An excellent example of the vagaries of historical analysis lies in the passage Matt Yglesias quoted from Chief Justice Rehnquist in Wallace v. Jaffe. Rehnquist suggests that Madison's proposal of an amendment to insert the word "national" in front of "religion" shows Madison's intent in drafting that portion of the amendment (although the Chief Justice gives no weight to the fact that the wording considered by the House was different than that he proposed). Another "originalist" might, given the same objective facts, come to the conclusion that, because the House rejected that proposal, it must have wanted the language to mean something different than what Madison envisioned, while yet another might argue that the committee felt the language was unnecessary--that it added nothing to what they understood the clause to mean. So we wind up right back in the place Justice Scalia wanted to avoid--a place where the individual predilections of the decision maker influence the outcome of the case.

Your criticisms seem to be directed almost entirely against a theory of original intent. Justice Scalia is as much an opponent of original intent as anybody, for all the reasons you cite and more (see his A Matter of Interpretation for details). For Scalia, it is the original meaning of the text, and not the original intentions of its framers, that controlls.

So, the fact that originalism can be abused renders the entire theory suspect, eh? I don't think so. If you knew anything about constitutional history, you would know that the views of Jefferson and Madison as expressed in Everson clearly did not reflect the original understanding of the First Amendment's Establishment Clause (see, e.g., Elliot's Debates). Rehnquist's dissent in Wallace makes this abundantly clear. That the Supreme Court chose to use historical "evidence" in Everson in a manner contrary to the original meaning of the Establishment Clause is not an indictment of originalism, it is an indictment of a Court that abandoned its interpretive function in Everson and engaged in judicial lawlessness. Everson is an abomination.

An originalist does not care what one person (no matter how well known) interpreted a constitutional provision to mean. That view might be relevant, but only to the extent it falls within a convincing mosaic of historical evidence that demonstrates how the constitutional provision in question was generally understood by the people alive at the time that provision was ratified.

Oh, and I meant to ask you: If you are not in favor of originalism, what's your alternative?

Josh

Oh yeah, this wasn't really about Scalia. Someone just made a comment in about the supposed objectivism of originalism, and it struck me as wrong.

Freddie

Yo do the same thing you Rehnquist did: you chose whihc section of history you wanted to concentrate on, and applied your interpretation to it. There is nothing objective about it. As you saw from the first comment here, there is more than one interpretation of Madison's arguments. And, frankly, Rehnquists dissent is not terribly convincing to me.

I don't have a fancy name for what I prefer. its not too compicated: start with the understanding that the Constitution is a product of the compromise between individual liberty and state power, and then look at the words.

Not all history is equally persuasive. If I find that a handful of person believed that the First Amendment allowed people to publish dirty magazines as an original matter, but the vast majority of people alive at that time thought otherwise, which view should prevail? What your looking for is the original understanding of the majority of people alive at the the time of ratification. Moreover, many of the clauses in the federal Constitution contain common law terms of art with rich histories that show exactly how the words in question were understood at the time of ratification.

Freddie

Except that you can almost never show that. As witnesses above, what you took to be obviously true was shown to be not so when other people looked at it. The key word here is persuasive. What persuades me may not be what persuades you. Originalists claim that there method is objective, when it is clearly not. And those rich histories, as you should be aware, are very often conflicting and ambigious. The Constitution was a giant compromise, cobbled together to be able to win enough votes to get it passed. Phrases and meanings were strung together to paper over differences, and clauses that meant one thing to one group meant another, sometimes opposite thing to another. originalism is no more objective than any other method of interpreting the Constitution, and, frnakly, because it allows so much lee-way in its methodology, I distrust it.

Whatever faults originalism may have, it is better than the alternative: rule by judicial fiat. At least with originalism there are objective parameters from which one must operate. When you stray outside those parameters, you get decisions like Lawrence and Roe, which are simply horrendous.

Kevin,

I'm curious to hear more about the alternative you offer to originalism. To be sure, originalism has its faults, but if it turns out to be the best of the available alternatives, then judges ought to try to apply an originalist methodology as faithfully as possible. You suggest that judges "look at the words." And interpret them in light of what? The words used in the Constitution, especially those of the original articles and the Bill of Rights, are far from 'plain English' and simply cannot be understood without an appreciation of history and the fact that, as Freddie points out, many of them were common law terms of art with very specific meanings to the people at the time of ratification. Looking at the words will leave things more up in the air than looking at history; once a judge decides the words are ambiguous, what do you propose he or she should do? And, perhaps most fundamentally, do you beleive that anything in the Constitution has a fixed meaning, or does it morph to fit the proclivities of society from age to age?

