Against Originalism

With the ongoing transition in the Supreme Court, we've been hearing a lot about "originalism" when it comes to Constitutional interpretation. This doctrine, espoused by conservative judges Antonin Scalia and Clarence Thomas, along with much of the American Right, including President Bush, holds that the proper approach to interpreting the Constitution is to be guided by the "original" intent of the framers. It is associated (rhetorically, at least) with "strict constructionism," which stands opposed to the supposedly liberal judicial tendency to "legislate from the bench" by pursuing all manner of social engineering and expanding the scope of the federal government in ways the Constitution does not authorize. As a practical matter, the doctrine of originalism leads to restrictions on the federal government's role in American life (particularly on its ability to help people), and - if the new Supreme Court moves sharply in that direction - it could mean the reversal or evisceration of much of the social legislation of the last half century. Far from the promised "judicial restraint," the originalism of Scalia, Thomas, and their ilk conceals an activist, even aggressive, approach to established precedent that would curtail the gradual expansion and protection of individual freedoms which have been the hallmark of Constitutional jurisprudence since the nineteenth century.

As a theoretical matter, and as a matter of just common sense, originalism is seriously flawed. It sounds good -- for it seems to connect us organically with our founding fathers, and it appeals to our gut preference for the "real thing" over the bastardized knock-off -- but originalism is both unworkable and logically inconsistent. To see why, it is necessary to pull apart its central claims and consider them carefully.

The basic idea is that the intentions of the Constitutional framers - James Madison, Gouverneur Morris, Rufus King, et al. - are enshrined in the document itself, that their meanings are unchanging and eternal, and that the duty of scholars, judges, and justices is to figure out what those meanings are and then apply them to matters of law. The problems with this originalist approach are more complex than can be fully addressed here, but that is all the more reason to identify those problems in their broad outlines. Regular Americans, not just constitutional scholars, need to be conversant in why the judicial philosophy of Scalia and Thomas is misguided.

First, the "intentions" of the framers do not form some kind of monolithic slab. The purposes of human beings engaged in serious political activity are always complex, shifting, various, obscure -- even when they are not represented that way. Get a group of them together, as at Independence Hall in 1787, and the complications undergo what the mathematicians would call "combinatorial explosion." There were many people in that room, many ideas, many motives, many conflicts, many compromises, many shifts of perspective. Which intentions do we go with? Those with which they began the process or those with which they ended it? What about the personal doubts of the framers, even as they signed the Constitution? Should we make room for the views of those figures who were not officially involved in the Constitutional debates, like Thomas Jefferson, but whose views informed the proceedings? What do we with all the bargaining and horse-trading it took to reach consensus? A consensus was achieved, certainly, but about the only thing the framers seemed to agree on (barely) was the need for a stronger federal government than that which had existed under the Articles of Confederation. It is only sensible to conclude, therefore, that when delegates as different in outlook as William Few of Georgia and John Langdon of New Hampshire signed on to the written testament to that consensus, they had very different ideas about how it should actually work.

A second, related, problem concerns how the framers perceived their own intentions and the degree of deference that later generations should accord them. In fact, one of the principles on which there was greater agreement than not was the idea that the Constitution should be a "living document," that it should be able to respond to changing historical circumstances, and that later generations should -- within reason -- apply it flexibly to their particular needs. The founders recognized that they had produced an imperfect, if extraordinary, document and they did not intend for us to be slaves to their worldview. That is why the Constitution allows for amendments, as we all learned in eighth-grade civics class. The framers did not see their intentions as the final word or the only word. And thank God, for else the intentions that produced the three-fifths clause and the fugitive slave clause would still be in force. Those intentions deserved to be superseded by more modern social and constitutional thought. It's called progress.

