The Original Sins of Originalism

Stanley Fish writes in the Times about, well, nothing much.  http://opinionator.blogs.nytimes.com/2012/02/06/politics-in-the-academy-the-same-old-song/ 

Some of the article is tongue-in-cheek of course, rather like the title of this post, but there’s a large problem underlying the entire enterprise.  I thought I’d write about it in a general, broad brushed way, since a lot of the articles on the topic quickly dive into murky theory.

In some senses the ideas that underpin Originalism are not that radical.  It’s basically the idea that you can better understand “a statement” or “a writing” or “an utterance” if you give it a proper historical context.   Obviously, this kind of idea picks up value the further “away” from one’s self you go.  For example, I hardly need someone to explain the cultural, religious, political, philosophical, and linguistic nuances of what I myself said five minutes ago.  (Unless it’s pre-coffee – then, I need all the help I can get.)  However, if I’m trying to understand something from a long time ago, from a distant geography, spoken in a language I do not understand, uttered by a person who has very specific and different beliefs about religion, politics, and philosophy, a person in the grip of specific historical forces I’m unaware of, then yes, I need all of the “context” I can get to understand what that person “meant.”  I completely approve of trying to get as much “context” as one can when trying to understand something and/or make important choices, and it's this common sense idea which gives Originalism (we'll get to it in a moment) it's false veneer of legitimacy.

Here's the problem.  In contemporary America, Originalism is used as a means of “interpreting” certain important ideas and concepts in the Constitution.  It’s associated with “conservative” thought (although there’s no reason why it couldn’t be “liberal”), and has a kind of common, rough-hewn sense to it.  However, the application of Originalism can be dangerous and sometimes farcical.

For non-law, non-politics type readers, here's a super-imple sketch of law in America.  America’s citizens created a Constitution.  The Constitution sets the rules as to how the Government functions and creates  “rights” for citizens.  The Constitution can be modified by specific mechanisms.  In a sense, the Constitution sets the “Basic Rules” for the country; the government and the laws created under the Constitution cannot violate those “Basic Rules.” 

In principle it’s an excellent and flexible system, and most of the time it works pretty transparently.    On one end of the scale, Americans still completely agree (thankfully) on what some of these rights “mean” in a practical, everyday sense.  For example, the government cannot send soldiers to shoot you in the head, just because the people in power don’t like how you pray.  In fact, many of these agreements are so obvious as to seem ludicrous to Americans; but it’s a case of a fish not being aware of the water it swims in.  There are places where governments do just shoot people – it happens now.  Americans enjoy a wonderful and amazing array of rights that the law enforces and defends; freedom to speak your mind, pray, gather in a community, own property, go to court if someone’s wronged you, worship (or not) as you see fit, not to be beaten by strangers, etc.  Nearly all of these rights are found in the Constitution and its Amendments, and while we disagree on the fine points of some of them, they’re basically there, and there's little (or very marginal) controversy surrounding them.

On the other end of the scale, Americans are deeply divided over a few issues like abortion; some argue abortion has Constitutional protection as a basic right, others argue is has no protection and thus could be legislated against or outlawed. Since the Constitution sets up the “Basic Rules” which specific laws have to follow, on contentious issues, it suddenly becomes very important what certain phrases in the Constitution “actually mean.”  Is abortion “actually” protected by the Constitution or not?

To illustrate how Originalism works in this context, let’s move away from the abortion example and pick one that’s less polarizing.  Let’s say a law is passed allowing “death by torture” for certain horrible and despicable crimes.  Well, the Constitution forbids “cruel and unusual punishment,” but what does that “mean?”  What’s “cruel and unusual” and what’s not?

Originalists (in this context) want to look at what the people who originally wrote (and voted on) the Constitution meant.  They also want to look at how people living at the time would have generally understood what the Constitution “meant.”  The underlying idea is that through Orignalism we’ll have a more precise understanding of what “cruel and unusual” means, and be in less danger of being “mislead” by language or concepts that have changed over time.  Legal decisions would be more predictable, reasonable, and if something needs to be changed in the Constitution itself, we can just vote in a new amendment.  Which sounds aaaaalmost reasonable.   (Cue Stanley Fish with his pastries: “we’re just trying to understand something, not be political. . .”)

In no particular order, here are the problems with Originalism.

First of all, assuming there's a correct answer to get, there’s no guarantee that any given Originalists will actually “get” the correct answer.   Some research might suggest “cruel and unusual” means one thing, or perhaps it means another.  This isn't like flipping open a dictionary or reading some "What the Framer's Really Meant to Write Codebook."  This is more like arguing over just how "late" "late" was going to be, when I said, "I'll pick you up late today."   Or, like saying something is "cruel" or not.  Most people are drawn to the certainty suggested by the idea of originalism, but there's no easy, universally agreed upon starting point for many of these issues.

