Interpretation and construction: originalism and its discontents.

• Author: Roosevelt, Kermit, III
• Position: Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism

Does originalism always provide judges with the path to a correct decision in a constitutional case? Before trying to answer this question, consider why someone would ask it. The motivation is relatively straightforward: It is a concern about the legitimacy of judicial decisions. The question arises because originalism, as a method of deciding cases, is supposed to give judicial decisions a particular sort of legitimacy. "This is a controversial decision as a policy matter," an originalist might say, "but it was not made by the judges who rendered the opinion. It was made by the Constitution--by the People, with a capital "P', who ratified the Constitution." Alexander Hamilton made just this argument in support of judicial review in Federalist No. 78, writing that the practice does not "'by any means suppose a superiority of the Judicial to the Legislative power" but only "that the power of the people is superior to both." (l) John Marshall echoed the argument in Marbury v. Madison, reasoning that denying judicial review "would be giving to the legislature a practical and real omnipotence" (2) in defiance of the "original and supreme will" (3) of the People.

This People- or ratifier-derived legitimacy is usually contrasted with the awful specter of judicial activism, loosely defined as judges deciding cases based on their own views of wise policy. (4) Activist judges make decisions. Originalist judges merely implement the decisions made by the People.

The very idea of constitutional construction, (5) however, is threatening to the originalist view of judicial decisionmaking because it adds a step between the decision of the People and the decision of the judge. As Professors Barnett and Nelson have observed, construction requires more of the judge than merely effectuating a decision that the People have already made. (6) And so the question arises whether originalist interpretation combined with construction still has the legitimacy described above. Thus, originalists, or at least some of them, worry about construction, or think that our task should be to place constraints on the process of construction in order to ensure that it does not open the door to activism. (7)

My thesis here is that originalism is not tarnished by construction, and originalists should not fear it. For one thing, fear is useless: Even if there were reason to be afraid, construction cannot be avoided, as Professors Barnett and Nelson argue. (8) The more important reason not to fear construction, however, is different from the reasons given by Professors Barnett and Nelson. The more important reason is that the vision of legitimacy-through-originalism set out above is at best deceptive and probably better described as false. Such a vision distorts the consequences of a sensible originalism and misrepresents the whole history of judicial practice. Neither originalism nor judicial practice allows a judge to claim that the results he reaches are always the product of decisions made by some long-ago ratifiers.

Beginning with originalism and setting aside construction, suppose that the meaning of the Constitution is fully adequate to decide a case. Can a judge necessarily say that she is simply enforcing a decision already made by the ratifiers?

The answer is no, not necessarily, because it is quite possible to write a constitutional provision that directs different results as times change. (9) My favorite example is a fictional constitutional clause providing that senators, while engaged in debate, shall wear "the latest Fashions." (10) Let us grant, as originalists claim, that this clause has a particular meaning, which was fixed at the time of enactment. Nevertheless, the applications of this meaning will change over time. Clothing that was fashionable in 1789 will not be fashionable in later times. Judges will have to decide, based on contemporary standards, whether particular dress meets the constitutional requirement.

Is such a decision the dreaded Living Constitution in disguise? (11) It is not. This decision is an example of a constitutional provision with a fixed meaning that is understood and intended to direct different applications as circumstances change. It is perfectly legitimate for drafters and ratifiers to devise such a system. (12) And if your purpose is to ensure that Senators are fashionably dressed, this is the kind of provision you would want to write. So against a charge that this is the Living Constitution, there is a defense. In fact, the same defense the originalist judge is supposed to have: Do not blame me, blame the People. They are the ones who wrote and ratified a provision that has changing applications. (13)

But did they? These kinds of provisions are possible, but whether we have any similar provisions in the real Constitution is a separate question. A full answer to that question would require an elaborate historical analysis, and the focus of this Essay is theory rather than history. This Essay will assume for the purposes of demonstration that we do have such provisions and that the Equal Protection Clause is one. (14) The Essay will make two brief points in support of that assumption, and then invite the reader to look at the history and decide for himself. (15)

First, if you want to make sure that a minority of states do not get out of step with what a national majority thinks is reasonable, you would want a clause with fixed meaning but a floating set of applications. That is a good general description of the spirit behind the Equal Protection Clause. The nation had just fought a war against a minority of states, and the Reconstruction Congresses sought to end discrimination deemed appropriate by that minority but not by the national majority. (16) Congress could have limited its equality demand to race, as it did in the Fifteenth Amendment...