• 09 November 2009

Originalism Is Bunk

Mitchell N. Berman - University of Texas at Austin

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“Originalism Is Bunk.”  The title seems to promise a polemic.  I hope, however, that most readers will find the Article shorter on polemic and longer on analysis than they might have anticipated.  My ambition in writing the Article was not to bury originalism but to evaluate it—ideally, with fairness and precision.  The verdict conveyed by the title reflects my conclusion, not my point of departure.

This Editorial has two modest goals.  First, it defines originalism, for we cannot intelligently assess the thesis without a firm grasp of the central term.  Second, it introduces core arguments for originalism and briefly sketches my rejoinders.

 
I.
What Originalism Is

Originalism is today’s dominant theory or account of how the federal judiciary should interpret the United States Constitution.  That does not mean it is widely accepted.  To the contrary, I believe it is more often rejected than embraced.  But it serves as a focal point for contemporary debates over constitutional interpretation to a degree that competing theories cannot boast.  And yet, just what originalism maintains is surprisingly unclear.  While one commentator has bemoaned that “[t]he originalist debate has progressed without a clear statement of the doctrine itself,”1 another has complained that “[i]f ever a term muddied as much as it clarified, ‘originalism’ is it.”2 This lack of clarity is unfortunate, for it invites the possibility that self-professed originalists champion a version of originalism that their critics do not reject, while the critics challenge a version that proponents do not maintain.

Contemporary originalists disagree over many things:  over which feature of the Constitution’s original character demands fidelity (Framers’ intent, ratifiers’ understanding, public meaning, or something else); over why such fidelity is required; over whether this interpretive obligation binds only judges, or whether it binds citizens, legislators, and executive officials too; etc.  But along one dimension—what I call the dimension of strength—originalists are mostly united:  They all believe that those who should follow some aspect of a provision’s original character (judges, at the least) must give that original aspect priority over all other considerations (with a possible exception for judicial precedent that departs from the original meaning).  That is, again putting aside the problem of stare decisis, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it.  This is the central thesis that self-professed originalists maintain and that their critics (the non-originalists) deny.

This is perhaps the single most important fact to understand about the originalism debate today, so I will risk belaboring it.  Non-originalists do not deny that the original public meaning of a constitutional provision, or the meaning that the Framers or the ratifiers intended to entrench, or even the purposes that they aimed to advance, bear on proper judicial constitutional interpretation.  Non-originalists typically accord weight to all these things.  But they accord weight to other considerations too, such as the historical practices of the nonjudicial branches, longstanding cultural understandings, widespread contemporary values, and even the interpreter’s own judgments about justice and workability.  Of course, non-originalists do not all agree on how much interpretive weight each of these other considerations should get (or even which other considerations should get any weight at all).  What distinguishes originalists from non-originalists is that the former affirm, and the latter deny, that the judiciary is obligated to interpret the Constitution in accord with some aspect of its original character.3

Think of “originalism” as capturing a family of actual or possible views about constitutional interpretation, views that vary across several dimensions.  On the dimension of strength, we can distinguish three claims:

(1) Weak Originalism:  Original meaning contributes to constitutional meaning.

(2) Moderate Originalism:  Original meaning contributes substantially to constitutional meaning.

(3) Strong Originalism:  Original meaning contributes decisively to constitutional meaning.

When participants in contemporary interpretive debates discuss originalism simpliciter, or originalism unmodified, they overwhelmingly refer to strong originalism—whether or not qualified by an exception for judicial precedent.4 In saying this, I am making an empirical generalization, not asserting a supposed conceptual truth.

Over the years, scholars have criticized originalism on diverse grounds, including that the target of the originalist search is undiscoverable or nonexistent, that originalism is self-refuting because the Framers intended that the Constitution not be interpreted in an originalist vein, and that originalism yields bad outcomes.  I proceed differently.  Instead of mounting arguments for why originalism is not true, I endeavor to catalogue the varied arguments proffered to establish that it is and to evaluate such arguments critically.

Arguments for originalism can be sorted into two broad classes—what I call hard and soft.  Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true.  Originalism is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches.  That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected to already accept, while soft arguments aim to persuade the interlocutor to revise his value judgments or his empirical or predictive assessments.  This is just the first pass at a distinction that might still benefit from further refinement.  But, however the distinction might be best formulated, ultimately the question is whether the arguments for originalism succeed, not what their status or character is.  Still, readers of the originalism literature might find a rough grasp of the distinction useful, for recognizing a particular claim as hard or soft can prime one for the types of counter arguments that will be required.  The distinction is perhaps even more important for proponents of originalism than for critics.  The rhetoric over originalism is often heated.  Those not armed with hard arguments ought not to make hard claims.

