The Original Con

It looks like Neil Gorsuch is going to sail through the confirmation process with little difficulty, despite Al Franken’s best efforts.  This is at least partly because no one seems to know quite what to say in response to claims that he is an “originalist.”  That is, he supposedly will interpret the Constitution in accordance with the meaning of the text, rather than to accommodate his (or society’s) political/moral convictions.  

     On the face of it, this seems like an unassailable approach; I have argued elsewhere that it is the correct approach to Constitutional (and statutory) interpretation.  What else, after all, really could ground an interpretation?  If it is not the meaning of the Constitution that is supposed to guide judicial decisions, what is?  If it is the convictions of judges, or the winds of politics, or some vague notion about the Constitution being a “living” document, then our law is likely to lack all consistency and stability, because all these things are ephemeral and constantly in flux.  But consistency and stability rank high among the virtues of a legal system that a Constitution—a written document with a determinate meaning—is supposed to ensure.  

     But often originalism is just a con to avoid acknowledging the clear meaning of the Constitution.  This works by moving subtly from the claim that it is the meaning of the text that we must discern to the claim that this meaning is revealed by the practices of the founders.  Thus, what was permitted then must be permitted now.  What was prohibited then may be prohibited now.  And, what is perhaps most important in contemporary political culture, what was not protected then cannot be Constitutionally protected now.  

     So, for example, since capital punishment was common at the time of the founding, it cannot be unconstitutional now.  Since gay marriage was not recognized then, it cannot be a requirement of the Constitution that the law recognize it now.  Since the Constitution does not explicitly mention privacy, it cannot be the basis of other rights, such as the right to abortion or birth control, or the right to engage in homosexual practices.  And so on.

     This is a thoroughly wrong-headed way of understanding the meaning of the Constitution.  There are many reasons why this is so; here are three that I think are particularly important.

     First, this is a really silly way to think about the meaning of a constitution, whether ours of that of another nation.  Most constitutions, and certainly that of the United States, are not written to codify the way things are; they are written to articulate a moral vision of a society and to design a government that can realize that vision.  This is the meaning of Ben Franklin’s characterization of the founders’ work as “A republic, if you can keep it.”  A republic is a form of government grounded on certain values, and the realization of this ideal is a difficult and ongoing effort.  

     Second, this way of thinking has implications that might prove troubling to the very people who praise it.  What, we might ask, do the practices of the founders’ era tell us about the meaning of the 2nd Amendment?  Militia calls represented something very like registration of gun ownership.  Laws that prohibited carrying concealed weapons or carrying weapons in public places were common.  And it was not until the 1970s that anyone thought to question the constitutionality of this.  (I discuss this in more detail here.)  I doubt that there are very many self-styled “originalists” who would favor the return of such laws.

     Third, this approach is not faithful to the text of the Constitution; it is not even useful for determining the meaning of much of the Constitution.  Much of the Constitution is written in very abstract language, invoking concepts—freedom of speech, religion, and association, equality, due process—that are thoroughly contestable.  The people of the founders’ era did not agree on their meaning, and the practices of the various state and local governments were not consistent regarding many matters regulated by the Constitution.  The only way that we can discern the meaning of these concepts, and the Constitutional clauses that invoke them, is to engage in moral discourse ourselves.  We must inquire what constitutes freedom, equality, due process, and so forth.

     It is this feature of the Constitution that has enabled the United States to make whatever moral progress it has made.  A constitution written by and mostly for white Christian men invoked moral concepts that clearly apply to other people as well.  The inevitable political pressure by these other people has been a crucial driver of moral progress.  One unrecognized group after another—women, blacks, homosexuals, to name just a few—have stepped forward to demand the legal protections necessary to make the Constitution’s promises a reality for them.  And to the extent that these demands have been met, it is not because we have ignored or abandoned the Constitution.  It is because we have come to understand that the Constitution requires it.

     There are plenty more groups waiting in the wings for their turn.  It is only the recognition that the Constitution is a moral document, one that requires moral discourse amongst the citizenry, that will give our political institutions flexibility to navigate this future.

     I have not done enough research to say with certainty that Gorsuch is one of these narrow and crabbed originalists who believes that the Constitution froze things in time.  But what I have read, and what I have heard during his confirmation hearings suggests that he is.  And if he is, he is not going to be much use in crafting a political culture that can accommodate the diversity of this country.

The Constitution Speaks for Itself

Confirmation hearings for Neil Gorsuch, Trump’s SCOTUS nominee, begin on March 20.  There will be lots of discussion about how he would decide particular cases.  And the public discourse about this will reference a lot of obscure notions about Constitutional interpretation—originalism, original intent, strict construction.  And these notions are often associated, quite incorrectly, with Justice Antonin Scalia.  Indeed, it is Scalia who points out what is wrong with the way many conservatives understand Constitutional interpretation.

