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.
[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.]
*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.