 
II.
Assessing Originalism

Arguments for originalism—by which I mean strong originalism—are works in progress.  But three arguments predominate.  Originalism is said:

(1) to follow necessarily from the nature of meaning or of interpretation;

(2) to follow necessarily from the nature of law, or of constitutions, or of the rule of law, or something of this sort; and

(3) to constitute the optimal judicial interpretive stance, all things considered.

The first two arguments are hard; the third is soft.

 
A.     Intentionalism

Most of us believe that federal judges—Supreme Court Justices especially—are engaged in the activity of interpreting the Constitution, understood as the process of deriving or divining law (or “legal meaning”) from constitutional text.  Intentionalism is a theory of interpretation generally, not a theory of constitutional interpretation in particular.  Intentionalists contend that interpretation of any text—a poem, a musical score, a blueprint, a sign, a contract, a statute, a constitution, etc.—is necessarily a search for the author’s intentions.  As explained by Steven Knapp and Walter Benn Michaels, the literary theorists who have championed intentionalism most ardently, “the meaning of a text is simply identical to the author’s intended meaning.”5 If this is true, then the meaning of the Constitution is the originally intended meaning, and the job for present-day constitutional interpreters is simply to unearth that originally intended meaning.

But on what grounds should we conclude that intentionalism is true?  First, a favorite intentionalist tactic is to appeal to readers’ pre-theoretical intuitions that, in a range of everyday contexts—from reading a grocery list to ordering off a menu—interpreters ought to search for the author’s intended meaning.  Second, intentionalists insist that meaning cannot simply “inhere” in a text without animating intention.  The supposed fact that a stalactite’s drippings cannot create a meaningful text no matter how much they resemble words in a known language presumably establishes that texts derive their meaning from the author’s intention.  Third, intentionalists argue that intentionalism is required to render the act or practice of interpretation rational.  As Stanley Fish has put it:

For interpretation to be a rational activity and not a form of what H.L.A. Hart calls “scorer’s discretion,” there must be an object prior to and independent of the interpreter’s activities, an object in relation to which you can marshal and assess evidence and measure progress. . . . The only object of interpretation that makes it a rational activity rather than a free-for-all is the intention of the author.6

Now, the first argument is inadequate because nobody denies that intended meaning is both a valid form of meaning and the frequently appropriate target of interpretation.  The only thing that non-intentionalism denies is that interpretation must be a search for intended meaning in all interpretive contexts, and with respect to all types of texts—poems, statutes, grocery lists, invitations, instruction manuals, etc.  Non-intentionalism as a general theory of interpretation is no more anti-intentionalism than non-originalism as a theory of constitutional interpretation is anti-originalism.  Accordingly, the intentionalists’ challenge is to explain why we must always interpret all texts solely in accordance with presumed authorial intent. The remaining arguments are designed to address that question, but are not up to the task.

To start, few non-intentionalists contend that meaning simply inheres in shapes or sounds or even in lexical items fashioned around grammatical structures.  Even assuming arguendo that nonhuman artifacts cannot have semantic meaning and, therefore, that the intention of an agent to convey meaning is necessary for the text thereby produced to bear meaning, it does not necessarily follow that the meaning that the text bears must be the meaning that its author intended.  We might say that some authorial intentions (to communicate and to use a particular language, for example) could be preconditions for interpretation (if they are even that), without such intentions necessarily serving as the target of interpretation.

Finally, it is plainly false that, once we untether meaning from authorial intention, a text can mean just anything at all.  Interpretation is everywhere constrained by cultural conventions.  Furthermore, our reasons for interpreting a given text might themselves provide reasons for or against different interpretive targets.  When the reader’s purpose in interpreting a text is to coordinate with the author or to glean information from him, she will rarely have any reason to engage in non-intentionalist interpretation.  But not all communication is designed to effect coordination or convey information.  Constitutions might be designed—and, in any event, might be understood and valued—in part to secure good outcomes within broad constraints.  Thus, the standards that determine whether a given interpretation is true (or more or less plausible) would not be determined by conceptual truths standing apart from our reasons for engaging in the interpretive activity.  Rather, our reasons for engaging in interpretation (understood as activity) would partly determine the standards by which interpretations (understood now as the output of the activity) are measured.

