Originalism and Its Discontents
Posted by
Kevin
Kevin Drum points out that Dahlia Lithwick is looking for defenses of the liberal view of the Constitution:
And yet, despite the fact that originalism is little more than a transparent and flimsy attempt to justify a fondness for 18th century social values, it has become the centerpiece of a vast and increasingly popular intellectual enterprise. As Dahlia Lithwick puts it today, “the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended.”
Kevin goes on to dissect both why that is and why no one is making the counter argument. Original Intent is a terrible method of judicial review. It is nothing more than a historical treasure hunt that allows judges to make the Constitution say whatever they want it to say, unfettered by the text, by logic, by anything other than their ability to make history say what they want it to say. Quoting myself from an earlier post discussing the fact that Scalia and Black used the same history on the same question and came to radically different answers:
There is no objectivity in originalism. The historical record is so broad, and so conflicted, that any judge can find support for any position he or she chooses. originalism simply replaces analysis based on a guiding understanding of the meaning of the Constitution with a historical scavenger hunt that allows judges to pick up any old piece of Constitution related history they find lying around, dust it off, polish it up, and proclaim it to be the truth.
Original intent is the least objective method and the one most open to abuse and simple incompetence. The Founders were numerous and ran the gamut from conservative to reactionary. And, as Nathan Newman points out, they cannot be limited to the 1780’s. The 13th, 14th, and 15th Amendments radically redid the meaning of the Constitution, and thus the opinions of the people involved in that process must also be considered — something that few if any OI supports admit.
So what would I replace it with? A system of interpretation that takes the Constitution as a whole and reads it within its complete context and informed by the last two hundred years of human history. Again, quoting myself:
Original Intent has very much the same effect. Scalia believes that the death penalty is Constitution because, in part, the writers of the Constitution did not believe that the death penalty was “cruel and unusual punishment”. Because the experiences of the first generation of Americans taught them one thing, we as a people are never allowed to take what we have learned as a people and apply it to the words of the Constitution. there is no room for growth, no room for greater understanding, no room for anything but the past.
I am not the same man I was when I was eighteen. I have lived more, experienced more, and I like to think I have gained some wisdom in the process. The same can and does happen to societies as a whole. We should welcome that wisdom, but Original Intent does not. It runs from it, and tries to hide behind the revealed wisdom of the Founding Fathers, much as Biblical literalists depend upon the revealed wisdom of Scripture. Both modes of thought are a recipe for stagnation and, eventually, repression. Whether or not their proponents admit it, societies do grow. The people of those societies will not turn their back upon the wisdom they have earned, even if their lawmakers do. At some point, there will be a conflict between the hard earned wisdom of a people, and the revealed wisdom of the past. No society remains unchanged, and Original Intent limits the ability of our society to apply those changed wisdoms to our understanding of the Constitution. I believe the word for that process is “stagnation”.
The Constitution was deliberately left vague in places, and that vagueness is its strength. It allows for the structure of our government to adapt to the changing times and to deal with the future through the hard earned wisdom of the past. We should embrace that aspect of the Constitution and not listen to those who say we are too stupid a society to have earned from the mistakes of our forbearers. The founders where smart enough to know that they did not know everything, that they could not foresee all problems, that society would change in ways that where unimaginable to them. They built a Constitution understanding their own limitations and trusting in their children and their children’s children to deal with the responsibility of governing themselves. Liberals embrace that responsibility; conservatives run from it.
I hope I’m misunderstanding you. It sounds like what it boils down to in practice is that the Constitution has no meaning. What are some things you’d like people to do or stop doing, that you feel the government can’t regulate under your interpretation of the Constitution?
Comment 8/25/2005
“Original intent is the least objective method and the one most open to abuse and simple incompetence.”
Err, i think you have OI confused with that penumbra, living document nonsense. I guess that’s why privacy is in the constitution, you just insert it when you like? feh.
