Originalism's misplaced fidelity: "original" meaning is not objective.

AuthorSmith, Tara
  1. INTRODUCTION

    Although Originalism has been systematically critiqued and repudiated by a number of scholars in law and philosophy, it has proven an impressively resilient doctrine. It is not hard to understand why. Its basic thesis--that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted it--can seem to embody the very essence of fair play, expressing as straightforward an obligation as the obligation to keep one's word or to abide by the rules of a game one has entered into. Regardless of what various alternative theories of proper interpretive method may propose, it is difficult to stray far from the pure, fair-minded appeal of the Originalist brand of respect for the rule of law. Don't we have to be faithful to what the lawmakers were doing? To what they took themselves to be doing? Surely it would be wrong to set that aside and declare: "different times, different rules," without formally changing those rules through the prescribed procedures. To claim to be following written laws while departing from what the writers meant by them would actually eviscerate those laws, "respecting" the law in name only. Originalism insists that the rule of law requires fidelity on the part of those who apply the law to those who make the law. "Unlike the democratic visionaries, the rights theorists, or the natural lawyers," Keith Whittington has observed, "originalists do not look past the Constitution to a larger and prior moral commitment." (1) Rather, Originalism is faithful to the Constitution itself, however commendable or flawed it may be. To the extent that we sincerely seek to interpret the law, Originalists contend, their methodology is the only means of doing so. (2)

    In this paper, I wish to examine two recently articulated and very persuasive defenses of a particular, resurgent form of Originalism. The reasons for doing so require a little more background.

  2. THREE SCHOOLS OF ORIGINALISM

    Originalism, again, is the thesis that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted it. (3) Joseph Story, in his widely read Commentaries on the Constitution, provides a clear statement of this principle: "the first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties." (4) A few decades later, we see Originalism at work in Justice Roger B. Taney's majority opinion in Dred Scott v Sandford, explaining that the Constitution "speaks not only with the same words, but with the same meaning and intent with which it spoke when it came from the hands of the framers, and was voted on and adopted by the people of the United States." Correlatively, Taney held that the "duty of the court" is to interpret the Constitution "as we find it, according to its true intent and meaning when it was adopted." (5)

    In more recent years, scholars have heeded the difference between reliance on the original intent behind certain language and reliance on the language itself. (6) What a person intends and what he actually says or writes are not always the same thing. Intentions can be much more difficult to ascertain and can vary considerably among different lawmakers. For these reasons, most Originalists have moved away from the Original Intent view, agreeing with Antonin Scalia that "men may intend what they will; but it is only the laws that they enact that bind us." (7)

    While Scalia offers many valid criticisms of the Original Intent school, his own "Textualism," which contends that laws' meanings are contained within the words alone, rests upon serious misunderstandings of the nature of meaning. While these have been devastatingly exposed elsewhere, what is of immediate relevance is that the emphatic failings of Scalia's theory make it tempting to conclude that since even this better form of Originalism ultimately fails, Originalism itself must be a dead letter. (8) The recent work of Whittington and Randy Barnett, however, makes clear that such a conclusion would be premature. Whittington specifically criticizes Scalia's naive portrait of language and recognizes that language does not carry meaning apart from intentions, as Scalia maintains. "Written words cannot speak for themselves," Whittington observes. A text cannot be taken as autonomous; we cannot dismiss intent entirely. (9)

    Moreover, a third form of Originalism, the "Original Meaning" or "Public Understanding" school, has recently been gaining a striking measure of academic respect, increasingly embraced not only by those one might expect (conservatives frustrated by the failure of its Intent and Textualist cousins), but by figures from across the ideological spectrum. A number of liberal constitutional theorists in the past several years have, on essentially Originalist grounds, come to interpret the Second Amendment as protecting an individual's right to bear arms rather than a state's collective right to arm militias. (Sandy Levinson, Laurence Tribe, and Akhil Amar are among these figures.) (10) John O. McGinnis and Michael B. Rappaport have argued that Originalism is the most sensible interpretive method for legal Pragmatism to endorse. (11) Jack Balkin has recently embraced the core Originalist premise in a piece arguing that the right to abortion is based on the original meaning of the constitutional text. (12) Balkin avers that "constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text" (13) and he observes that "many different scholars from different political perspectives have embraced the idea that constitutional interpretation should be grounded in the text's original meaning." (14)

    This Public Understanding school is generally regarded as a much more viable form of Originalism, largely on the grounds that it offers an objective framework for understanding what the law is. (15) In the words of Barnett, Public Understanding Originalism represents an advance "from subjective to objective meaning." (16) It "seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment." (17) Those words should be interpreted as a normal speaker of the language would have understood them at that time. (18) Whittington agrees that "the critical originalist directive is that the Constitution should be interpreted according to the understanding made public at the time of the drafting and ratification." (19) What unites all forms of Originalism is deference to history: It is facts about what was intended, written, or understood in the past that decide the meaning of laws that contemporary judges are to apply. Whereas the Original Intent and Textualist forms of Originalism do not deliver objective meaning, the distinctive strength of Public Understanding Originalism, allegedly, is that it does. (20)

    In this paper, I shall address the two strongest defenses of Public Understanding Originalism that I am aware of. The first, embraced by Whittington, is what I will call the Popular Sovereignty Argument and the second, embraced by Barnett, as well, I will call the Written Constitution Argument. I hope to show that these efforts, while apparently going a further distance toward establishing Originalism than others, nonetheless fail to vindicate it. Indeed, we shall find that on analysis, the Public Understanding school proves every bit as subjectivist as the "living constitution" theories that all Originalists wish to oppose. (21) My thesis, in essence, is that to the extent that Originalism does reflect an undeniable truth, that truth concerns a comparatively innocuous claim. Its fidelity is misplaced insofar as it is directed at "original" meaning rather than at the law's objective meaning. The latter is what the rule of law truly demands. Indeed, as a result of what Public Understanding Originalism takes the original meaning of laws to be, it actually fails to provide an account of how judges are to apply the law--the very thing that it purports to be a theory of. That is, while Originalism plainly advocates a goal for legal interpretation ("stick to the original meaning of the Constitution"), it does not offer a method for how to achieve that goal. Yet the central dispute over adjudication concerns how judges are to interpret and apply the law. Despite its admirable aspirations, in short, Originalism does not deliver the objective application of law that the rule of law demands. (22)

    I shall begin by presenting the two arguments for Public Understanding Originalism and then proceed to critique each, in turn. We will see how Originalism treats words' original meaning in a way which is at odds with words' objective meaning. (23)

  3. THE POPULAR SOVEREIGNTY DEFENSE OF ORIGINALISM

    The first argument grounds Originalism in the roots of popular sovereignty. (This is not a novel argument so much as one that is revitalized in Whittington's presentation, which rests on a more sophisticated understanding of language than is found in many earlier advocates who offered broadly similar arguments.) (24) This argument contends that the propriety of Originalism lies in its necessity to preserve the democratic character of our government. More specifically, its propriety lies in the fact that the source of our law's authority rests in the consent of the governed--in the fact that the people agreed to the law. People possess the "right to be governed only in accord with their own consent," Whittington affirms. (25) This is why we seek to maintain a government of and by the people.

    When we confront the question of legal interpretation, Originalism, Whittington argues, is the method that is uniquely consonant with this. For Originalism is the only means of applying the law that is faithful to what the people, in...

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