Posted by: captainfalcon | March 9, 2010

More Primus

I recommend to everyone who’s interested in constitutional theory Richard Primus’s “The Limits of Interpretivism” (don’t all rush there at once). Its aim is to disentangle the tissue of justifications that proponents of originalism often proffer, and show that, properly understood, many of those alleged “justifications” actually cast doubt on originalism. Along the way, it gives a nice history of the evolution of constitutional theory. Another highlight, addressed below at greater length, is an ingenious rebuttal of the claim that originalism will promote stability in the law.

Using Michigan Supreme Court Justice Stephen Markman as a foil, Primus notices that originalists tend to adduce, in favor of their view, that it comes with all the virtues of textualism, “rule-ism” and traditionism. Hardly, says Primus:

1. The tension between textualism and originalism: “Textualism promises transparency. The law, says the pure textualist, is the set of words that the lawmaking body adopted. Those words are written in publicly available places. It follows that ordinary citizens can read the law and call officials to account if the officials do not follow the law. In a democratic society that values the rule of law, these are powerful attractions for a legal theory” (Primus, 6). But “If the meaning of a text is its original meaning, and if an original meaning has fallen out of common use, then a competent speaker of English today might well fail to grasp a meaning that a text legitimately carries” (Primus, 10). Originalism, then, can deprive textualism of one of its main virtues.

2. The tension between originalism and rule-ism: “As a general matter, originalism is a poor strategy for establishing clear rules of decision in advance of particular cases. Originalist source material is sometimes scarce and sometimes endless. It often  does not specifically address the question that must be decided. When it does address that question, it often does so in many different voices, no one of which has a greater claim to authority than the others. Moreover, judges′ understandings of originalist history vary over time. This is not a criticism of judges: professional historians′ understandings of the past are also constantly changing. But if our view of some set of historical materials is never stable, it is hard to understand why we should expect consulting those materials to be a good way of deriving stable rules (Primus, 12-13).

As it stands, Primus’s critique will not be accepted by originalists who have a different view of the nature of the historical source material (i.e. those, most originalists, I should think, who regard originalism is workable and, thus, as supplying the answer in a wide swathe of cases). For them, Primus has an alternative reply:

Consider, as an example, the question of whether the Second Amendment guarantees an individual right to own firearms. Before 2008, several courts tried to answer this question on the basis of original meanings. They reached different answers, which is to say that the quest for original meanings was of limited utility in producing a clear, stable rule for judges to follow. Then the United States Supreme Court decided District of Columbia v. Heller, ruling 5 to 4 that the Second Amendment does confer such a right. The Heller Court grounded its argument in original meanings. It does not follow, of course, that originalist reasoning supplied a clear rule for the Justices in that case. After all, five Justices believed that original meaning pointed one way, and four Justices believed that it pointed the other way. In the future, however, courts deciding cases raising the question of whether the Second Amendment guarantees an individual right to own firearms will enjoy the benefit of a clear rule. Heller′s function will be to take a multivocal morass of historical sources and trim it down to particular legal propositions that can be used to decide cases. That kind of clarification and rule creation is a central virtue of judicial precedent. Without the benefit of that precedent—that is, if judges were perpetually to engage the question of the original meaning of the Second Amendment afresh, rather than adopting the meaning chosen earlier by other judges—we would remain without a stable rule. Thus, originalism here is a source of instability and not of discretion‐confining rules (Primus, 14-15).

In other words, Courts employing originalism will as a matter of fact reach different conclusions at different times. Even granting, arguendo, that originalism gives a determinate, rule-like, answer in most cases, it remains the case that judges (mis)using originalism don’t converge on that answer. Without precedent to constrain them, then, judges will come to radically different conclusions on the same question at different times. Applied originalism promotes obscurity and instability in the law, even if originalism doesn’t call for those opprobria.

3. The tension between originalism and traditionism: “Traditionalism is about doing today what was done yesterday and the day before that. Originalism, in stark contrast, is about going back to time zero, whenever time zero was, and throwing out the deviations that have accumulated between then and now. Going back to time zero is not tradition. It can have any of several names, depending on whether the speaker wishes to signal approval or disapproval of the project. We could call it restoration, or reaction, or archaeology, or fundamentalism. Sometimes, it can make sense to sweep away a set of accumulated practices in favor of how things were, or were imagined to be, at a moment of origin. But doing so is not traditionalism. It is one of traditionalism′s opposites” (Primus, 16).

What’s left as a justification for originalism?* First, considerations of democratic legitimacy; the law, as originally understood, is arguably what the legislature adopted. (Although I suppose it is possible that legislatures adopt laws tacitly understanding, and accepting, that their understanding will evolve over time.) Second, perhaps, results-oriented justifications; originalism, at least properly applied, happens to yield good results. Primus’s remarks on the tension between originalism and traditionalism cast doubt on the claim that originalism as actually applied would yield good results (on any but the most bizarre, unstable, conception of the good), but that doesn’t mean originalism isn’t ideally the best.

* Primus’s answer, which I’ve yet to read, here.

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