Comment 8/25/2005
CharlesH
No, of course not. But “cruel and unnusaul” means “cruel and unusal” TODAY not what some historical figure that agrees with you may or may not have throught it meant. It means that the 14th protects all classifications of people, not just freed slaves. It means that we recognize the fact that the Constitution was vague in some places and that we do not run form the responsibility that vaguness places upon us. OI is the method that says that the constitution has no meaning — it means whatever an amateur historian in a black robe thinks someone long dead thought it meant.
Uncle
Nonsense. OI is a joke - Heck, I already gave you an example of two people suing the same history on the same subject and coming to to two radically different conclusions. At least with a living document, you actually have to have a reaosn for what you do. OI is just ignoring the plain menaing of the words to suit your needs.
Comment 8/25/2005
Err, i think you have OI confused with that penumbra, living document nonsense. I guess that’s why privacy is in the constitution, you just insert it when you like? feh.
Kevin may have overstated the point, which is basically that “Original Intent” is no more “objective” than any other method of constitutional interpretation.
Let’s face it, law is (methodologically) theology: it’s the interpretation of “sacred” writings. Just as in theology you can pick and choose and cut and paste your proof texts to come to just about any conclusion you want, you can do the same thing under an “original intent” methodology as well.
Comment 8/25/2005
“OI is just ignoring the plain menaing of the words to suit your needs.”
Err, no. It’s actually going by the plain meaning. The penumbra crap is just inserting what you want when it suits you.
Remember, the constitution, for practical purposes, doesn’t mean what it says any way. It means what some judge says it means. Five hands is all it takes.
Comment 8/25/2005
And there is a means to actually, you know, change the constitution.
Comment 8/25/2005
Uncle
” It’s actually going by the plain meaning. T”
No, its not. if it was, then Scalia and Black could not have come to two different answers to the same question, now could they?
Comment 8/25/2005
Er, no again. Obviously, they interpreted things differently.
Comment 8/25/2005
“Er, no again. Obviously, they interpreted things differently.”
but they are both OP judges - -and they both lokoed at the same history. Are you saying that OI isn’t about the plain menaing and that is is subject to the subjective opinion of judges? But I thought OI wasn’t liek that pnuembra crap and made the Oncstitution always mean what it said?
Comment 8/25/2005
Not sure why they reached different conclusions, other than each probably had the result they wanted in mind and found some founder (madison) quotes to support their view. But then I’ve only read your snippet and haven’t researched it all that much.
Comment 8/25/2005
” other than each probably had the result they wanted in mind and found some founder (madison) quotes to support their view.”
And thats the core of my problem with OI. there is very little to tie it to reality, and a greater lattitude, I feel, than working off the words and the context of the Constitution. It isn’t that judges cannot abuse other forms of interpretation — it is that OI pretends to be something it is not, objective, and lends itself to a greater degree of abuse, I feel.
Comment 8/25/2005
On that, I tend to concur. However, the words in the constitution do mean what they say, which was the point I was getting at.
Comment 8/25/2005
“However, the words in the constitution do mean what they say”
And I don’t disagree. I jsu tthink that the meanings of vague phrases are not tied to the meanings in 1787. Which is where I think our disagreement lies.
Comment 8/25/2005
One of us (who shall remain namless) apparently confused original intent with strict constructionist
Comment 8/25/2005
What are some things you’d like people to do or stop doing, that you feel the government can’t regulate under your interpretation of the Constitution? If you have trouble presenting a list of these things, then I think your version of Constitutional interpretation is the same as no Constitution; you’re just using it to give Constitutional authoritity to ideas you think are modern or progressive.
Some examples I’d like people to stop doing, that the federal government hasn’t the authority to control under the Constitution, include smoking, drugs, flagburning, sodomy, and borrowing to live beyond their means.
Comment 8/27/2005
[…] Publius has a post discussing theories of constitutional interpretation. This, of course, means that a fight (but since its Obsidian Wings, it’s a very genteel, intelligent fight) over original intnet and its imitators has broken out. My dislike original intent as an idea is pretty well documented, so I wont really go back over those details. But on thing did strike me reading the comments is just how much disregard for the words of the Constitution OI entails, at least when discussing the 2nd Amendment. […]
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