 
B.     Law

Contentions that originalism somehow follows from the very nature of law or from some noncontroversial feature of our law, or of our Constitution, are common but elusive.  Often, they rest on a quasi-Austinian picture of law itself that needs no further discrediting.  Some originalists, however, contend that to treat a constitution as binding or authoritative entails that what we treat as binding is its original meaning.  It is the original meaning of the Constitution that confers upon the Constitution its authoritative character, the fact that we take ourselves to be bound by it.  And this is so, they often say, because our Constitution is written.  But precisely why the writtenness of the Constitution dictates originalist interpretation is hardly obvious.  As Keith Whittington, who has pressed the originalist “argument from authority” with uncommon vigor and sophistication, recognizes, “the nature of the constitutional text can be conceived of as a fixed referent for political debate.”7

Theorists who would derive originalism from principles of law sometimes place particular weight on the rule of law, a congeries of values like transparency, stability, and predictability.  The idea is that these values can be respected or realized only through an originalist posture.  But this is again false.  For one thing, these values are sometimes better served by interpreting the Constitution in accord with widespread contemporary beliefs about its meaning or expectations about judicial practice, rather than by appeal to understandings that are centuries old and that require painstaking historical investigation to excavate.  For another, the argument encounters a reductio.  We have never had a resolutely originalist Supreme Court Justice, let alone an originalist Supreme Court.  If the rule of law requires originalism, then it must follow that the United States has never respected the rule of law—a conclusion that few will swallow.  In short, arguments that strong originalism is entailed by the rule of law—or by other core values such as democratic accountability and separation of powers—routinely rely on the erroneous assumption that such values can be realized only fully or not at all.  They fail to appreciate that an interpretive approach, just like any feature of the system of constitutional governance, can satisfy or embody these values to greater or lesser degrees.

 
C.     Pragmatism

If originalism does not follow from the nature of interpretation or from the nature of law, or from basic legal concepts or values to which our constitutional order is committed (such as legal authority or the rule of law), originalism might nonetheless be defended on essentially soft pragmatic grounds as simply the best way to run the railroad.  Indeed, two versions of this argument can be unearthed, what we might think of as act-consequentialist and rule-consequentialist variants.  Both variants recognize a multiplicity of values or ends that constitutional adjudication should serve:  promoting the stability of legal norms and the predictability of judicial decisions, permitting space for contemporary democratic decisionmaking, respecting the intentions and expectations of previous ratifying generations, advancing justice and preventing injustice, ensuring a workable legal system flexible and robust enough to meet the economic and geostrategic needs of a world power in the twenty-first century, etc.

The act-consequentialist pragmatic argument for originalism maintains that, in each individual case of interpretation, these values are optimized by interpreting the constitutional text in accordance with the specified aspect of its original character—say, its original public meaning—either because one of the relevant values or desiderata is lexically prior to all others and is always best served by the originalist interpretation or because, although the ordering of relevant values is nonlexical, it just so happens that an originalist interpretation always optimizes their collective realization.  The rule-consequentialist variant concedes that if the interpretive approach were up for grabs on every individual occasion of interpretation, then non-originalist interpretations would sometimes be optimal.  But it claims that constitutional interpretation must proceed in accord with a clearly articulable rule, and that only originalism can furnish what is needed.

The act-consequentialist variant is implausible once we recall that the debate over originalism presents a choice, not between following the original understanding always or following it never, but between following the original understanding always and following it sometimes.  Because genuine alternatives to strong originalism include interpretive postures that give substantial, albeit not conclusive, weight to original meaning, act-consequentialist arguments are not remotely likely to support strong originalism against all positions that fall within moderate originalism.

Does the rule-consequentialist variant fare better?  Precisely why interpreters of the Constitution should proceed by means of an interpretive rule, and not a standard, is rarely spelled out with specificity.  Although originalists frequently invoke the slogan that “it takes a theory to beat a theory,” this adage cannot by itself explain why judges must follow the (more or less) sharp-edged rule that originalism supplies for selecting among candidates for constitutional meaning.

 
D.     The Noble Lie

The most promising reason to prefer rule-like strong originalism to a more standard-like moderate originalism rests on the perceived inevitability of drift or slippage from the announced interpretive method to the method actually practiced.  Under present practice, interpretive rules are given by judges to themselves; there is no authoritative external promulgator or enforcer of interpretive rules.  Therefore, that originalism produces better consequences on balance than any of its competitors is a reason for judges to embrace it only on the assumption that judges should be guided in their decisionmaking by the goal of realizing best consequences (by whatever metric of value the theorist proposes).  But if so, cases would inevitably arise in which judges were quite confident that departing from the original meaning, on that occasion, would produce better consequences than would following it, even when accounting for whatever marginal negative effect nonconformity with the interpretive rule on the occasion in question might have on future conformity with the rule.  In short, the pragmatic case for originalism runs up against all the usual objections to rule-consequentialism.

