Why Originalism?

In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”

Indeed, originalists themselves often advance this claim as well. And there’s a sense in which it’s true. But critics often appeal to reductionistic versions of this claim to set up a Straw Man argument (albeit, one that overzealous originalists sometimes invite). The Straw Man I frequently hear from critics is that originalism promises to identify exactly one determinate meaning for each legal text. Then with a smirk and a wave of the hand, originalism is perfunctorily dismissed with the mere mention of texts that prohibit “unreasonable searches and seizures” or that vest “executive power.”

To be sure, just because a text can abide two or more reasonable readings does not perforce mean that it can mean anything at all – so originalism does provide a discipline that narrows the set of possible interpretations. Nonetheless, I think the real appeal of originalism lies on a different foundation.

The real force of textualism, it seems to me, is not its effect in constraining judges one way or another. Rather, the force of textualism is that it suggests we read legal texts akin to how we read other texts in ordinary life, whether a sonnet by Shakespeare or a letter from Aunt Emma.

To be sure, textualism limits interpretive options after a fashion. But reducing the set of interpretive possibilities is not the same thing as reducing the set to a singleton. As anyone who has mused, or argued, over what a passage in Shakespeare might mean, or what Aunt Emma meant by those couple of sentences in her letter, ordinary texts provide plenty of room for alternative, albeit reasonable, interpretations. But just because there are several – or even many – reasonable interpretations of a text does not mean we jettison our goal: to understand what the other person actually wrote. And we recognize that if we prefer the author had written something other than what actually was written, well, that really doesn’t influence the process by which we seek to provide an honest reading of what was actually written.

Even within originalism itself there are some versions that invite more occult readings of legal texts. So per Scalia, I think it’s useful, even important, to distinguish between original-intent originalism a la Ed Meese, and textualist originalism, a la Antonin Scalia. It’s not difficult to think of examples in which original intent originalism produces legal outcomes opposite of textualist originalism.

In the 1873 Supreme Court decision in the Slaughterhouse Cases, for example, the majority opinion declined to apply the Fourteenth Amendment privileges and immunities clause to protect white butchers in Louisiana, in part, by arguing that the “spirit” of the Fourteenth Amendment (i.e., the intention of the drafters and enactors) inclined against its application in the case.

Justice Miller, writing for the majority, argued

The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history . . .

[I]n the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.

. . .

We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction.

In dissent, Justice Bradley took issue with using the intention or proximate purpose leading to the adoption of the Fourteenth Amendment to limit a reasonable reading of the text itself:

It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.

In this case textualism did not constrain Justice Bradley’s application of the Fourteenth Amendment. Indeed, his reading would have expanded its application relative to the majority interpretation. But what he sought to do was to provide a fair reading of the text itself. The text itself did not exclude application to the New Orleans butchers, and so neither would Bradley.

James R. Rogers

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

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  1. Nancy D. says

    http://harvardlawreview.org/2016/02/reconciling-state-sovereign-immunity-with-the-fourteenth-amendment/

    “By ratifying the Fourteenth Amendment, the states “surrender[ed] a portion of the sovereignty that had been preserved to them by the original Constitution,” including their right to sovereign immunity.”

    The Fourteenth Amendment:

    “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    The Fifth Amendment:

    “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

    The Fourteenth Amendment serves to complement The Fifth Amendment, making it clear that due process applies to persons, and because it is a self-evident truth that regardless of one’s location, every son or daughter of a human person, can only be, in essence, a human person, it is not true that
    “By ratifying the Fourteenth Amendment, the states “surrender[ed] a portion of the sovereignty that had been preserved to them by the original Constitution,” including their right to sovereign immunity”.

  2. David Upham says

    To put a finer point on it–Justice Bradly did not reject “original intent,” but, like Lincoln (and Blackstone), held that the intent of the lawgiver is the law, and that such intent was to be found chiefly in the text. In seeking this “intent,” as distinct from motive, Bradley does not say that the textual evidence should not be supplemented with considerations of the reason or spirit or motive for the enactment.

    • gabe says

      David:

      “Bradley does not say that the textual evidence should not be supplemented with considerations of the reason or spirit or motive for the enactment.”

      No, he does not BUT I (think?) I may. It may be that “spirit” or “motive” may be just as elusive as is intent when considering 535 individual minds involved in the negotiation of the law and the drafting (crafting is perhaps a better term of art).

      This notion of determining the spirit / motive etc is fairly common. also common is the belief by many that a certain principle ought to inform our jurisprudence.

      Yes and no! I believe that, as an example the Declaration, ought to inform all of our laws. Yet, I do not believe that the DOI ought to be used by the Judiciary to divine meaning / constitutionality in the Laws passed by the Legislative.

      Here is a nice take on the ongoing problem from Steven Hayward, PowerLine honcho:

      http://www.libertylawsite.org/2017/02/02/patriot-fight-club-a-conversation-with-steven-hayward/

      I also have an extended (albeit in my usual scatterbrained fashion) comment arguing that while Laws ought to be informed by the DOI, as percolated through 535 individual minds, it is impossible for the Judicial to divine the intent / spirit etc of the Legislators. In other words, how can a Jurist apprehend how the DOI (as an example) has *informed* first, the individual Legislator and second, how the influence, varied as it must be, of 535 individual Legislators has been combined into one nice neat package of spirit / intent / “informing.”

      As I say, I THINK this – but still hold on to some residual belief (hope) that we would at least honor the DOI.

      anyway, take care
      gabe

  3. Nancy D. says

    One cannot change the spirit of the law, without changing the letter of the law; one cannot change the letter of the law, without changing the spirit of the law. The letter and the spirit of the law may be distinct, but they are complementary.

  4. says

    Regarding originalism and the Declaration of Independence, Chief Justice John Marshall, writing for a unanimous Supreme Court in Marbury v. Madison, declared: “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.” Here Marshall was referring to the ORIGINAL “declaration” of independence, the congressional resolution of May 10 and 15, 1776. This resolution authorized the colonies to suppress royal government and create new governments that “best conduce to the happiness and safety of their constituents in particular, and America in general.” This resolution was copied or paraphrased in several of the original state constitutions. This resolution included a definition of happiness as “internal peace, virtue and good order.” The elements of this definition appear in Cicero’s “Tusculan Disputations,” Cumberland’s “Treatise of the Laws of Nature” (which also includes the phrase “pursuit of happiness”), and Burlamaqui’s “Principles of Natural and Politic Law.” John Adams, the man who would later appoint John Marshall to the Supreme Court, wrote this definition of happiness.

    VIRTUE is part of the 1776 definition of happiness, which means that the phrase “pursuit of happiness” doesn’t have a Lockean liberal meaning. I wrote about this at length in “The Declaration of Independence without Locke” at https://independent.academia.edu/JohnSchmeeckle

  5. jdlinton says

    In this regard, textual interpretation can take a lead from recent developments in Scriptural interpretation. A passage should always be interpreted in light of what has been written before. The Constitution has a great background in prior constitutional and common law expressions. Those writings that went before on the English constitution should always guide.

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