Is Originalism the Law?: The Law Reform Criticism

There are three principal grounds for justifying originalism: (1) Interpretive: the original meaning is the actual meaning of the Constitution; (2) Normative: following the original meaning is normatively desirable, where the normative desirability might be social welfare or justice or popular sovereign choice; or (3) Legal: the original meaning of the Constitution is the law (the “Legality Argument”).

In the past, I have expressed skepticism about the Legality Argument, noting that the jails are filled with people who violated statutes that conflict with the Constitution’s original meaning. Instead, I have argued that the rule of recognition in the United States allows to a significant extent both originalism and nonoriginalism as to constitutional interpretation. While one can argue that originalism is legal, one cannot argue that nonoriginalism is illegal. (But for some possible qualifications or alternatives to this view, see here.)

Recently, I have encountered some arguments where advocates of the Legaility Argument criticize normative arguments for originalism on the following ground. Normative arguments, such as the claim that following the original meaning will lead to good results, are problematic because they suggest originalism is about law reform. But originalists – historically especially – have argued that the original meaning should be followed, not because it will improve the law, but because it is the law.

This argument, however, does not work.

1. One problem is that, so far at least, the Legality Argument has not been established. No one, as of yet, has made a strong case for concluding the original meaning is the law. (In fact, I am not sure anyone has even tried in an extended article.)

If the Legality Argument is not established (and my view above is followed), then there is some kind of discretion as to whether judges are required to follow the original meaning. They seem to have a choice between originalism and nonoriginalism. How then does one attempt to influence how judges should decide constitutional cases? One significant possibility is with normative arguments.

First, one might argue that the rule of recognition allows for discretion of this sort to be resolved through normative arguments. This would avoid the criticism of normative arguments being about law reform, because the law would require (or at least allow) normative arguments to be made to clarify it. In other words, the normative arguments would be part of the law.

Second, one might deny that the rule of recognition contemplates that normative arguments will resolve the dispute. But one might still make normative arguments on the ground that the law does not resolve the matter and therefore one must go outside of the law to make a decision. This argument would again, avoid the criticism of normative arguments being inappropriately about law reform, because there would be no alternative legal way of resolving the question.

2. Another way that one might avoid the criticism of originalism as law reform is to make a normative case for originalism as the law. One might argue that the Constitution ought to conform to the rule of law in the sense that the law ought to be clear and limit the discretion of government officials. Originalism would supply such a rule of law, but the living constitution would not. Under this view, then, the original meaning of the Constitution ought to be the law because living constitutionalism does not really supply a law worth its name. This is not positivism. This is a kind of legal ideal – a sort of natural law thinking, if you will.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Ron Johnson says

    Options 1 & 3 are essentially the same: the original meaning is the law. What other conclusion can be reached if the Constitution is the supreme law of the land and we know its meaning? That leaves option 2, which is purely utilitarian. Purely utilitarian law is not law, it’s the mere application of power, which is something else altogether.

  2. gabe says

    Mike:

    something has always troubled me regarding Option “(2) Normative: following the original meaning is normatively desirable, where the normative desirability might be social welfare or justice or popular sovereign choice.” It is this: Will this (has this) not lead to a living Constitution. If we are to base decisions / interpretations upon what may be desirable are we not locking ourselves into an unending cycle of “desirable change” – desirable, of course, being divined by the Black Robes and ending in further “juris-lation.”
    If we are to change, ought not such change to come from the Legislature? Indeed, the preceding post on gay marriage can be sumnmarized by looking at the whole issue as another instance of “juris-lation.”
    Where does it all end?

    take care
    gabe

  3. says

    Mike, I am glad you explained the meaning of “Normative” in your (2) here. I misunderstood it, apparently, in your Dec 19, 2013, Is Originalism the Law? Part II: Is Nonoriginalism Illegal? In your last paragraph, (there) you say, (you) “believe the best argument is based on the normative soundness of the Constitution and the problems…” You coupled “normative soundness” in that sentence “with judicial updating of the Constitution developed”. I disagree, now, w/your “normative soundness” as explained in your new post (2) here. I agree w/Ron Johnson, “Options 1 & 3 are essentially the same: the original meaning is the law.” I will follow up Roger w/the “soundness” of “legality”: “Congress SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free expression thereof”. And the question you never seem to answer is: WHAT LAW, in the ratification of the 14th Amendment, did the states — ENUMERATE — the prohibitions — of the first amendments religious clause?
    In (1) of your first sentence, here, of “the Legality Argument”, you have made one yourself, previously. You have stated that the “privileges and immunity” of the l14th is the “legality argument” of — the prohibitions — of the first amendments religious clause “ incorporated” and PLACED as a prohibition against the States.
    You state here, “… originalists – historically especially – have argued that the original meaning should be followed, not because it will improve the law, but because it is the law, and you add, “This argument, however, does not work.”
    I will add: Your “argument, here, however, does not work.”
    Respectfully, John
    (Facebook, author of The Tribute)

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