The fact that it is possible to apply originalism in an unfair, biased manner or to use originalism to advance a personal agenda is not an indictment of originalism, but rather the judges who misuse and bastardize it. To me, the entire Constitution becomes meaningless if judges interpret it as a "living document." To paraphrase Scalia's observation in A Matter of Interpretation, if the Constitution's meaning changes from generation to generation to reflect what 9 justices feel it "ought" to mean, it ceases to have any meaning at all.

Freddie

1)Lawrence is a brilliant decision, perfectly in line with the constitution. The Bill of Rights specifically does not limit the rights we posses, and it is inconceivable that state control of your personal private sex life is compatible with a limited government and strong protections for individual liberty - as the Constitution recognizes by its limits on government intrusion into personal life.

2)You have not come close to convincing me that originalism is any more objective than any other method of interpretation. Clearly, using history is just as subjective as using the text, because history is so broad and so ambiguous.

Pete

When you are talking about definitions, and only about definitions, then you have a point. Looking at the words leaves things no more up in the air than looking at the history. In fact, seeing as one can come up with different results on the same topic using the same history, looking at the words may, in fact, be a better choice. Rehnquist rules by fiat just as much as any judge you would like to state when he picks and chooses one interpretation of one set of facts to bolster his personal preference for state involvement in religions. There is no objectivity ion originalism. None. There are only judges playing at being historians so that they can claim the "past" proves their personal preferences. I fail to see the value in that, I am sorry. Originalism is not objective, and it assumes a sort of reverence for the opinions of the Founders that Founders themselves did not assert. You are proposing a dead worthless document, where judges cannot see the obvious fact that a Constitution that protects you from having troops quartered in your home and your possessions searched without warrant is a Constitution that recognizes that privacy is an essential part of liberty. The genius of the Founders was that they knew enough to know that they did not know everything.

Frankly, a judge that has a defensible theory of the broad themes of the Constitution, and looks to see if the case before him is addressed specifically in the constitution, and then by those themes, and tries to fit the case into those specific instances or themes is much more likely to rule constantly and adhere to the nature of the constitution than one who merely picks and chooses bits of history to support whatever prejudice he happens to have - which is all orginalism seems to be.

Kevin,

Your points are well-made and well-taken, but I still think we're mostly talking past each other. I agree that Rehnquist in particular (I don't consider him an originalist, by the way) and Scalia on occasion selectively use history in their opinions. Scalia's concurrence in Adarand, for instance, is markedly devoid of any reference to the original understanding of the Fourteenth Amendment. Still, pointing to a handful of "bad" opinions by justices using questionable history does not make originalism illegitimate nor does it mean that "there is no objectivity in originalism." The Planned Parenthood plurality made a mockery out of stare decisis. That doesn't mean that stare decisis is dead or illegitimate.

As far as the reverence for the Founders point, originalism does not depend upon a belief that the Founders knew everything, or thought they knew everything. The understanding of the founding generation is important only because they are the ones who ratified the Constitution. What they ratified and hence established as the "supreme law of the land" is THEIR UNDERSTANDING of what the words in the Constitution and the Bill of Rights meant. And it is that understanding that legitimate constitutional interpretation should seek to uncover and by which judges should be bound.

I don't think that interpreting the Constitution according to originalism makes the document dead and worthless, as you say, but is instead the only way to give it real meaning. What exactly are the "broad themes" of the Constitution by which you believe judges should be instructed? From where are these themes to be divined? The words of the document, in and of themselves, simply aren't enough. I don't think you ever really respond to the fact that many of the words and phrases in the Constitution are terms of art, or are words that had different meanings when the Constitution was written and ratified. They cannot be understood without reference to history. And once you break with history, I don't see what other guidepost there is, other than some theory about what is "good policy" or a "fundamental right." The justices on the Supreme Court often have good ideas in terms of social policy, but implementing those ideas is not their job.