Second, Originalism is intellectually dishonest.   Even if you “start” with Originalism, there’s always a layer of interpretation that must occur because things change over time.  Let’s say the idea of forcing people to take medication just was never considered, one way or another, when people were talking about “cruel and unusual” punishment in those days.  So what do we do now, guess as to what people might have thought about it, 200 years ago?  Or, lets say that something flat out didn’t exist 200 years ago?  Anything invented in the past 200 years is in an “anything goes zone?”  If you’re going to engage in interpretation anyway. . .

Third, there’s strong evidence in the Constitution itself to refute the idea of Originalism (that the actual Framers of the Constitution wanted us to view it as fixed, permanent, and unchanging, and not subject to subsequent interpretation).   Specifically the Ninth Amendment: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."  If there’s no laundry list of rights, the Framers would have wanted us to interpret what those rights are.   Furthermore, the deliberate use of broad language like “cruel and unusual” gives the flexibility for people to interpret the principle, not a fixed and limited set of punishments.  (Originalism says, essentially, “The Founders really meant to write “death by hanging for minor offenses and bodily torture” but decided instead to write in “code” and say “cruel and unusual” by which they, and everyone else, knew they really only meant to say exactly: “death by hanging for minor offenses and bodily torture.”)   I mean, if you’re leaving instructions for people do you write out every little thing?   

I think the best evidence "in" the Constitution itself is simply that if it was really meant to be an Originalist document, we’d either have to constantly amend the Constitution with tiny specific updates (because it wouldn’t apply to new things we think up) or pass an amendment that said “we’re going to interpret the Constitution through our normal societal standards at any given time.”  And you know what?  The Founders DIDN’T start constantly amending the Constitution to clarify its language.

Another way of looking at this is to apply an Originalist system and imagine the Founders trying to design it: “OK, lets make a Supreme Court.  The Court will only decide based on the literal language of the Constitution and will not “interpret” it in any way.  That way, if there’s an important case involving a brand new situation, a case that might affect thousands of people, the Court can simply say it can’t interpret the Constitution.  Then, when enough people are outraged, we’ll muster the entire population and have them amend the Constitution so the situation is covered.  We’ll just keep on doing that for every “new” court case!  And, for extra fun, we won’t schedule any kind of regular procedure to periodically amend the Constitution.”

Or: "Umm.  Been thinking about your idea.  Here's another one.  We can just let the Court interpret our common sense phrases and if they screw up, then people can amend the Constitution.  Hopefully that won't happen too often."

There’s a more fundamental political issue though:  So.  Let’s go with Originalism.  What if death by torture was completely normal 200 years ago?  (Torture everyone!)  Or, on the other hand, what if forcing someone to take psych meds, or locking someone up for more than a year was considered “cruel and unusual” 200 years ago?  (Let everyone in Jail out now!)  What if, 200 years ago, some people thought it was, and some people thought it wasn’t?   What if someone felt strongly about it but thought the concept was so obvious they didn’t write it down?  (We guess!) You see the problems.  It really does not matter what people thought if the result (for us, now) would be absurd – and if the result is sensible and wise, surely we can reach it on our own.  Now as far as “consensus” goes, the idea that we’re just going to look for what those long dead people thought as a whole, or thought something meant as a whole, let me tell you, regardless of what they thought, they made bad decisions.   For example, “collectively” forbade women to vote and allowed slavery.  The slavery argument isn’t just rhetorical by the way, it’s obvious immorality aside, it was a bad decision that crippled and nearly destroyed the country.  There is no “golden age” of right decisions and clear language to return to, even assuming the Originalists didn’t make any mistakes in their interpretations of what they think someone meant.

So why the obsession with tracking down the nuances of a word used 200 years ago?  Well, Fish in his article might have you believe that it adds to our understanding, and I’m sure it does somewhat.   But what it really does is put an argumentative arrow in a Judge’s quiver.  The argument, as you may have guessed, is “Dead White Guy (or guys) thought “X,” the end.”    

Or even worse, “DWG wrote X, which everyone thinks meant X, and lord knows we’ve been going about acting like it meant X, but the jokes on us because it really meant Y!  The end."

Seriously.  I’m not kidding.  That’s the only way you can use Originalism.  “Well, on this contentious divided social issue, which some people think should go one way, and some people think should go another way, DWG thought X, the end.”

NOTE: this is not saying, “Well, on this contentious divided social issue, DWG thought X, which Agrees or Disagrees with this important comprehensive study about the issue itself, outlining its pros and cons, in light of our traditions and what we can expect in the future.”  That would be an interesting historical footnote.  It’s also Not saying, “Well, on this contentious divided social issue, there’s a long string of good (or bad ) decisions people have made, and these are the effects of those decisions, interestingly enough, DWG thought X, which began (or opposed) these decisions.”  But none of these would actually be Originalism, just the proper use of historical context.

I’d put it to you that if an issue is in fact contentious, or litigated, or far reaching, or important, it ought to be decided in a rational way that considers as much information as possible and weighs the consequences of our options.  Playing “gotcha” with definitions is abrogating our responsibility to ourselves and our future.

Just remember – “the more Originalism you need, the less relevant it is.”