What's the point of originalism?

AuthorDrakeman, Donald L.
  1. EMBRACING ORIGINALISM

    As of late, a remarkable array of constitutional theorists have declared themselves originalists of one sort or another,* 1 and no one is quite sure why. (2) Or, perhaps more accurately, everyone is sure, but they all disagree with each other. For some, the originalism command springs directly from the text itself: it is a written Constitution, and the original meaning of the text itself is the law of the land; (3) for others, such as Justice Scalia, it is the best (and perhaps only) way to restrain judges from reading their own values and policy preferences into the Constitution; (4) and, for the philosophically inclined, Paul Grice, Ludwig Wittgenstein, and other modern, usually European, philosophers of language provide scholars with deep and complex insights into how to understand the Constitution; (5) and so on. (6) In recent years, various New Originalist arguments have led to the ascendency of the objective meaning of the text itself over the intentions of its authors, which was the focus of the now much-derided Old Originalism of the "undertheorized" past. (7) The result is that many scholars now prize the views of an average person, or a hypothetical ratifier with full knowledge of all of the relevant circumstances (8)--someone best described as a time-traveling law professor--in place of the actual intentions of the constitutional Framers.

    The idea that the British Paul Grice or Ludwig Wittgenstein, a Viennese philosopher born at the end of the nineteenth century, may have more to say about the meaning of America's founding document than, say, James Madison, the "Father of the Constitution," (9) exposes these constitutional theorists to the significant risk that they are cutting themselves off from one of the most important audiences for Supreme Court opinions: the public. This concern over the potential for excessive theorizing arises because the public holds the Framers and their intentions in considerably higher esteem than do the New Originalists. Ignoring what the Framers were actually trying to accomplish when they wrote the constitutional text may not trouble today's New Originalists. Vasan Kesavan and Michael Stokes Paulsen, for example, call the work of the Convention, where the Framers hammered out the final language of the Constitution, "dead words on paper." (10) The public has a different view. A newly commissioned survey shows that over ninety percent of the public thinks that the Constitution's original meaning should play at least some role in the Court's decisions, with a full two-thirds citing the Framers' intentions as the single most important source of that original meaning. (11) And the Supreme Court, which keeps its audience in mind, especially in deciding high-profile constitutional cases, will almost certainly make a point of explaining how it reached its understanding of the Constitution in a way that is designed to appeal to the public.

  2. WHY DO WE HAVE SUPREME COURT OPINIONS?

    Although we have come to expect the Court to explain its rationale in lengthy opinions, it is worth noting that nothing in the Constitution actually obliges the Justices to give reasons for their decisions. The early Supreme Court, which was composed of an impressive collection of Framers and ratifiers, rarely issued formal written opinions (or any opinion at all). (12) In fact, when we now read what looks like the opinions of the Justices from the first decade or so of the Court's decisions, we are generally seeing notes taken down by a lawyer such as Alexander Dallas or William Cranch, whose business was to publish and sell copies of the notes to other lawyers. (13) In many cases, there were no official statements of the Court's reasoning at all, (14) and, where we do have seriatim opinions, they represent each Justice's comments on the case--usually brief ones, as far as we can tell. (15) Only when John Marshall became Chief Justice and, in particular, as he successfully built the Court into a significantly more powerful political entity, did the Court begin issuing formal opinions. (16)

    Marshall famously announced in Marbury v. Madison (17) that it is the duty of the Supreme Court to say what the law is. This case is often considered the beginning of judicial review--that is, the ability to say what the law is includes the power to determine whether the Congress or the President has exceeded its legal authority. (18) Although this judicial interpretative power provides a mechanism for restricting other branches of government from contravening the Constitution, the remaining question is: Are there any limits on the Court's interpretive power? With no fixed limits, there is a risk that the Supreme Court could use its constitutional carte blanche to usurp the proper constitutional roles of the elected legislative and executive branches. There are various ways to address this issue, from the rarely used impeachment power to the cumbersome process of amending the Constitution. (19) But, for our purposes, the critical practical restriction on the Court's power is that the Justices recognize that they need to persuade people that they are properly interpreting the Constitution. As Senator Richard Blumenthal recently said, in connection with the Supreme Court's review of the Affordable Care Act, "The court commands no armies, it has no money; it depends for its power on its credibility." (20) Or, as Philip Kurland has put it, "[T]he only power that the court can assert is the power of public opinion." (21)

    Chief Justice Marshall was acutely sensitive to this need for the Court to offer good reasons for its decisions. As his Federalist-dominated Court made a series of controversial decisions during Jefferson's administration, he instituted the now-common mechanism by which the Court continually defends its exercise of power by not only saying what the law is, but also by explaining, in a formal written opinion, why the law is the way that it is. (22) The opinion writer, usually Marshall himself in the early years, (23) would set out the reasons supporting the Court's constitutional interpretation, and Marshall worked to discourage the other Justices from any sign of dissent. (24) Under Marshall's leadership, as the Court made a grab for more power and prominence in the young nation, (25) the opinion became a tool for self-justification--the Court's way of explaining, or at least claiming, that its growing influence derived from a legitimate and faithful interpretation of the Constitution. Such written opinions would show that the Justices were not motivated by political or partisan interests but by good reasons that could be explained to the public. (26)

    The relationship between the range of possible interpretations of the constitutional text and the exercise of political power by the Supreme Court when it renders its decisions is probably best--or at least most famously--described in the work of another European scholar, Oxford mathematician Charles Lutwidge Dodgson: "'When I use a word/ Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean--neither more nor less.'" (27) To this "making it up as he goes along" explanation of meaning, Alice gives a sensible response that might well represent a skeptical public's point of view: "'The question is,' said Alice, 'whether you can make words mean so many different things.'" (28) And Humpty Dumpty answers in a way the Supreme Court could respond, but has elected not to: "'The question is,' said Humpty Dumpty, 'which is to be master--that's all.'" (29) In its decisions, the Supreme Court can choose to make the Constitution's words mean whatever it wants them to mean, but then it must declare itself to be the master. In a government of multiple branches, it is politically astute for the Supreme Court to describe its role not as an oracular font of idiosyncratic meaning, but as a faithful interpreter of the Constitution using--and here is the key point--appropriate methods for doing so. In this way, the "master," in Humpty Dumpty's words, is visibly held out to be both the Constitution and the persuasiveness of the Court's interpretive methodology. That methodology, as described in the Court's written opinions, represents a public defense of its exercise of power. As three Justices wrote in a 1992 case, the Court's "power lies ... in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands." (30) The Supreme Court thus does not hold itself out as the ultimate master with arbitrary power over both law and language, but as a constitutional entity bound by the text, on one hand, and by its ability to demonstrate that it has good, publicly disclosable, reasons for its interpretation, on the other. (31)

    Interestingly, though Chief Justice Marshall knew that there was considerable public relations value in providing a thoughtful interpretive rationale that included impressive citations to various respected authorities, some of his detailed opinions were crafted well after he reached his decision on the outcome of the cases. The impressive legal authorities we see in those opinions were often supplied by his more learned colleague, Harvard law professor Justice Joseph Story. In the 1870s, another Harvard professor, Theophilus Parsons, in describing Chief Justice Marshall as "the greatest man I ever knew," noted that the eminent Chief Justice "knew very little 'book law' when he was appointed. He had attended but one course of law lectures, and had practiced but three years." (32) And so, when "it was [time] for the judges to decide [a case], after thinking for some time, he would write down his decision, and, handing it to Judge Story, say: 'There, Story; that is the law of this case; now go and find the authorities ...'." (33) Of course, in other cases, the...

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