Sunday, June 25, 2006

Originalism Explained

In a book review in the most recent edition of the Yale Law Journal, Michael Stokes Paulsen explains and defends originalism. In short originalism is

The enterprise of constitutional interpretation—of discerning the document’s meaning—consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community.
Paulsen recognizes that sometimes the original meaning will be indeterminate, in that there will be a dispute over what best understanding of the clause was at the time it was written. What do we do then?

[I]f the meaning of the Constitution’s language fails to provide such a rule or standard—if it is actually indeterminate (or under-determinate) as to the specific question at hand—then a court has no basis for displacing the rule supplied by some other relevant source of law applicable to the case (typically, a rule supplied by political decisions made by an imperfect representative democracy).
In other words, it the Constitution is unclear, the statute stands. Paulsen is clearly combining his originalism (that is a search for original meaning) with a conservative bend that defers to the popular branches of government. The problem with that view is that almost all interpretations are subject to dispute (many of them good faith). There is rarely universal agreement about interpretation, and while the original meaning might be attainable in an epistemic sense, practically there will always be disputes. So Paulsen's methodology, if taken to its extreme, would render judicial review null in most cases.

Paulsen also adheres to a "weaker" form of stare decisis that calls for overturning cases that contradict the original understanding, no matter how established those cases. In that regard he agrees with Randy Barnett, but disagrees with Antonin Scalia and Robert Bork, who both have judicial experience and hold a slightly more pragmatic view of originalism.

Despite these problems, Paulsen's article is very strong. It lays out and defends the most common form of originalism and distinguishes it from the straw man version liberals propound. He also does a solid (although a slightly overreaching) job of showing how originalism will not lead to a parade of horribles by radically changing the constitutional landscape.

After reading this review, I have to get my hands on Akhil Reed Amar's America's Constitution : A Biography.


Blogger Charlie Hall said...

'the election—once—of an anti-slavery northern, sectional president who received less than
forty percent of the popular vote and went on to free the slaves.'

Minor quibble: It was the 13th Amendment that freed the slaves; it was not ratified until after Lincoln's assasination.

'Amar’s vision of alternative ways in which the Framers might lausibly have dealt with
slavery, limiting its expansion geographically or temporally, while still forging a more perfect Union in the 1780s, provides a compelling illustration of the
Framers’ lack of perfect constitutional foresight, even though the solutions were right in front of them and politically attainable.'

I'd love to see that explanation. The sad fact is that the model existed and in fact was agreed to by the Continental Congress in the Northwest Ordinance of 1787 (passed while the Constitutional Convention was in session). It had a somewhat less broad Bill of Rights (for example, a free exercise clause but no establishment clause) and prohibited slavery:

However, when the Congress under the new Constitution met and organized the territories that now contain all of Tennessee and most of Mississippi and Alabama, they neglected the prohibition of slavery.

'his treatment of the Ninth

Has ANYBODY produced a satisfactory treatment of the Ninth Amendment?

'The adoption of a Bill of
Rights does not somehow repeal by implication the natural rights principles embraced in the Declaration of Independence.'

The trouble with natural rights is that there is no explicit limit to them. As mentioned in my previous post, the Texas Republicans found a right to parenting.

'Wouldn’t it be better to teach “constitutional law” by teaching about the text of the Constitution, rather than focusing single-and-narrow-mindedly on
Supreme Court doctrine in cases that, with alarming and increasing frequency, have precious little to do with the document itself?....
a good deal of our constitutional practice today is not true to the
meaning of the Constitution, and the fact that our scholarship lacks the brains, the heart, or the courage to confront (and correct) this straightforward

This is the argument that the Sadducees could have made against the Pharisees.

6/25/2006 9:37 PM  
Blogger Nephtuli said...

Has ANYBODY produced a satisfactory treatment of the Ninth Amendment?

Barnett's explaination is pretty good (and very liberal in the classical sense). Paulsen's position is similar to Bork's, that it was designed to negate constitutional preemption of state given rights.

The trouble with natural rights is that there is no explicit limit to them. As mentioned in my previous post, the Texas Republicans found a right to parenting.

True, and Paulsen agrees with you.

This is the argument that the Sadducees could have made against the Pharisees.

Also true, but that argument is not flawed in all cases and is pretty strong here.

6/26/2006 10:57 AM  
Blogger Shlomo said...

Originalism = Jurists who believe they have incredible psychic abilities that enable them to not only read the long since decomposed minds of the Founders, but debate them and change their opinions through clever argumentation.