This might look like an argument against strong originalism, but it actually amounts to just the opposite.  If strong originalism were the law in the books, the originalist admits that it would reduce in practice to some form of moderate originalism.  But if moderate originalism were the law in the books, the originalist continues, it too would become something even weaker in practice—perhaps mere wish fulfillment, or what Fish and Hart call “scorer’s discretion.”

This final argument for preaching strong originalism even while knowing that it cannot be successfully defended against all forms of non-originalism, then, would be that the theoretically better alternative of a genuine moderate originalism is not practically attainable.  If we want some checking of pure judicial subjectivity, we need to forcefully avow strong originalism—we might even need to avow hard strong originalism—even if we will actually prefer some unacknowledged departures from such strong medicine.

This variant of the Noble Lie is, I think, likely the best argument for strong originalism.  But I doubt it is good enough.  As Justice Scalia himself insists, “the American people are not fools.”8 They can see and understand dishonesty.  And judicial dishonesty might be especially likely to have a corrosive effect on public acceptance of the judicial role and a corrupting influence on judges themselves.  Thus, does my originalist colleague Lino Graglia rightly proclaim “that honesty is the best policy, particularly for public officials and even more particularly for judges.”9 It is cause for concern, then, how often self-proclaimed originalists abandon originalism to advance what seem to be their political preferences.  As one recent empirical study concluded, “Justices might speak about following an ‘originalist’ jurisprudence, but they only appear to do so when arguments about text and intent coincide with the ideological position that they prefer.”10 Admittedly, past performance is no guarantee of future results, but it generally is the best single predictor.  Observing that “[o]riginalism is the legal profession’s orthodox mode of justification,” one originalist urges that “the Court should align its practice with its preaching.”11 But the practice is unlikely ever to accord with originalist dogma.  Thus, the originalist’s advice might have things backward:  The virtue of candor would be better served were the Court to align its preaching with its practice.

 
Conclusion

Reasonable people can reasonably disagree regarding the considerations that should shape judicial constitutional interpretation, but I am aware of no theorist who believes that original meaning is irrelevant and few, if any, who would treat original meaning cavalierly.  Originalists are committed to a stronger position:  They contend that judges owe fidelity to original meaning (or intent, or the like) to the exclusion of all other considerations, with a possible exception for judicial precedents that do not themselves follow original meaning.  But the arguments thus far mustered for this demanding thesis are inadequate for the task.  The upshot is not that constitutional interpretation should disregard the Framers’ intentions, ratifiers’ understandings, or original public meanings.  Of course we should care about these things.  But we can take the original character of the Constitution seriously without treating it as dispositive.  That original intents and meanings matter is not enough to render originalism true.dingbat

 

Acknowledgments:

Copyright © 2009 New York University School of Law.

Mitchell N. Berman is Richard Dale Endowed Chair in Law at The University of Texas (Austin) Law School.

This Legal Workshop Editorial is based on the following full-length Article: Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1 (2009).

  1. Aileen Kavanagh, Original Intention, Enacted Text, and Constitutional Interpretation, 47 AM J. JURIS. 255, 257 (2002).
  2. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J, 1725, 1812 (1996).
  3. Originalists often acknowledge that particular original meanings might be too vague or ambiguous to resolve disputes, and therefore that judges might be required, or at least permitted, to engage in “constitutional construction.” For originalists, however, constitutional construction must operate within the space permitted by originalist interpretation: i.e., to be valid, a construction cannot contradict the originalist interpretation.
  4. For expositional ease, I will drop this qualification about judicial precedent for the remainder of this Editorial. For want of space, I will not enter into the debate over whether proponents of strong originalism have sound arguments for recognizing an exception for judicial precedent but not for other considerations, including non-judicial precedents. As the longer Article explores, that is quite a challenge.
  5. Steven Knapp & Walter Benn Michaels, Against Theory, 8 CRITICAL INQUIRY 723, 724 (1982).
  6. Stanley Fish, Intention Is All There Is: A Critical Analysis of Aharon Barak’s Purposive Interpretation in Law, 29 CARDOZO L. REV. 1109, 1138 n.98 (2008) (citation omitted).
  7. KEITH WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 61 (1999).
  8. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1000 (1992) (Scalia, J., concurring in part and dissenting in part).
  9. Lino A. Graglia, “Interpreting” the Constitution: Posner on Bork, 44 STAN. L. REV. 1019, 1031 (1992).
  10. Robert M. Howard & Jeffrey A. Segal, An Original Look at Originalism, 36 LAW & SOC’Y REV. 113, 133 (2002) (describing authors’ conclusion after analyzing 895 cases over eight Supreme Court terms from 1979 through 1994).
  11. Lillian R. BeVier, The Integrity and Impersonality of Originalism, 19 HARV. J.L. & PUB. POL’Y 283, 287 (internal quotation and citation omitted).

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