Tuesday, May 23, 2006

Democracy and Originalism

For decades scholars, judges, and legislators have debated how to properly interpret the Constitution. In the mid-80's conservatives scholars started pushing an approach called "originalism" or more accurately "textualism-originalism" The current (and best) understanding of the term is that judges should look at the plain meaning of the text and if the text is unclear they should interpret it based on the original understanding of the people who lived at the time. For example, the Eighth Amendment prohibits "Cruel and Unusual Punishments." Originalists interpret that clause according to the general understanding of what was cruel and unusual in 1791.

The most common justification for originalism is that it constrains judicial discretion. The Constitution is fairly vague and open-ended and subject to a multitude of interpretations. When reviewing a statute to see if it comports with the Constitution, courts are looking to see if they should overturn the will of the democratically elected legislature. If a judge does not have a methodology, he will substitute his own judgment for the legislature's and that is a form of judicial lawmaking. If one believes that the people's representatives should make laws and not nine men in black robes, he should support some form of judicial methodology.

Why originalism then? Laws are made for their time. While a Constitution is supposed to be designed for future generations, it is a public act of that time and is best understood based on the time it was enacted. So originalism both limits judicial activism and interprets the Constitution according to its most proper understanding.

Originalism is not perfect. It is difficult to ascertain how people living well over two hundred years ago understood a specific clause. It does not completely solve the judicial activism problem because judges are still able to frame the question on a higher level of abstraction and avoid the whole question. It does little for us when the phrase is ambiguous. But despite all these problems, no other mode of constitutional interpretation is as effective in protecting democracy from judicial oligarchy.


Anonymous Anonymous said...

So the Second Amendment only protects muzzle-loading black powder flintlocks, and edged weapons like swords? I could live with that.

5/23/2006 5:11 PM  
Blogger blueenclave said...

Desperate jumping up and down. Swords Crossed, an experimental debate site between friends Armando of Daily Kos and Trevino of Tacitus, has just lost Trevino. He has claimed other commitments. Nephtuli would be 100% perfect for the conservative slot. Email joshua@trevino.at or armando.dkos@gmail.com.

5/23/2006 5:19 PM  
Anonymous Anonymous said...

That's cute Anon, real cute.

5/23/2006 5:47 PM  
Blogger Nephtuli said...

So the Second Amendment only protects muzzle-loading black powder flintlocks, and edged weapons like swords? I could live with that.

Hey, that's more than the Second Amendment protects according to the Supreme Court now.

Um, Blue Enclave, I'm honored, but not sure I'm qualified for that spot.

5/23/2006 6:03 PM  
Blogger Jewish Atheist said...

Call me cynical, but it seems to me that most advocates of so-called "originalism" only advocate that method of interpretation because it leads to decisions that they like. In this way, it's similar to the advocacy of "states' rights." Every now and then when advocating states' rights goes against their interests, conservatives run to take the other side.

Additionally, "textual originalism" falls prey to the same problem that Biblical literalism does -- namely that text is inherently ambiguous. Without interpretation, text is meaningless.

I also think that too many conservatives ignore the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Conservatives, when they complain about "Judicial activism" are too often complaining about the expansion of civil rights. I didn't hear many conservatives bemoaning the decision in Bush v. Gore.

(Some of these ideas come from the wikipedia article on originalism.)

5/23/2006 7:26 PM  
Blogger Classmate-Wearing-Yarmulka said...

Every now and then when advocating states' rights goes against their interests, conservatives run to take the other side.


The originalists I know were quite upset about Gonzalez v. Raich. Not because they were against medicanal pot, but because the federal government was intruding into a state's issue.

5/23/2006 7:36 PM  
Blogger Charlie Hall said...

Originalism would support the ACLU position on separation of church and state.

5/23/2006 10:26 PM  
Blogger ThePointInBlogging? said...

Wow, a political blog!!!

5/23/2006 11:43 PM  
Blogger blueenclave said...

You are capable of having a legal argument with Armando. That's more than Trevino could do. Also you are capable of stating a principled conservative position.

5/24/2006 12:25 AM  
Blogger blueenclave said...

And every other post would not be calling out some liberal blog for being mean.

5/24/2006 12:26 AM  
Blogger Charlie Hall said...

'the federal government was intruding into a state's issue'

What did they think about the Oregon assisted suicide case?

Or the federal ban on so-called "partial birth abortion"?

Or the Defense of Marriage Act?

None of these used to be federal issues.

5/24/2006 10:37 AM  
Blogger David Fryman said...

>>[J]udges should look at the plain meaning of the text and if the text is unclear they should interpret it based on the original understanding of the people who lived at the time.

What if the text isn't ambiguous. What if it's clear what the words mean and equally clear that what the words mean isn't how its authors intended it?

5/24/2006 11:31 AM  
Blogger Nephtuli said...

I might write a post that deals with the arguments against originalism, but I'll respond in a basic way now.

Conservatives, like liberals, are not always consistent. So are and some aren't. But that doesn't disparage the methodology itself.

Many originalists do ignore the 9th Amendment because they do not believe there is a sufficient history for us to understand what the Amendment means. Not all ignore it, however. Randy Barnett, one of the biggest supporters of originalism, believes the Amendment protects "natural rights." For originalists, the question is whether the Amendment is clear enough for us to use it.

Is text meaningless without interpretation? What happens when the plain meaning is contrary to the intentions of the authors?

Text can be interpreted in various ways and there are more than one reasonable interpretation of the text. Certainly text cannot have meaning without some form of interpretation, but there are more reasonable interpretations than others.

For example, the Due Process Clause of the 5th and 14th Amendments both state that "No person shall be... deprived of life, liberty, or property, without due process of law...." Some interpret the clause to mean that the state only needs to use due process if it wants to deprive someone of life, liberty, or property. The SC has found a substantive element to this clause, that laws must pass a certain threshold to be constitutional. I believe most non-lawyers would agree that the first reading is more reasonable.

If the plain meaning of the text goes against the author's intent, we choose the meaning over intent (especially since originalists put little weight on intent).

5/24/2006 1:37 PM  
Blogger Charlie Hall said...

'only needs to use due process if it wants to deprive someone of life, liberty, or property'

There are very few governmental actions that don't infringe upon liberty or property. (Ironically, that could make the 14th amendment a powerful tool in the hands of anti-government conservatives.) The explicit intent of the authors of the 14th amendment was to specifically to impose federal authority on the states after the civil war.

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