Let's assume, however, for the sake of argument, that we do want to reconstruct the intentions of the Constitutional framers for guidance on interpreting the law. This presents such a raft of problems that it's hard to know where to begin. But let's start here: Since we can't read the framers' minds, we have to try to infer their intentions, their meanings and their aims, from the words they left us. Immediately, however, we are brought up short by a striking contradiction in the originalist approach. To reconstruct the framers' intentions fully and responsibly, we would have to consult all sorts of writings besides the Constitution: correspondence, diaries, the Federalist papers, retrospective accounts of the debates, and so forth. And what would this reveal? Exactly the kind of chaos that shows how difficult it is to judge intention accurately. So the originalist or strict constructionist imperative is to narrowly limit the act of interpretation to the words of the Constitution itself (where, for instance, there is no written-down "right to privacy"). We are obliged, in short, only to consider what might be called the deconstructive logic of the text - but this is not really an intentionalist method at all. Indeed, it is antithetical to intentionalism because it rules out an investigation of what lies beyond the text. This contradiction between an approach based on what amounts to biographical research and one based on textual analysis cannot be explained away without exposing the political expediency behind much of what passes for "originalist" Constitutional interpretation.

The third major problem with originalism is that it involves a simplistic and misleading view of the nature of language. The meaning of words is not as clear as the originalists would have us believe. The "referentiality" of language, as the linguists would put it, is both historically contingent and intrinsically murky - which means that there is not a transparent and stable relationship between words and the things or ideas they refer to, their referents. In the first place, the meaning of words evolves over time, sometimes dramatically, as anyone who has thumbed through the Oxford English Dictionary can attest. Words such as "queer" (which acquired connotations of homosexuality around World War I) or "web" (whose recent Internet-related meaning now predominates) are obvious examples. But terms of politics and civic culture also evolve over time. Indeed, as Gerald Stourzh has demonstrated in his essay in Conceptual Change and the Constitution (1988), the word "constitution" itself only came to signify "paramount law" in the late 1700s. So while we may think we know what a person meant centuries ago, we have to reckon with the fact that language is dynamic rather than static, and that words are always responsive to their historical and social environments.

Moreover, linguistic meaning is not a simple matter of one-to-one relationships between words and referents. Meaning is ambiguous, subtle, elusive. It emerges from a wide array of psychological and cultural and textual conditions. This is not, let it be said, some kind of postmodern rant. In fact, this view of language arose during the eighteenth century, in the wake of John Locke's seminal insight, in Essay Concerning Human Understanding (1690), that words have no "natural connexion" to things, and that "in their primary or immediate signification, [words] stand for nothing but the ideas in the mind of him who uses them." With a deepening sense of the arbitrariness of words, the eighteenth century began to recognize what Anselm Bayly, in his Introduction to Languages (1758), called the "mazes in language," and to question the received wisdom that language functioned as a mere sluice for reality. Indeed, no less central a figure than the great constitutionalist James Madison, in Federalist no. 37, cited the "cloudy medium" of language as a confounding factor in political discourse. The deliberate straightforwardness of the Constitution, therefore, reflected a desire to clear that cloudiness as much as possible, not a desire to dictate meaning to all subsequent generations. The dry simplicity of the document confirms rather than disproves the framers' belief that their language was an imperfect guide to their meaning.

What all this adds up to, then, is a rejoinder to the claims of conservative originalists and strict constructionists that the job of Supreme Court justice is simply to determine and then follow the intent of the framers as expressed in the text. If that's all there was to it, we wouldn't even have constitutional debates. The fact that we do, all the time, just goes to show that interpreting the Constitution and shaping our law accordingly is a robust, messy, animating process rather than the originalist equivalent of plundering the grave and propping up the corpse of "original intent."

There's one more issue that deserves mention. The conservative constitutional approach of the originalists is akin, both philosophically and practically, to scriptural literalism or fundamentalism. These worldviews are linked by the belief that language transcends place and time, remaining always immutable. One invokes the word of the heavenly father and the other invokes the word of the founding fathers. They are also linked by an excessive deference to authority and by a denigration of the critical faculties that allow us to question authority. This harmony between originalism and Biblical literalism should concern us, because it represents another way - admittedly much less overt than school prayer or intelligent design - in which religion is being smuggled into our national politics and civic culture. Hopefully, just as the "higher criticism" displaced literalism in the nineteenth century as the dominant school of Biblical exegesis, so a more sophisticated legal philosophy will stymie the rise of this latest, equally pernicious literalism.

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