Posted by: captainfalcon | February 25, 2010

Originalism is unAmerican

If you are an originalist, you think that whatever the Constitution, as originally understood, enjoins is what it enjoins today. For originalists, careful, dispassionate interpretation is of paramount concern.

It seems plausible that those with a vested interest in a text being valuable (and, especially, infallible) – those who love the Constitution, or the Bible, or The Hobbit, or whatever – will not give the best exegeses. They will warp the text to dissolve inconsistencies, inelegance, reprehensibility, etc. They will not conduct careful, dispassionate interpretation. Thus, if we assume that American constitutional lawyers – like respectable Americans, generally (and especially respectable Americans with a soft spot for originalism) – love the Constitution then it follows they aren’t the best at interpreting it. Consequently, they should not be the ones telling us what the law is. Instead, we should designate those who are neutral towards the Constitution. How would an Icelandic judiciary play politically?

Notice, too, that this line of argument doesn’t work against non-originalists. Those who think judges should should make constitutional decisions (in part) according to some moral theory can insist that we should seek those who love America, because they will be the one’s most in touch with her needs and most vested in her success.

The ironic upshot, then, is that American exceptionalism sits more easily with non-originalism than it does with originalism.

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Responses

  1. Your more general argument (that if one needs to determine the meaning of the text, one should choose someone who can dispassionately consider the text) does have a rather odd pair of exceptions.

    One could consider a text so well-written, admirable, and useful that no competent scholar could study it closely without developing a deep and abiding admiration for said text. In that case, insistence that the text be interpreted by a dispassionate observer is an insistence that the text be interpreted either by an incompetent or by someone with only cursory knowledge of the text – which seems more objectionable than a competent, knowledgeable reader who also holds a soft spot for the text.

    Or one could consider a text where the authors are still alive (and, perhaps, have simply been yanked out of time and plopped down immediately after finishing the text, so their speech patterns, opinions, and preconceptions have not changed a bit). The authors have a rather obvious bias in favor of the text, and thus can hardly be counted upon to render dispassionate analysis…
    If this is a bit too obviously not in the nature of the objection, one could consider e.g. the close friends and colleagues of the authors being gathered to interpret; out of respect for the author one presumes they would try to gloss over blemishes. Or one could consider a man who idolized said text in his youth, and consequently has spent his entire career reading the authors’ journals and biographies, studying their works, and generally learning everything he can about it.

    Now that I look back over those two odd cases, I think the general objection is that while ceterus parabus a dispassionate observer is to be preferred, it is not at all clear that there are always equally qualified dispassionate observers; nor is it even always true that there CAN be equally qualified dispassionate observers.

  2. I don’t think admiration of a text tends to make one partial to it in an objectionable sense. One can admire a text despite of its flaws. (Or even because of them. I seem to recall someone once listed all the errors and slip-shoddery in Keynes’s “General Theory” as evidence of its genius). Love is a different story.

    Also, it’s a familiar trope that authors are the worst at interpreting their own work. Is this a shibboleth? Maybe, but the ellipsis at the end of your third paragraph doesn’t suffice to explode it.

    Your broader point is right, though. It is possible for there to exist someone who is (a) partial to a text in an objectionable sense but (b) better at interpreting it than anyone else. It is also possible for (a) to imply (b); either along the lines of the way you point out (love emerges from an understand of the text) or vice versa (understanding can only emerge from love – think bizarre otherworldly psychology).

    And maybe such a person exists right now. I’m pretty sure he’s not an originalist, though.


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