     Justice Scalia calls his own theory of Constitutional interpretation “textualism,” which he characterizes as follows:  “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably to contain all that it fairly means.”  And Scalia is quite adamant that “all that it fairly means” refers to the original meaning of the text, and not at all to the intent of the legislators.*

     There are numerous reasons for rejecting original intent or strict construction.  First, it is entirely unclear that legislators, whether the founders devising the Constitution or other legislators enacting more mundane laws, actually have any collective intentions.  (What, for example, might a merchant from New York and a plantation owner from North Carolina have jointly intended to accomplish by the various clauses of the Constitution?)  Second, it is not entirely clear how we would determine what legislators’ intentions were.  

     And strict construction is often just an excuse to claim that everything should remain just as it was when the Constitution was adopted, however much the world may have changed:  anything which was illegal then must be illegal now; only practices protected then are to be protected now. But notice how odd this claim is: the framers, after struggling for months to articulate a set of moral guidelines for the governance of the country, emerge from their convention, look about, and discover that the institutions and practices of the country are already in perfect accord with these principles.  No adjustment is needed.

     On the other hand, we know exactly what is the text of laws that are enacted by legislators, and we have the intellectual tools and resources to determine what these words meant to those who embraced them.  There is no better example of how to do this than Scalia’s own majority opinion in DC v. Heller.  Scalia draws on linguistic, historical, and philosophical sources to explicate the meaning of the 2nd Amendment in a way that allows it to be applied to a specific contemporary case.

     But what does it really matter, whether or not we are faithful to the original meaning of the text?  Why should we be bound by what a bunch of dead white guys said a long time ago?  Isn’t the real strength of the Constitution that it is a “living” document that “evolves” to meet our changing needs?  The answer to these and like questions is to be found in the concept of the “rule of law.”

     Consider the definition of “rule of law” proposed by the World Justice Project of the American Bar Association:

     1. A system of self-government in which all persons, including the government, are accountable under the law

     2. A system based on fair, publicized, broadly understood and stable laws

     3. A fair, robust, and accessible legal process in which rights and responsibilities

based in law are evenly enforced

     4. Diverse, competent, and independent lawyers and judges

     This definition makes it clear enough why we should value the rule of law--it is an ideal that stands as a bulwark against arbitrary and capricious exercises of power by those who govern us.  And each of its four elements could readily be invoked as a criticism of contemporary US political culture.  Our police, prosecutors, elected officials, and so on aren’t accountable for much these days.  Our laws are often quite unfair, impenetrably obscure, and rendered unstable by the perverse interpretations adopted by those who administer them.  Accessibility depends greatly on financial resources.  The independence of the judiciary is under attack at both the federal and state levels.  Our Constitution, any well-ordered constitution, can play an important role in resisting these corruptions of the rule of law.  But this only works if it is understood to have a determinate meaning, a meaning that must be respected by those who seek a constitutional imprimatur for their policies and practices.

     Further, textualism does not freeze our laws and rights in the past.  It is the business of courts to apply the Constitution to contemporary issues; when the world changes, so will the mode of application.  Capital punishment provides a good example of this.  The 8th Amendment prohibits cruel and unusual punishments.  Justice Scalia, ignoring his own principles, argued that the fact that capital punishment was common at the time of the adoption of this Amendment means that it cannot be considered cruel and unusual.  A consistent textualist would point out that our understanding of human psychology has improved our understanding of cruelty, and that the practice of capital punishment is becoming very unusual amongst modern societies.  The meaning of the Constitution hasn’t changed, but the world has.  And. thus, so must our application of it.

     But even this doesn’t fully capture the complexity of Constitutional interpretation.  Constitution-making is a moral enterprise; many of the clauses of the Constitution invoke very abstract moral principles as the ground of our system of governance.  The meaning of such concepts as “due process,” or “equal protection,” or “free exercise” cannot simply be read out of some historical dictionary; to discern the meanings of such terms, we must undertake a process of moral inquiry.  An understanding of the history of philosophy can give us a range of plausible interpretations–and only a range because the framers had no collective understanding of these principles.  But we, here and now, must defend one or another of these interpretations as the best understanding of the principle at issue.

     To put the point a bit differently:  moral concepts like those invoked in the Constitution are intrinsically contestable; we today do not agree on their meaning, and neither did the framers.  That means that our best understanding of them might well differ from the understanding(s) that the framers had; indeed, our understanding might be better.  This possibility would certainly not come as a surprise to many of the framers.  Insofar as they were Enlightenment thinkers, they embraced notions of progress, including moral progress.  By invoking contestable moral concepts, the framers left us no option but to do our best to determine just what these concepts mean.  The views of the framers can certainly guide our efforts.  And, as part of the ongoing moral discourse that give moral concepts their meaning, they can set boundaries.  But the discourse is ongoing.

     Don’t be misled.  What we really need to know about candidates for judicial appointment is not how they would decide a particular case, but what principles would guide their reasoning.  And when candidates or their defenders start talking about strict construction or original intent, they simply reveal that they don’t understand the Constitution.**

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     *Justice Scalia develops his theory of interpretation in A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ: Princeton Univ. Press, 1997).  All references are to this volume.

     **For anyone who is interested, here and here are longer essays on the complexities of Constitutional interpretation.