists emphasized the “original understandings of the ratifiers,” and then the “original public meaning” of the constitutional text. Although the dominant strain of contemporary
    originalism emphasizes “public meaning,” disagreement among originalists
    persist—with [some scholars] continuing to adhere to an intentionalist version of
    originalism. The gap between internationalism [sic – he means “intentionalist”] and public meaning may actually be quite narrow: because the relevant author of a constitution (i.e., the framers or ratifiers) is likely to have semantic intentions that
    point to public meanings, the conventional semantic meaning of the constitution and the intended meaning are likely to converge in most or even almost all cases.

    I might add that there appears to be considerable on-going debate among legal scholars who answer to the term “originalist” about precisely what that label implies. Any suggestion that if one employs “originalist” methodology they will reach any particular result, never mind some result preordained to best protect our liberties, seems patently ridiculous.

    Also, someone better versed in US history than I please correct me if I’m wrong, but my understanding is that the describing the 14th A as an “agreement with the people” might be found amusing by those familiar with the makeup of Congress at the time of ratification – depending on what one means by “the people”.

  8. OFT says:

    James Madison has promulgated the ratifiers’ intent over the drafters’ intent, and with good reason. The Constitution became Law when it was ratified, not drafted. Perhaps the originalist label should come from the ratifiers’ public intentions.

  9. James Hanley says:

    James Madison has promulgated the ratifiers’ intent over the drafters’ intent,

    Source? It’s an interesting claim, and it’s only right that you provide a citation for it so others can check it out.

  10. Tim Kowal says:

    I find this socialization too narrow when I talk to lawyers about the Constitution–they tend to view it narrowly as a legal document, whereas I, as a political scientist, see it as also–and more importantly in some ways–as a political document, as not just law but the source of law.

    True, a constitution is not a statute. But whatever the differences are, we’d have to stop short of concluding the constitution just gives license to the courts to develop whatever laws they see fit, no?

    There are also criticisms that can be made directly of originalism as a mode of constitutional interpretation. Mr. Van Dyke refers to the understanding of the ratifiers. But which ratifiers? The claim implicitly assume the ratifiers all had the same specific understanding of how the constitutional principle should be applied. That’s sheer nonsense in many cases. That’s why I noted, in a separate reply to Mr. Kowal, that originalism was considered laughable by trained historians.

    For one thing, the correct analysis does not look narrowly at any one individual ratifying the law. The inquiry is into the public meaning of the words as enacted. This is most often discerned by looking to the understanding of individuals, of course, but it is not the same thing to say we ought to “choose” which ratifier to look to, as you suggest originalists do.

    Moreover, it is certainly true that the analysis will often be somewhat murky. But in my view, the inquiry will be far from futile or worthless, and accompanied with an analysis of other factors, such as the ones I proposed here, I submit it should be possible to come to an outcome that is faithful to the understanding and purposes of the law.

    As for Brown and Bolling, I’ve toyed with the thought that these may have been “judicial activism,” but perhaps justifiably or forgivably so. Alternatively, I’ve already said I think my above-linked proposal could be used to justify decisions like Brown.

    Finally, you noted that “originalism is not the best path to constraining power.” I would be interested to know what you’d put it up against.

  11. James Hanley says:

    True, a constitution is not a statute. But whatever the differences are, we’d have to stop short of concluding the constitution just gives license to the courts to develop whatever laws they see fit, no?

    Yes, but that’s a straw man. Nobody, but nobody, is arguing that the courts should be able to develop whatever laws they see fit. I know it’s quite popular among vulgar originalists (by which I mean the great mass of people who call themselves originalists without ever bothering to study constitutional law and theories of interpretation) to claim that any other method leads straight to allowing the court to just make up laws willy-nilly, but it’s just not true, and I’d like to think that you have enough regard for the truth to stop playing around with that falsehood.

    The inquiry is into the public meaning of the words as enacted. This is most often discerned by looking to the understanding of individuals, of course, but it is not the same thing to say we ought to “choose” which ratifier to look to, as you suggest originalists do

    That’s what scholarly critics of Scalia essentially say he does. If we have to pick some individuals to determine the public meaning, which individuals do we choose? How likely is anyone–you, me, Scalia, or anyone else–to latch onto the words of someone whose understandings don’t match ours, or whose implications make us uncomfortable? And since we can usually find someone to represent that public meaning whose understandings do match ours, the temptation to gravitate toward those is overwhelming. Because there was disagreement even back then, the idea of an identifiable “public meaning” is a bit of a convenient mythology. If anyone looks carefully at the debates of that time period, they were fully as disputatious as we are today. Any particular “public” meaning one might think they see inevitably excludes the meaning held by some substantial portion of the public.

    Finally, you noted that “originalism is not the best path to constraining power.” I would be interested to know what you’d put it up against.

    As I noted before, an approach that takes a broad approach to understanding the principles of the Founders, rather than focusing on how those principles were applied in 1787.

    To stick to the SSM issue, your form of originalism would allow government the power to say “you over here may be married, but you over here may not.” My approach would not allow government that power.

    Another approach is one championed by Michael Heath, who often comments here, which is to say that the government simply may not infringe on our liberties unless the Constitution specifically authorizes it. That is also more limiting to government power than originalism is.

