Posted by: captainfalcon | May 10, 2010

Nothing Original

But here, quite succinct, is the case against originalism:

Originalism (whether about intentions or meanings) is now the dominant, almost entirely unquestioned touchstone of constitutional argument and interpretation in the United States.  This is odd since there is no plausible, theoretical justification for it that speaks to the kinds of issues I noted in passing and that are taken up by Professor Marmor in the piece linked to, above.  Although there analogous questions that could be raised about constitutionalism itself, the issue of originalism as a theory of interpretation is severable.  We might agree that later majorities should be bound by an earlier foundational document (the crux of constitutionalism), but that simply does not settle the question of how the meaning of that document should be fixed.  (Last year, when I pressed Akhil Amar about this during a visit to Texas, he argued that to be bound by the text one has to be bound by the original understanding.  This is, alas, also a non-sequitur, and not just conceptually:  in practice, for example, Canadian courts are barred from originalist interpretations of the Charter, yet still manage to interpret and apply it.)

Those who would supplement constitutionalism with originalism need to explain why the original meaning or intentions are authoritative.  Intentions might be authoritative if, for example, we had consented to be bound by them; but that is inapposite in this case. Intentions might be authoritative if they reflected a kind of practical/moral expertise or insight, such that (to put it in Razian terms) we are more likely to do what we really ought to do by treating these original intentions as authoritative with respect to our decisions and choices today; but that also seems inapposite in this case, absent some extended moral and political defense of the special expertise of the framers of the Constitution.

In general, originalists fail to come to terms with the question of why original meanings or intentions should be authoritative, and opt instead for instrumentalist arguments of the form, “We need originalism to constrain judges.”  But there are multiple ways to constrain judges (make their decisions appealable; permit legislative overrides [as, e.g., the Canadian Charter does in certain contexts]; adopt a simple rule like, ‘Appellant always wins’ [this last being far more efficient than originalism!]; adopt a more complex rule like “the plain, current meaning controls,” and where it is unclear, do a Gallup poll to see what the “people” want), and so what is needed is some clear explanation of why originalism should be the preferred way of achieving constraint (why is constraint a value?  how much constraint can originalism deliver compared to alternatives?  etc.).  Perhaps originalism can meet these challenges.

It is a decidedly odd feature of our contemporary constitutional culture in the U.S. that, despite the absence of answers–indeed, despite the recognition in many quarters that these are real challenges!–originalism should be so widely accepted across the political spectrum.


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