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Originalists disagree among themselves about what exactly qualifies as the original meaning that judges and other government officials are required to obey. They also differ on the even more fundamental question of why we should obey the original meaning in the first place. Some believe that adhering to original meaning is inherently valuable, independent of consequences. These people can be called "intrinsicist" originalists. Others advocate originalism for instrumental reasons: they believe that following the original meaning leads to good consequences, or at least better ones than living constitutionalism. The difference between intrinsic and instrumental justifications for originalism has important practical implications, as well as theoretical ones.
In an interesting recent article, University of Arizona law professor Andrew Coan proposes a thought experiment that highlights these disagreements:
As a thought experiment, [I] propose… a constitutional amendment explicitly mandating a nonoriginalist approach to constitutional interpretation. This thought experiment has a number of interesting implications for both originalism and nonoriginalism and for the law of interpretation more generally…..
Without further ado, here is my proposed amendment:
Section 1. The United States Constitution, including this Amendment, shall be construed to accommodate the practical exigencies of human affairs and the evolving standards of decency that mark the progress of a maturing society.
Section 2. Originalism is not our law and never has been.
As Section 2 implies, this is intended as a clarifying amendment… Even if the constitutional text explicitly mandated originalism, nonoriginalist Supreme Court justices and other constitutional decisionmakers would still have good normative reasons for ignoring that mandate, reading it flexibly, or following it selectively. At most, such an amendment might supply countervailing normative reasons for adhering to originalism, which may or may not outweigh the reasons for adhering to some form of nonoriginalism. Or so I shall argue.
The same does not hold for an amendment explicitly mandating nonoriginalism. Rather, the logic of originalism would compel nearly all committed originalists to respect the original meaning of such an amendment. The only originalists for whom this would not be true are what I have called "substantive originalists," who embrace the Constitution's original meaning because they believe it to be morally just or likely to produce good practical consequences. But this is a relatively small group. Other originalists would be compelled by their own precepts—popular sovereignty, written constitutionalism, legal positivism, etc.—to embrace nonoriginalism.
Coan's experiment does indeed highlight an important difference between intrinsicist originalists and "substantive" ones (whom I refer to as "instrumental"). The former group would seem duty bound to follow Section 2 of the anti-originalism amendment, so long as it was duly enacted. The latter might well conclude they have good reason to reject it, or at least allow it to be overridden by other considerations in some cases.
Instrumental originalists are a more significant group than Coan suggests. They include such prominent constitutional theorists as John McGinnis and Michael Rappaport (authors of an important book defending originalism on consequentialist grounds) and Akhil Amar, probably the best-known left of center originalist, who argues that we should privilege the original meaning of the text over judicial innovations because the former has "often proved more enlightened and enlightening than the latter." Even many originalists who embrace intrinsicist arguments also often rely on consequentialist ones. I suspect many intrinsicists would balk at originalism if they thought it would lead to large-scale misery and injustice, and some might do so even if it simply turned out that some other approach would lead to a substantially better political order.
I. Problems with Intrinsicist Justifications for Originalism.
Nonetheless, it is easy to understand the appeal of intrinsicist justifications for originalism. They obviate the need to to make difficult empirical and institutional judgments. Unfortunately, intrinsicist justifications tend to fall apart under close inspection.
One particularly common argument of this type is the idea that originalism is the only logically possible way to interpret a text, perhaps even the only one that can avoid lying or distortion. But there is nothing logically incoherent or necessarily deceptive about nonoriginalist interpretation of texts. We in fact engage in nonoriginalist interpretations of texts all the time, for example when we put on performance of Shakespeare plays influenced by modern ideas that were unknown to the original 16th century audience. There is nothing either illogical or deceptive about such practices, so long as we are honest about what we are doing.
Another standard intrinsicist rationale for originalism is the idea that following the original meaning is required by respect for democratic processes. This argument runs into the well-known objection that the most important parts of the Constitution—the original 1787 Constitution, the Bill of Rights and the Reconstruction Amendments—were enacted by processes that were very far from democratic by our standards. In all three cases, virtually all women and most black men were excluded. Even if the ratification processes had been more democratic than they actually were, it is not clear why respect for democracy requires us to privilege the decisions of long-dead political majorities over those of today. The original meaning of the Constitution imposes many severe constraints on current democratic processes, including tight limits on the scope of federal power, an unwieldy system of separation of powers, a significantly unrepresentative Senate and a variety of individual rights enforceable by strong judicial review wielded by unelected, life-tenured judges. And all of these democracy-constraining features are very hard to to remove by using the amendment process. This is one of the reasons why left of center critics have long denounced the original Constitution as undemocratic and elitist. For these and other reasons, there is a great deal of tension between originalism and majoritarian democracy. Committed small-d democrats would do well to adopt some version of living constitutionalism.
