September 20, 2007

The Trinity Of Originalism

Conservatives often argue that they support originalism in judicial temperament. That term has fallen a little out of use in favor of judicial modesty, as expressed by Chief Justice John Roberts during his confirmation hearing. Others use "strict construction" instead, which, strictly speaking, is not synonymous, but prefers a strict textual reading rather than flexible application.

However, David Schraub at The Debate Link has delved further into originalism to discover three distinct lines of thought within that philosophy -- and some aspects in each contradict the others:

Nonetheless, some folk do at least purport to assign originalism some special interpretative value. Unfortunately, many of them seem to have but a weak grasp of what originalism actually entails. For one, they often blend "originalism" and "textualism", when the two are actually very different things and often radically opposed to each other. But in this post specifically, I'm going to try and deal with the fact that the unitary category "originalism" actually is splintered into at least three different interpretative approaches, ones that have some commonalities but have important differences as well. The three are "original intent", "original meaning", and "original understanding", and at the very least someone who claims to be an "originalist" needs to clarify which of the three schools they are an adherent to.

Schraub does a good job in explaining each of the three categories in lay language, and it's well worth a read. I found myself generally rejecting a complete agreement with any of the three tracks he describes, although I probably had more sympathy with original understanding than the other two. After all, when we look at the language used in the Constitution, we would hope to follow what the founders understood they had created, rather than an interpretation from an entirely different context.

However, the entire worthy exercise that Schraub creates gave me even more appreciation for a strict textual reading of the Constitution, as well as laws in general. Trying to determine the intent of a law leads automatically to interpretation. As Schraub points out, once one acknowledges a need to interpret law rather than rely on the obvious textual meaning, no matter how limiting that might be, then there is no longer any nonpartisan reality to law or legal philosophy. One drifts from one philosophy to another depending on the issue and the allies one has on each.

Strict construction rejects interpretation. If the Constitution doesn't directly address an issue, then the legislatures at the state and federal levels have to address the issue instead. If Congress (as an example) writes a law poorly, it's not up to the courts to rewrite it. The FISA court rejection of the warrantless access of the NSA to international calls passing through American switches is a good, if uncomfortable, case in point; the court did the right thing by forcing Congress to take responsibility for the dated obstacle their law created. If courts did that on a regular basis, it would force politicians to set policy through consensus rather than having it imposed by fiat by unelected and unaccountable judges and justices.

I'd like to hear from David whether he supports any of the originalist philosophies, and why or why not, in a follow-up post.


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Comments (11)

Posted by Carol Herman | September 20, 2007 6:33 PM

Here's your "term" ... It's a STICKY WICKET

Sandra Day O'Connor, a decent politico at heart; saw the problem. Looming large. Americans, in general, do not like to hand the police more leeway; over the behaviors adults do. Especially when those behaviors run counter to church teachings.


Because the church should stick to its own business.

You can fake the news as much as you like. You can have people who don't have kids, (like Ann Coulter and Matt Drudge), holding their noses at abortion. But for everyone else; especially women; sometimes the PRIVACY of what they discuss with their doctors, belongs there. Not putting either the doctor or the patient in jail, is actually what keeps most people the most comfortable.

While sadly enough, the republicans can't take advantage of what is obviously a drop off in Bonkey voters. Today? People prefer to be called other things; some even prefer not to vote. But the two parties lag behind in being "popular."

Has this hurt the GOP? Well, probably not as much as the lust for pork. And, the acceptance of men who'd much prefer showing up to work, wearing prom dresses.

Sure. You can keep selling the GOP "piece of goods." As if Newt Gingrich didn't fail when he held the majority in da' House. (Not that pelosi's rag looks any better. But no one is following her!)

And, now you get Newt with his "solutions." STOP IT! Government's the PROBLEM. Forget getting to solutions with them. Just get them out of the business that's none of their business. Or they'll just waste money exercising the police to go against easy targets.

Anyhoo. Sandra Day O'Connor, faced with ROE. Took a fork to it. Not bad. She did "tests." ANd, the law, instead of coming together, reasonably well; FRACTURED.

You want a name for the nine dudes and dudette, sitting on the supreme's; unable to do better than 5/4 decisions? But a clue. We'd have been better off if FDR, in fact, had padded those benches with more legal criminals.

Call me so unimpressed. So to become a lawyer, you need a wacky-academic credential. You think that helps? I think these schmoes just run a taxi meter; for as much as they can suck out of individuals.