As far as privacy goes, it's simply not true that we have an absolute right to privacy under the Constitution. Countless laws invade our "privacy," but the balance struck by the Framers (and every generation that followed them) was to allow the government to invade our privacy when the interest is significant enough. Since I think we all know that "privacy" in constitutional debates really means abortion, I must say that I can't see the obviousness of abortion as a constitutional right, especially when it had been illegal from the founding all the way through Roe. See McCulloch v. Maryland for a discussion of the deference due when ALL the branches of government treat a law or an action as legal for a long period of time.

Pete

Yes, I don't think we are going to agree on much here, but let me address a couple of points.

First, the whole thing started with the assertion that originalism is somehow more objective than other means of interpretation. I can find no support for that contention in either practice or the theory. The simple fact of the matter is that originalism provides no meaningful guidance for actually handling the vast discrepancies in the way the Founders thought about government and the Constitution: it simply leaves it up to the judge to use his subjectivity to decide where and on what point the principle should turn.

"And it is that understanding that legitimate constitutional interpretation should seek to uncover and by which judges should be bound. "

Why? The Bill or rights itself tells us that its is not a complete list. Clearly, there are rights guaranteed to American citizens not in the bill of rights, because the bill of rights says so. How are we to determine those rights if we must use the opinions of people who admitted that they did not know what all the rights were? The Constitution is check full of compromises. Why does looking at the compromises in isolations and through the prism of the very people who could agree on the thing in the first place provide me with an understanding superior to looking the compromises in the context of the entire Constitution? Because the Constitution is a creation of human beings, its has gaps where the real world was not anticipated. Why should I trust the opinions of people who failed to foresee the gaps in the first place? It is no secret that the Founders did not alive up to the lofty ideals of the Revolution and Constitution. Why should I give special weight to the opinions of men who failed to live up to their own ideals?

"The words of the document, in and of themselves, simply aren't enough. I don't think you ever really respond to the fact that many of the words and phrases in the Constitution are terms of art, or are words that had different meanings when the Constitution was written and ratified"

You are correct as far as definitions go, but not connotations. Some of the phrases may be terms of art, and terms of art on purpose, to paper over differences and allow flexibility. If the connotation has changed in the society, why should that society not use those connotations? "Cruel and unusual" means things different now than they did then, and that is a good thing. Societies grow and change, just like people, and they learn from their experiences, just like people. By refusing to acknowledge that, originalism can only create a stagnant Constitution that leaves the people of the society feeling that it has no meaning in the present day.

And why are the words not enough? In the context of the entire work, they are very clear in their intentions. Frankly, it is more legitimate to look at their work in its totality to understand what they were trying to do then to take small pieces of it, devoid of the context of the whole work, and try to divine what people thought about the compromises and conflicts two hundred years ago. To steal a phrase, the Constitution is the thing and the whole of the thing. The Constitution is the intent of the Founders, and the only piece of history that should matter, because it is the only thing we are sure, the only thing we can be sure, they meant. Taken in whole, the Constitution provides sufficient guide to itself, I believe.

"think we all know that "privacy" in constitutional debates really means abortion"

No, actually, I don't think that's the case. Privacy means the government cannot tell me who to sleep with, or who I cannot sleep with, or that I cannot use sugar in my coffee with proving that such limitations are justified by a compelling need. its not just about abortion, at least to me, its about the core of liberty - the right to live my life as I see fit.

"And once you break with history, I don't see what other guidepost there is, other than some theory about what is "good policy" or a "fundamental right." The justices on the Supreme Court often have good ideas in terms of social policy, but implementing those ideas is not their job"

No, I see this completely differently. A judge at confirmation should be forced to lay out what he thinks the themes of the constitution are, and in what circumstances he believes the Constitution gives weight to the rights of the government, and where it gives precedence to the rights of the individual. In that way, the people voting have a good idea of how the Judge views the Constitution. An orginalist judge, since there is no mechanism for determining what history means except for the subjective opinion of the judge, can offer no such assurances. No one can know how he might lean, because no one can know what he might find in history. It is, frankly, a recipe for the worst kind of abuses - particularly when you consider that judges are not an can never be historians.

You are right, we will probably never agree on this issue. We obviously have very different outlooks, but it has been enjoyable. Thanks for the interesting discussion.

Time to throw my hat into the ring. I will say that this is a tough one. I don't think that original intent can be completely disregarded when interpreting the constitution, but at the same time, modern realities must also be considered.

Church/State separation is a fine example. A narrow, literal reading of the First Amendment basically says that the Federal government may not establish a state religion, and that the federal government may not restrict religious practice. But in reading the writings of the framers, particularly Jefferson, Madison, and to a lesser extent Franklin, it's clear that they intended a lot more than that. Are we to completely disregard that intent?