Intrinsicist originalism can also be defended on the grounds that we have agreed to obey the original meaning by consenting to the American system of government. Judges and other government officials, perhaps, have done so by taking an oath to uphold the Constitution. This argument, however, runs into the painful reality that the US government (like virtually all other real-world governments) does not in fact have the consent of the governed. We have not been given a meaningful opportunity to freely reject its rule. If we have consented to it in some morally binding way, that actually cuts against originalism rather than in favor of it. The political and legal system we have has—at least for many decades—been ruled in large part by nonoriginalist interpretations of key portions of the Constitution. They have been adopted by all three branches of government. If the present system enjoys our consent, what we have consented to is not consistent originalism, but some hybrid combination of originalism, various versions of living constitutionalism, and ad hoc decision-making unguided by any overarching theory.
This point about consent applies to judges and other government officials, as well as ordinary people. The former could plausibly conclude that their oath to uphold the Constitution refers to a living-constitution or hybrid version thereof, rather than the original meaning.
Finally, some originalists argue that we must obey the original meaning because that is the only conceivable way to adhere to the "rule of law." The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.
For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. Consider a constitution that includes a provision saying that "the meaning of the law is whatever the president says it is," and historical evidence indicates that this clause was meant to give the president unfettered power to define what counts as lawbreaking and punish offenders as he sees fit. In this scenario, adherents of the rule of law defined as the antithesis of the rule of men, would do well to reject originalism and try to give this clause as narrow an interpretation as they can. They should try to minimize its impact in much the same way as liberal Christians and Jews minimize the significance of biblical passages endorsing slavery and the subordination of women. Similar contingent factors affect the connection between originalism and other standard conceptions of the rule of law.
II. Implications of Adopting an Instrumental Justification for Originalism.
In my view, like that of McGinnis and Rappaport, originalism can only be effectively defended on instrumental grounds. I think the original meaning of the US Constitution protects liberty and several other important values better than any currently feasible alternative is likely to do. And, like them, I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist gorunds) than those developed by judges or conventional political majorities.
I will not try to defend these conclusions in any detail here (though I have in part done so previously). I will instead note some important implications of instrumental defenses of originalism, which qualify their scope.
If originalism must be defended on instrumental grounds, that strongly implies that it may not be right approach to all constitutions at all times. If the original meaning of a given constitution leads to sufficiently harmful or unjust results, some version of living constitutionalism may well be the lesser of the available evils. What if, for example, the great abolitionist William Lloyd Garrison was right to believe that the original US Constitution was proslavery—"a covenant with death and an agreement with hell," as he famously put it? In that event, there was a strong case for adopting a living constitution approach to interpretation, at least until the enactment of the Thirteenth Amendment. If the original meaning promotes and protects slavery, that's an enormous consequentalist strike against it. Many other abolitionists argued that Garrison was wrong about the original meaning. But if he was correct (and there is nothing inherent in the nature of originalism to prevent it), then that would be a strong justification for rejecting originalism on consequentialist grounds.
Even if originalism is, on instrumental grounds, the best approach to interpreting the US Constitution and always has been, it may not be the best for other constitutions in other countries. Much depends on the specific content of those documents' original meaning, and what the realistically feasible living-constitutionalist alternatives are. Instrumentalist defenders of originalism should also be open to the possibility that originalism is not the best approach to every one of the fifty state constitutions. Many of them are very different from the federal Constitution, in various ways. The instrumentally best approach to the latter may not hold true for all of the former.
Finally, even if originalism turns out to be the instrumentally best approach to constitutional interpretation today, and even if this is true for all currently existing constitutions, it does not necessarily follow that this will continue to be true in the future. New approaches to constitutional theory might be developed, and one of them may turn out to have even better consequences than the best possible version of originalism. Instrumental originalists—myself included—need to keep an open mind about such possibilities.
None of this proves that individual judges must reevaluate first principles of originalism (or living constitutionalism) every time they decide a case. There are lots of good reasons—including instrumental reasons—to avoid doing so in the vast majority of cases. But legal theorists and Supreme Court justices would do well to periodically reevaluate their foundational premises from time to time.
In sum, there is good reason to reject intrinsicist justifications of originalism in favor of instrumental ones. But the latter have a number of potentially uncomfortable implications. Of course, the same thing is true for any plausible version of living constitutionalism. No approach to constitutional theory can sidestep difficult questions about the reasons why we should adopt it in the first place.
UPDATE: Originalist legal scholar Michael Ramsey has some related thoughts on the Coan article here.
UPDATE #2: Michael Ramsey comments on this post here. He suggests that adherence to the rule of law may be an instrumental rather than an intrinsic justification for originalism. He may well be right about that. I included it in the intrinsic section because it is often claimed that the rule of law is an inherent attribute of originalism, and that following the original meaning automatically promotes it, regardless of the content of the latter. For reasons I explain in the post (and in more detail here), I think the relationship between originalism and various standard conceptions of the rule of law is a contingent one, highly dependent on the specific content of the original meaning.