6/28/2006 4:45 PM  
Blogger Nephtuli said...

Originalism = Jurists who believe they have incredible psychic abilities that enable them to not only read the long since decomposed minds of the Founders, but debate them and change their opinions through clever argumentation.

My G-d, how many times do originalists have to make it clear that their methodology has nothing to do with reading minds?

6/28/2006 10:47 PM  
Blogger David Kirschner said...

Activism = Jurists who believe they have incredible psychic abilities that enable them to not only
read the long since decomposed minds of the Founders, but debate them and change their
opinions through clever argumentation.

Seriously though, SL Aronovitz, you touched on a conundrum. That is, when we accuse judges
of activism, it is usually because we don't like the decision and believe that it was crafted, or
tailored, merely to justify a desired outcome. But when we like the ruling, all of a sudden, we
don't seem to have a problem with the tailoring. Quite cynical, but frankly, our judicial system is
inextricably interwoven with the political process that I'm not sure it can be explained any other
way. I do think that a "conservative" (not necessarily correlated to political conservatism) jurist
would be more likely to establish a precedent by reasoning that a statute or rule goes too far,
hence a propensity to what the Constitution states or can be narrowly implied, whereas a "liberal"
(also not necessarily correlated to political liberalism) jurist is more apt to rule that it doesn't reach
far enough and must be extended which is more of a "fundamentalist" view (even if it isn't in the
constitution or implied, if it is that important, it will be treated as if it was). Such an approach is
rooted, as Nephtuli pointed out, in what is known as “federalism” - that the constitution was
drafted by the states to strictly limit the federal government from unduly interfering with the
states’ rights to govern themselves. The states were very concerned that the role of the federal
government would be too intrusive and wanted to protect themselves and their citizens from
federal regulation except when absolutely necessary. Of course, when it came to their infringing
on the rights of their own citizens, they felt they were free to do anything. That changed with the
passage of the 14th amendment which bound the state governments by the same protections of
rights that the federal government was bound by.

Aside from the logical difficulties associated with either approach, such a distinction has a major
flaw. It presumes that any jurist, liberal or conservative, will rely on their legal analytic approach
to constitutional interpretation and precedence as determinative of the result. Unfortunately, that
is not usually the case. And I'm not convinced that we could even achieve that if we tried. Our
system of government is all based on political views and other than improving the quality of those
who become judges, I don't see how it can be changed. On the plus side, I have personally been
involved in cases where a judge, having clearly made his/her personal view or opinion known,
have nevertheless put it aside and ruled exactly - or their reasonable interpretation of - the
controlling precedent. This, however, appears to be more an exception then the rule (no pun

As a practical matter though, I don't find anything pragmatic about either a strict originalist or
fundamentalist. One who only goes by the actual written word would have to hold that
everything under the sun was considered and, if appropriate, included otherwise it doesn't exist
has obvious problems. On the other hand, a fundamentalist view essentially moots the
constitution because such view is going to include things on the basis of its importance. In other
words, if it is considered "fundamental," then it will be treated as if it were in the constitution,
even though it isn't. So, the only pragmatic approach is to start with the plain meaning of the text
and include anything that can be reasonably or fairly implied from it. Of course, what you're left
with is a debate over what is "fairly implied." That then leaves it open to one jurist's interpretation
vs. another and as I said, will be directed by their own approach to legal analysis. The best we
can hope for is that they engage in such analysis as free from political influence as is humanly

Incidentally, I teach some constitution and my practice regularly involves it as well (mostly 4th , 5th
, & 6th amendments) and Charlie draws an apropos analogy with the Sadducees and Pharisees.
There is no way to teach it without analyzing both the language and the Supreme Court decisions,
if for no other reason than to disagree and critically analyze their decisions or opinions.

6/29/2006 9:52 PM  
Blogger Nephtuli said...

DK, I agree that political influences play a role and that sometimes there are "open spaces" as Richard Posner calls it where the court is bound by no precedent. Moreover there is also the question of how to construe precedent, so in reality precedent rarely binds.

Originalism is designed to mitigate the indeterminacy problem. It's not 100% successful but it works to a degree and better than any other method of Constitutional interpretation I've seen.

6/29/2006 11:33 PM  
Blogger David Kirschner said...

Absolutely. And there are even legitimate departures from precedent, such as when there is no governing authority, the precedent is outdated by technology or otherwise and occasionally, a court legitimately believes a precedent is wrong.

6/30/2006 10:38 AM  
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