Pete, you say that "privacy" in constitutional debates means "abortion," and I submit that this is simply not true. Illegal searches are debated FAR more often than abortion. It may just be that abortion is your particular hot button issue. (For the record, although I'm staunchly pro-choice, I would agree that protecting abortion strictly as a privacy concern is a thin argument).

As to whether or not the right to privacy (in the broad sense) is guaranteed by the Constitution, I'd direct your attention to Amendment #9. Just because a right isn't explicitly enumerated in the Constitution doesn't mean that the right doesn't exist, or isn't protected.

The argument could also be made that many of the laws which undermine our privacy should be declared unconsitutional under Amendments #4 and #10.

Of course, under the current administration, Amendments 4-6 and Amendment 8 may as well not exist.

Well, I don't know if anyone is even reading this thread anymore, and I'm pretty sure that no one is changing his or her mind, but I wanted to toss in a few final thoughts.

First, in response to tgirsch:

As far as religious freedom, what the First Amendment, read literally, says is that the Congress may not establish a national religion, nor may it interfere with state-established religions. Almost every, if not every, state had an established religion at the time the Constitution was ratified, and no one argued that these religions needed to be dis-established because of the First Amendment. Reasonable enough, since the First Amendment, at that time, restricted only the federal government.

As for the 'intent' of Jefferson, Madison, and Franklin, I don't propose to completely disregard their intent, but judges need not be bound by it, nor even find it very persuasive. Jefferson's 'wall between church and state' comment, as it is reprinted in opinion after opinion, is taken well out of context. More fundamentally, original 'intent' is not important. The original understanding of those who ratified the Constitution is what counts (in my opinion), so what Jefferson, Madison, and Franklin felt about religious freedom is not dispositive.

As for 'privacy,' illegal searches are debated in the courts far more often because they come up in criminal suits, which outnumber abortion-related lawsuits by a gigantic amount. If that's not what you meant, then I have to respectfully disagree. The debate about the confirmation of the next appointed justice, whomever he or she may be, is already being focused on abortion/privacy. It will have NOTHING to do with the nominee's stance on 4th Amendment jurisprudence. Those on the left have and will continue to frame the debate as one of 'privacy' and 'being left alone.' That doesn't mean it's not really about abortion.

I don't understand what Amendments 4 and 10 have to say about laws that infringe on our privacy, unless the law in question has to do with an unreasonable search or seizure of one's person, home, or effects or is a federal law. The Tenth Amendment reinforces the idea that the federal government is one of limited, enumerated powers. It is no limitation whatsoever on state power.

I do not have the space to get into a discussion of the Ninth Amendment, but only have two observations. First, the standard view of the incorporation of the Bill of Rights against the states is that the Fourteenth Amendment incorporated the first eight amendments. Not the Ninth, and not the Tenth. Why? Because it would make no sense to do so. They're both essentially disclaimers to placate the Anti-federalists. That's the originalist part. Here's the prudential part: the Ninth Amendment cannot sensibly be understood to guarantee 'privacy' writ large. Otherwise, 98% of ALL laws would have to be justified by a compelling interest. Government would grind to a halt. If you want to locate 'privacy' in the Ninth Amendment, you have to talk about specific kinds of privacy (like the right to put sugar in your coffee, to borrow an example).

Kevin:

I think the objectivity point depends a great deal on whether you think originalists are looking for the intent of the framers, or the understanding of the ratifiers. I think originalists do, and should, attempt to determine the latter. Is there ever a 100% clear answer? Sometimes, yes. More often, no. Sure, history operates in shades of gray, and sometimes judges will have to work with an incomplete or even somewhat contradictory record. Does it provide a more objective constraint for judges than discerning the 'overall meaning' of the Constitution? I think it clearly does. You're concerned that judges will manipulate history to suit their personal whims? Why will the 'overall meaning' of the Constitution provide a more stringent and clear guide? Obviously the document is ambiguous, and its purposes and aims are myriad. If the question is about objectivity, I think history wins out.

I don't mean to say that constitutional provisions should be read with microscopic specificity. I agree with Akhil Amar's intratextualism, for example, which entails a reading of the document 'as a whole.' I don't think it's legitimate to look for penumbras and then call them constitutional rights. One quick side point--reading the overall document, it clearly calls for limited federal government and great deference to the states. Do you agree, then, with Lopez v. United States and repudiate the New Deal Court's expansion of the commerce power?