    I want to clarify that the fact that those methods would allow government less power than originalism does not make them right and originalism wrong. The validity of an interpretive method and the amount of power it would allow government are distinct and separate questions. But I do feel it necessary to point out that the claim I frequently hear that only originalism can constrain government power is simply not true. I grant that it’s easy to imagine interpretive methods that allow more power to government than does originalism–I’m not saying it’s the worst in that regards, by any means, but it’s definitely not the best, as its adherents like to claim.

  12. Mark Boggs says:

    Yeah, I think this idea that “activist” judges are milling about with nothing better to do than think up new laws to fuel the fires of the culture wars is funny. Don’t courts only get to adjudicate on matters brought before them, often by the people…like “of the people, by the people” people?

    And there is a tremendous irony on the part of folks who, on one hand want to tell you about how much they love freedom and liberty and cherish these ideals, while on the other hand trying to find every manner possible to restrict the freedoms of others because of their moral qualms with those freedoms.

  13. James K says:

    Another approach is one championed by Michael Heath, who often comments here, which is to say that the government simply may not infringe on our liberties unless the Constitution specifically authorizes it. That is also more limiting to government power than originalism is.

    This approach also has the potential of reading the 9th and 10th amendments back into your Constitution, which would be nice.

  14. James Hanley says:

    Mark Boggs–No, those aren’t “of the people, by the people,” people trying to ensure the protection of those constitutional rights. They’re the perverts, criminals, lefties and other un-American types with no respect for the majority faction will of the people.

    James K–I think that’s part of Michael’s point, particularly about the 9th amendment. I find it particularly odd that “originalists” so often ignore the 9th.

  15. Murali says:

    I’ve seen a lot of people talk about all sorts interpretive schemes. Mr Hanley seems to argue that we should interpret the constitution in light of the principles they embody/principles the founders held, while some others talk about original public meaning as viewed by ratifiers etc.

    It seems to me that everyine is curiously silent on using the most recent application. It is at least straightforward enough. Looking at previous cases a lawyer (and a judge for that matter) can quickly tease out the ways in which a particular term was used and ways in which it wasnt used. And because the cases we are looking at are the most recent relevant ones, the likelihood of having arcane interpretations lost to the ravages of time diminishes. Rather, you have arcane interpretations that are entirely current and therefore entirely within the grasp of any decent lawyer who can be bothered to do his research.

    At the least, most recent application (I will call this MRA) should appeal to burkeans. While it does not guarantee that the law today is the law 50 let alone 100 years from now, it guarantees (at least inso far as the method of interpretation is followed faithfully) that the change will be gradual, organic and to a certain extent, small-c conservative (it is a method that seems designed to rule out radical changes in interpretation).

    The upshot of MRA is that it basically says “this is what the law was last week, and absent any overriding statutes, so that is what it will be this week”. Uniformity of law across time which is generally considered a virtue seems to have been preserved. Those with Hayekian sympathies should also like this as it is all about organic change from within rather than imposed from without.

    Of course another upshot is that the law does eventually change. We are not so much limited by the dead hand of the past as we would be under originalism.

    An additional note is that it is not clear that we should be judging the merits of an interpretive method based on the kinds of conlusioons we have to make about our laws. Just beacuse an interpretive method gives far too much power to the judiciary (if it indeed does so) or results in the laws enforcing or permitting massive injustice does not mean that the interpretive method is wrong. There is such a thing as an unjust law, and there is a genuine dilemma about what judges are to do in the face of unjust laws.

  16. James Hanley says:

    Murali,

    If I understand correctly what you’re arguing, I’d say that to a large extent the Court actually does this, within the scope of other interpretive schemes. That’s more or less the effect of their reliance on precedence, of looking to past decisions to see how they’ve applied the clauses of the Constitution, and normally giving more reliance on those that are most recent. Indeed that may be the dominant approach used, and often used in the service of other interpretive schemes, trying to justify them by pointing to how clauses have previously been applied by the Court.

  17. Murali says:

    If that is the case, what is all this talk about originalism etc? Are originalists etc disputing the current interpretive method?

  18. James Hanley says:

    Murali,

    Originalists don’t dispute the use of precedent. Briefly, it comes down to how one interprets precedent, and which precedent one chooses to rely on when there are conflicting precedents from which to choose. And there’s always the question of whether to use a narrow and restrictive reading of that precedent or to use a broader reading of it.

    For example, in the 1990s the Court had to decide whether driving by houses with a heat-detector (to detect extra warm houses, likely to have lots of lamps shining on marijuana plants) was an unconstitutional search or not. One line of precedents, that would allow this as a legal search, said the police could fly over property to see stuff they wouldn’t be able to from the ground, could use telescopes, etc. Another precedent held that a listening device on a phone booth was an illegal search. Both involve the use of technology, but one is treated as legitimate and one is not.

    (And just to add to the confusion, the opinion of the Court ruling it an unconstitutional search was written by the conservative Scalia, while the dissent that argued the search was constitutionally allowed was written by the much more liberal Justice Stevens. See <a href="http://www.law.cornell.edu/supct/html/99-8508.ZO.html&quot;<Kyllo v. United States.)

  19. Pingback: Do the Voters Get a Say in Fundamental Rights? | The One Best Way

  20. OFT says:

    As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.

    -James Madison letter to Thomas Ritchie, Montpelr. Sepr. 15 1821
    http://en.wikisource.org/wiki/James_Madison_letter_to_Thomas_Ritchie

  21. James Hanley says:

    Thank you. Don’t you feel better having provided evidence for your claim?

    (Of course we run into the problem of whether Madison’s claim of how we ought to interpret the Constitution has any binding power or special authority, but we’ll save that for another day.)

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