Posted by coldwarrior415 | September 20, 2007 6:44 PM

Unless Larry Tribe gets on CQ, don't think we are going to have much commentary on par with David Schraub on this issue.

Wish more judges would lean toward the original intent view of the Constitution. Wish far less would advocate penumbras and the like.

A current matter for debate is the whole Presidential primary phenomenon. Not in the Constitution. Even the conventions of my younger days, and the smoke filled rooms, are not in the Constitution. We've gotten a long long way from the 12th Amendment on that one.

Posted by Lew | September 20, 2007 8:32 PM

An interesting dissection of a notion that illustrates perfectly why being a judge is probably one of the most challenging pursuits in all of human experience, especially if one cares about being a good one.

The larger problem that the author mentions several times, is the one that must first be solved before we get to the finely split hairs of "originalism". That is the disastrous tendency for jurists to decide precedent setting cases on the basis of prefered policy outcomes. This is the great trap of legal utilitarianism that has taken us from living under a Constitution "as written" to a Constitution "as interpreted". By this process, the U.S. Supreme Court has completely unfettered itself to arbitrarily decide whatever comes into its collective head and proclaim it to be the unchallengible "law of the land". In the reputed words of Justice Story, "The Constitution means what I say it means!"

By inverting the decision-making process into one where the result comes first and the rationale to support it comes after, we get to decisions like Griswold and Roe and a parade of the most grotesque distortions that the legal mind can conjure up. And everyone stands on the sidelines and applauds because the decision gets us something we want, while the method used to get there weakens the structure that defends our liberty, bit by precious bit.

And somewhere down the road, when the Courts have accumulated all the power to dazzle us with their cleverness to rationalize whatever we want, that same Court will be powerful enough to take everything we have - including our lives!

Indeed, if we don't solve that problem then all of our refined and highly nuanced understanding of the various elements of "Originalism" won't matter. We'll be living out our lives in an elegant set of velvet chains!

Posted by rabidfox | September 20, 2007 8:59 PM

Lew, it's not all that far away. The courts have already given away our rights to property ownership as well as under cut our right to bear arms.

Posted by coldwarrior415 | September 20, 2007 9:01 PM

Coldwarrior415 said:

"Unless Larry Tribe gets on CQ, don't think we are going to have much commentary on par with David Schraub on this issue"

I was wrong.

Lew, that was an excellent read.

Posted by Lew | September 20, 2007 9:29 PM

Thanks CW415, I appreciate the compliment.

I've been thinking about this and writing about it for a long, long time and I'm convinced that the U.S. Supreme Court is the single most dangerous institution in the entire modern world. Think about it, what other entity can you think of that has the unchallenged authority to decide the limits of its own powers - as well as the limits of the powers of every other institution within its purview? And that it has this ability by virtue of merely declaring that it is so!

What other institution in the modern world do you know of that has seized and held such dictatorial powers?

Rabidfox is dead right; we're already there. The velvet chains are already here - and the velvet is beginning to wear thin!

Posted by Cornellian | September 21, 2007 2:04 AM

"Most dangerous institution in the modern world?" Give me a break. The Supreme Court has no army, no police force, can't set its own budget and can't pick its own members. Unlike the President or Congress, it can't just decide to go off and deal with something because it's interesting. They only get to decide the cases that get to them, a process that takes years and can be short circuited in innumerable ways along the way. Dangerous to who?

Posted by Cornellian | September 21, 2007 2:11 AM

The problem (one of many) with the "strict constructionist" approach is that text very often doesn't tell you the answer. It's great in the abstract to say that the legislature has to deal with it but a judge often doesn't have that luxury.

Suppose person A in Nevada sues person B in Illinois in Nevada federal court for breach of contract. He can be in federal court because of diversity (parties from different states). Is the federal court free to decide the law as it wishes or is it required to follow Nevada state court cases on how breach of contract works? (note that this is a common law claim, there's no statute). The Constitution doesn't answer this question and you can't punt it to the legislature - you have to go with either a federal common law or a state common law and you can't force the legislature to take an interest in the subject while the parties are waiting for your decision.

Posted by Conrad | September 21, 2007 3:00 AM

I also think that the Senate has become a dangerous instrument that is not doing a good job in it's intended function. I would like to see the 17th amendment repealed.

About Originalism" and the "Constitution" I have always considered to "understand" the intent of the people that wrote it and the circumstances of their time. In my opinion "Commonlaw" was in the forefront of their minds and the writers were much versed in history. Look at their arguements in the "Federalist" during the constitutional convention?

