Originalism Without Text.

Author:Sachs, Stephen E.
 
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(i) The Fixation Thesis: that "[t]he meaning of the constitutional text is fixed when each provision is framed and ratified." (2) (2) The Constraint Principle: that this "original meaning of the constitutional text should constrain constitutional practice." (3) These core ideas lie at the heart of the "New Originalism," the movement's dominant school. (4) They're recognized as authoritative by both supporters and opponents. (5) Yet the core ideas serve better as a summary than a definition; using them to circumscribe the theory is a mistake. That's because originalism doesn't need to be about the meaning of any text. A society can be recognizably originalist without having a written constitution, written law, or any writing at all. If having a text isn't fundamental to originalism, then originalism isn't fundamentally about the meaning of texts. We could exclude such a society by stipulation if we wished, (6) but that would save the core ideas only by sacrificing the coherence of the theory they describe.

In our society, of course, we do have a written Constitution, and debates about its meaning figure centrally in our constitutional law. Even so, these linguistic debates should be kept in their place. Treating the core ideas as firm requirements would exclude, without justification, a variety of theories more coherently brought within the originalist tent. A number of scholars, this author among them, have argued for shifting focus from original meaning to our original law: the law of the United States as it stood at the Founding, and as it's been lawfully amended since. (7) That law might well have been shaped in part by the original meaning of legal texts--so that the Constitution's meaning would indeed have been fixed at the Founding, and this fixed meaning would indeed constrain constitutional practice. The core ideas would then be contingent consequences, but not necessary features, of a broader commitment to originalism. Other scholars look to still different facts about the Founders--such as the values they expressed, the particular policies they endorsed, or the interpretive methods they employed. (8)

All of these theories have something in common. They treat the content of American constitutional law as properly resting on its origins--on features of our legal Founding that remain legally operative today. Accepting them means treating modern law as vulnerable to history, as open to refutation by claims about the past. But each theory looks to different features of the Founding, and each might occasionally conflict with a view centered on the original meaning of language. Given the strong attachments or aversions people have to the "originalist" label, it'd be nice to know how broadly it applies. Perhaps theories like these really ought to be cast out of originalism, into outer darkness, where there shall be weeping and gnashing of teeth. But that kind of move requires argument, not just stipulation.

I

Consider the following hypothetical:

The society of Freedonia has no writing and no written law. Its legal rules are passed down through oral traditions, which provide for councils of elders to do limited judicial work. Freedonia goes through a period of legal tumult, in which influential council decisions are said to have misstated the traditional rules and to have exceeded the councils' authority. A Great Council is held, in which it's agreed--in substance, and without resolving on any canonical form of words--that all innovations to date are to be accepted as necessary evils, but that no new innovations are to be allowed, and that the ancestral traditions are otherwise to be preserved inviolate. Generations pass, and again some councils begin to overstep these limits, arguing that the traditions must be altered to accommodate modern circumstances. Other Freedonian elders criticize their fellows for failing to apply the law as approved at the Great Council. Are these critics originalists?

True, they aren't trying to construe a constitutional text. Without a paper record, it might be hard to know what the older traditions were, or to be sure that they differed from those of the present day. But it's a question of empirics, not of theory, how much anyone knows about the past. Maybe the elders learned the traditions in their youth, or consulted people who did; maybe they reviewed audiotapes of oral histories helpfully recorded by visiting anthropologists. The nature of the evidence doesn't matter. The older rules themselves were real, the modern divergence from them may well be real, and the elders' criticism of that divergence strikes a familiar originalist tone.

True also, the elders aren't trying to enforce a written law. A society can have "written law" without writing, of course; it can transmit an enacted text by word of mouth just as it can on paper. The Constitution would still be "written law" if it were recorded as a string of ones and zeros in ASCII format, or as a set of interpretive dance steps--or if we all just memorized it, taught it to our children, and then burned the National Archives. It would still contain particular terms, adopted on a particular occasion, that carry legal significance by virtue of their adoption. Yet a society doesn't have to structure its law this way. In our hypothetical, the Council approved no canonical formulation of its decision (say, "NO NEW INNOVATIONS ALLOWED") that might serve as a text to be interpreted later. Maybe the Council ran more as a discussion session than a legislative assembly, breaking up once a consensus emerged. Or maybe everyone simply understood what was agreed upon, reporting it back to friends and colleagues in variously worded but substantively consistent ways.

The case would be no different had the Council proceedings been fully recorded. Maybe some unofficial reporters sat in and composed famous sagas about the deliberations; these sagas would be texts, and they might even be written down (the anthropologists again), providing full accounts of the proceedings. But like the yearbooks in medieval England, these accounts would be mere evidence of the underlying legal standards: they would be written texts, but not written law. (9) A society can do plenty of writing about legal rules that stay "unwritten"; it can describe its customary traditions in academic treatises, formularies, case reports, and so on, while the traditions themselves remain purely customary. What makes them so, as Blackstone put it, is that "their original institution and authority are not set down in writing, as acts of parliament are," but they instead "receive their binding power, and the force of laws," simply by usage and reception. (10)

Other customary traditions work the same way. Plenty of books describe the rules of English grammar, and some of them--like Strunk & White (11)--occasionally carry enough authority to influence the practice. But none of these books can establish rules of grammar the way that statute books establish rules of law. (12) Individual statements about grammar and spelling might be more or less accurate ("I before E, except after C," "never end a sentence with a preposition," and so on), yet the particular form of words used to express the rules has no independent significance. What matters is whether our formulations get the substance of our practice right.

So the Freedonian elders aren't seeking to...

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