A century lost: the end of the originalism debate.

• Author: Segall, Eric J.

"I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor...."(1) INTRODUCTION Almost one hundred years ago, Professor Arthur W. Machen published an article in the Harvard Law Review called The Elasticity of the Constitution.(2) In this two-part article, which until now has been buried in history,(3) Professor Machen explored the relationship between a fixed Constitution and an ever-changing society and advanced three propositions about originalism and constitutional interpretation. First, judges must attempt to ascertain the original meaning of the Constitution whenever they exercise judicial review.(4) Second, a political practice determined by judges to be constitutional may later be invalidated by judges, and vice-versa, because the facts to which the original principles are applied are constantly changing.(5) Third, the Framers might originally have believed that the meaning of vague constitutional provisions, like the Eighth Amendment's ban on "cruel and unusual punishments," would not be fixed as of the date of enactment, but should be fleshed out by judges over time according to the values of succeeding generations.(6) Professor Machen's article demonstrates that he was what modern scholars refer to as a "sophisticated" originalist.(7) He believed the examination of original meaning is not the search for what the Framers specifically had in mind when they drafted the text, but rather for the general and reasonable meaning of the language they used.(8) Moreover, Professor Machen knew there would be many constitutional questions originalism cannot answer.(9) In such cases, judges must turn to other "rules of construction" and "positive law," which inevitably provide them significant discretion to determine the proper results in difficult cases.(10) This essay argues that the academic debate over the legitimacy of originalist and non-originalist constitutional interpretation has not progressed materially since Professor Machen's article.(11) Furthermore, a review of his work teaches us that originalism does not lead inevitably to active or passive judicial review; that questions about originalism as an interpretive tool are largely irrelevant to how judges decide real cases; and that there is little reason for scholars to continue to argue about the proper role of original meaning in constitutional interpretation.(12) That role should be as clear to us as it was to Professor Machen--judges refer to the original meaning of the Constitution to provide an important link to our past culture and traditions, but the original meaning rarely dictates results in real cases because the context within which that meaning is applied is constantly changing. The first part of this Essay supports these points by comparing Professor Machen's article to a recent argument among two of our most prominent legal thinkers, Justice Antonin Scalia and Professor Ronald Dworkin.(13) This comparison demonstrates that the debate over originalism has not moved forward in almost one hundred years. The second part of this essay discusses the academic debate over originalism and desegregation. This debate, perhaps more than any other, illustrates the futility of scholarly attempts to criticize or justify important Supreme Court decisions on an originalist basis, and supports my thesis that there is little reason for scholars to continue to argue about the appropriate role of original meaning in constitutional interpretation. I. THE ORIGINALISM DEBATE A. ARTHUR W. MACHEN In 1900, there were only three university-affiliated law reviews--the Harvard Law Review, the Yale Law Journal, and the American Law Review, which was the predecessor to the University of Pennsylvania Law Review. As of that year, there had been only a handful of articles ever written on the subject of constitutional theory.(14) Nevertheless, Professor Machen's article exhaustively explored the originalism question. Here is how this extraordinary article began: As the period of the formation of the American Union becomes more and more remote, it becomes constantly more important to inquire to what extent the decision of a question of federal constitutional law may properly be affected by the many changes in language, customs, morals, and in individual and national environment which have taken place since the adoption of our fundamental law.... Political opinions have changed: the doctrine of national unity has almost completely demolished its once mighty antagonist-the theory of state sovereignty. Commerce, instead of being conducted by stage-coaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality have changed: lotteries and duelling, once regarded as praiseworthy, are now thought pernicious and immoral. The effect of all these changes upon our system of constitutional law is surely an interesting and important matter for legal inquiry.... The present paper deals with the problems which arise when a constitution, the letter of which remains unchanged, is to be applied by the courts to an altered state of facts.(15) After framing the issue, Professor Machen asked whether "it [is] ever possible to justify a departure from the original intention? Can the Constitution be changed, silently and without formal amendments?"(16) He addressed this question by distinguishing two different "schools of opinion" regarding the interpretation of constitutional language.(17) One school, the "strict and literal constructionists," looked only to the "dictionary meaning" of the Constitution's words to discover the intentions of the Framers.(18) The other school, the "broad constructionists," believed in looking for the "actual intent" of the Framers in whatever way possible, sometimes giving a "forced or ungrammatical" meaning to the Constitution's words.(19) Although they employed different means, both schools were in agreement that, if ascertainable, the intentions of the Framers are "sovereign."(20)

Professor Machen next considered whether there were any exceptions to the rule that the Framers' intentions, if discoverable, must control constitutional interpretation. He suggested that "the most plausible ground for violating the intention of the framers is to be found in considerations of expediency."(21) He outlined the argument that modern commentators have recycled as the "dead hand" argument: "[t]o follow out precisely in all cases the will of men who lived over a century ago may, in certain contingencies, from the standpoint of policy, be extremely undesirable."(22) The Constitution, the supporters of this view argued, was intended by the Framers to be "elastic and adaptable to changed conditions," and it must be "a living, growing organism, capable of adapting itself to all the multiplex conditions in which the nation may be involved."(23) The Framers, according to this view, could not have intended that a political instrument designed to "endure through all time should always bear the same construction."(24) The Constitution "is not dead but living."(25)

Professor Machen rejected these arguments. If the intent of the Framers could be evaded for reasons of policy, he argued, the Constitution would lose its force as binding law. He suggested that there is no "middle ground" between following the Framers' intentions and deviating from those intentions for policy reasons.(26) Although an originalist doctrine might hamper the operations of the government, the alternative would give the judiciary the power to alter the Constitution and place the courts above the Constitution. That result would jeopardize our system of government and threaten the advantages of being governed by a "fixed organic law."(27)

Professor Machen anticipated the objection that the Framers were not of one mind on many matters and therefore the search for their specific intentions would be difficult, if not impossible. He responded that the search is not for the Framers' specific intentions which "if admissible at all, are received merely as evidencing the intention which the words, construed in light of the surrounding circumstances, reasonably express."(28) Instead, it is this "expressed intention" which judges must try to ascertain when deciding difficult cases.(29)

Professor Machen acknowledged that his discussion of originalism was predicated on the assumption that in a particular case the Framers' intentions could be ascertained. He conceded that the "imperfection and vagueness of human language [and] the difficulty of placing ourselves in the position of men who lived so long ago," causes great difficulty for "the interpreter of the Constitution."(30) When the intentions are unclear, Professor Machen suggested, judges should rely on practical rules of construction, and legislative and administrative practice, to decide constitutional issues. Even in such cases, however, Professor Machen warned against using modern notions of expediency to decide interpretive questions. Although he recognized a judge will "almost inevitably be unconsciously influenced by his knowledge of the immediate ill effects which a theoretically correct judgment might produce," he hoped that judges would not take into account policy considerations that would not have been accepted by the Framers.(31) Otherwise, judges might reach a different interpretation of the language than would a court sitting immediately after the nation was formed.(32) This practice, according to Professor Machen, "should never be followed."(33)

In Part I of his article, Professor Machen sounds like a strict originalist. He urged judges to use all available tools to discover what the words of the Constitution meant at the time they were written, and argued that contemporary policy considerations should be ignored in determining those intentions. If those intentions are undiscoverable, standard rules of construction and deference to the...