People of today have a different mindset and many look to the government to take care of all their needs. Individualism and Orginality is being replaced by mindlessness and immediate gradification in copycat fads.

Our common law courts have been replaced by administrative courts that operate per the UCC.
Flesh & Blood Persons are looked at as fictions in the court rooms. I stay out of them.

Today's reality is so much different from the reality our original system was designed to handle.

My concern with the present is that people seem to really get comfortable thinking in a box. A law is passed and it is placed in stone in a persons mind.

I would really like to see our congress review the laws that have been passed to date and update them or discard them based on cause and effect of there intended purpose.

In my opinion the people of our nation that lived 200 + years ago wanted to do their own thinking plus they had space to do it.

In general,I do not think that the Supreme Court makes opinions based on the constitution. It makes opinions based on administrative law and the UCC. That is why the "Bill of Rights" is becoming more and more meaningless in the court house.

In my opinion I think in terms of interpritating the constitution, by "Original intent", or "Original meaning" is by the mind, but by "original understanding" or "Standingunder" can be done with the heart.

Posted by Lew | September 21, 2007 12:59 PM

Dangerous to whom? To you, Cornellian!

The fact is that the Court can do whatever it chooses to do, including assuming control over and operating local governmental bodies, and using whatever rationale it deems appropriate. The court can and has accepted cases just because they declared them "important" and they can render whole sections of the Constitution moot if they find it congenial to the times. They can decide that a certain action or policy is unconstitutional and then in the same ruling declare "a compelling interest" in continuing the policy. They can declare with Olympian certainty who is a human being and who isn't, who has any rights commanding the respect of others and they can conjure up rights out of thin air and utterly nullify others.

They can do all these things using any theory or rationale they choose. They don't have to follow any precedent they find cumbersome to their goals and they can use one doctrine in one case and an exact opposing doctrine in the next case. As long as they deliver enough of what we want in the way of results, nobody is going to do a thing about it.

And they do all of these things and many many more, by virtue of the fact that they've proclaimed their power to do it. John Marshall decided that he saw this power implied in the words of the Constitution and since Marbury vs Madison delivered a decision congenial to the political situation of the time, everybody just let it slide.

The point is that they can make any law they want for whatever reasons they find appealing and using whatever rationale they can sell - and there is no appeal. As long as we remain a society of law abiding citizens, we live our lives at their sufferance.

Posted by David Schraub | September 21, 2007 3:44 PM

Hey y'all. Thanks for the kind words. I probably won't do a specific follow-up post on my views of originalism, just because I've written quite a few posts elaborating on why I think its a deeply flawed philosophy and doesn't have the constraining effect its adherents say it does (see, e.g., my posts Original Sins, River on the Originalists, and of course The Chronicle of Madison's Tomb: Why "Roe Rage" Has Nothing To Do With Legal Theory).

However, I may write up one delving into the issues that were raised elsewhere in this post and comments: namely, how one can constrain the Supreme Court and specifically whether "strict textualism" does it. Two brief points can be made, which I'd expand upon in said post. The first is that there is no such thing as an absolutely objective, crystalline theory of judicial interpretation, because words have variable meanings and need to be applied to particular contexts. What on earth is "necessary and proper"? When is punishment "cruel"? The "Quest for Certainty" (to borrow from John Dewey) is a sucker's game -- you're not going to find it, and more often than not the search for it means lying to oneself. This, to be sure, might be a really scary prospect. But unfortunately, sometimes the world is a scary place, and it strikes me as more productive to try and figure out a way to live in the world we have, rather than pretend we're someplace completely different.

Second, drawing from the first, there are constraints on courts, albeit not metaphysical ones, that act to limit their actions. These so-called "soft constraints" are what prevent a "Judges Gone Wild" scenario where they lead us into the sort of tyrannical doom Lew predicts. There are many soft constraints, ranging from the fact that someone has to enforce the decisions (if the Supreme Court issues an opinion and nobody listens, does it make a sound?), to the fact that the Court can only hear so many decisions a year and must rely on lower courts and administrative agencies to actually implement them (diffusion of responsibility), to the oft-overlooked but obvious constraint of the counting game -- Supreme Court justices have to count to five. Any opinion that actually does anything must be premised on reasons persuasive to at least four other reasonably intelligent human beings, which itself weeds out totally foolish or idiosyncratic arguments. Focusing on these sorts of constraints shows how the judiciary is not actually "unleashed", and then we can proceed in how to make legal interpretations knowing that no matter what ends up happening, there remain constraints on just how far judges can stray out of orbit.

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