As for privacy, it's hard to respond because I don't know what part of the Constitution you believe grants the right to privacy. If you think it's the 14th Amendment, then I'd say the government is allowed to infringe on your liberty as long as it grants you due process of law. I've written too much already and don't want to bore you with my thoughts on substantive due process. Suffice it to say that I have a tough time believing that 'due PROCESS of law' has something to do with the justices' subjective feelings about the privacy right being asserted.

As far as confirmation, a judge could talk about the 'themes' of the Constitution all day and leave the Senate with no clue of how he would interpret the document. I just don't agree that history is as unclear as you think it is. Maybe analysis of history won't lead to a 100% incontrovertible yes or no answer. But it will lead to most plausible answer, a clear and convincing answer, and an answer that is justifiable in terms of objective facts. In previous posts, you and others debated the merits of Everson and Wallace. The fact that Black and Rehnquist came to opposite conclusions on the same issue says that one of them is wrong. If you look at the history, as someone did earlier, I think it will show that Black's version is bogus. Fine...Black used bad history. And one can argue that because of objective facts that demonstrate that the weight of historical evidence is against his view. I don't know what other objectivity you want.

Pete

Just to be brief: Black did not use bogus history, Rehnquist did. I don't think I can sum up what I beleive is the fallacy of originalism better than that. You cannot argue objective facts are on Rehnquists side becasue they are not. To ignore the background that Black took into account and Rehquist ignored is not good history, or good sense. You obviously disagree. There is no way in originalism to reconcile that disagreement. We must make subjective choices. And the range of choices is so great as to make as to make extrapolating how originalism would answer the question almost impossible.

As for themes, yes, its possible that a judge could mislead Congress. So could an originalist. But with a judge who answers specific questions about how and why he would respond to cases provides a much better answer than one who simply says "i will do what I think history tells me to do."

I wont get into the privacy argument, because its simply too long, and off the topic.

Pete:

Perhaps your experience is different from mine, but I haven't heard "privacy" used as a code word for abortion in the context that you apparently have. In holding up judicial nominations, in cases like Miguel Estrada and Priscilla Owen, the left generally openly brands them as "anti-choice" (clearly referring to abortion), and not as "anti-privacy," as you seem to be suggesting. In some cases, such as Pickering, it has gone well beyond abortion and spilled over into a generally abysmal civil rights record across the board.

Regarding the "wall of separation" quote, I don't think it's taken as far out of context as you seem to believe. In fact, I feel that in context, it strengthens the argument for total separation. It does this by pointing out that such separation is to the benefit and protection of the church as much as it is to protect the state.

If history can indeed be used as a guide, as you say it can, then it's clear that the founders' experience of church/state mixing in old Europe was that of oppression. And that the intermingling of church and state are to the detriment of both.

As for the "no state religion" at the state level, this is why Rhode Island gets to be a state. ;)

Pete,

Whenever the 9th is brought up by someone with your POV on the issue it tends to be dismissed as an unimportant concession to the AF's. It seems to me that if you buy that then you have to admit that the constitution was crafted in both language and in substance as a document of compromise which supports Kevin' s idea.

Some of the phrases may be terms of art, and terms of art on purpose, to paper over differences and allow flexibility

So the constitution as a document was one which by necessity had to represent and appeal to groups with significant differences of opinion. Even among those who agreed, there is a different outlook on the reason behind, or the function of a particular articles or amendments. Not only is one general understanding of the meaning of each article and amendment unlikely at best. Look at how many different reasons people give for the war in Iraq. Did early presidents who were of the age of the generation that ratified the constitution not rely on unique interpretations of various constitutional articles and amendments when it suited them?

The point is that if the 9th amendment was a key compromise to secure ratification then that suggests to me that it should be treated as an important part of constitution not one to be dismissed. After all the main argument for it's inclusion was to insure that a right was not denied and people would not try to deny it with the argument that it's not enumerated.

It also begs the question, what is a non-enumerated right? Name a right, not enumerated in the text of the constitution that is generally accepted and on what basis it properly recognized as being protected under the 9th. Bonus if you can name the process that led to the recognition that the right was protected under the ninth. You also eluded to the idea that the concept of privacy was too broad, what would be an example of something sufficiently narrow?