Originalism's Misplaced Fidelity: "Original" Meaning Is Not Objective

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I. INTRODUCTION

Although Originalism has been systematically critiqued and repudiated by a number of scholars in law and philosophy, it has proven an impressively resilient doctrine. It is not hard to understand why. Its basic thesis--that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted it--can seem to embody the very essence of fair play, expressing as straightforward an obligation as the obligation to keep one's word or to abide by the rules of a game one has entered into. Regardless of what various alternative theories of proper interpretive method may propose, it is difficult to stray far from the pure, fair-minded appeal of the Originalist brand of respect for the rule of law. Don't we have to be faithful to what the lawmakers were doing? To what they took themselves to be doing? Surely it would be wrong to set that aside and declare: "different times, different rules," without formally changing those rules through the prescribed procedures. To claim to be following written laws while departing from what the writers meant by them would actually eviscerate those laws, "respecting" the law in name only. Originalism insists that the rule of law requires fidelity on the part of those who apply the law to those who make the law. "Unlike the democratic visionaries, the rights theorists, or the natural lawyers," Keith Whittington has observed, "originalists do not look past the Constitution to a larger and prior moral commitment." (1) Rather, Originalism is faithful to the Constitution itself, however commendable or flawed it may be. To the extent that we sincerely seek to interpret the law, Originalists contend, their methodology is the only means of doing so. (2)

In this paper, I wish to examine two recently articulated and very persuasive defenses of a particular, resurgent form of Originalism. The reasons for doing so require a little more background.

II. THREE SCHOOLS OF ORIGINALISM

Originalism, again, is the thesis that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted it. (3) Joseph Story, in his widely read Commentaries on the Constitution, provides a clear statement of this principle: "the first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties." (4) A few decades later, we see Originalism at work in Justice Roger B. Taney's majority opinion in Dred Scott v Sandford, explaining that the Constitution "speaks not only with the same words, but with the same meaning and intent with which it spoke when it came from the hands of the framers, and was voted on and adopted by the people of the United States." Correlatively, Taney held that the "duty of the court" is to interpret the Constitution "as we find it, according to its true intent and meaning when it was adopted." (5)

In more recent years, scholars have heeded the difference between reliance on the original intent behind certain language and reliance on the language itself. (6) What a person intends and what he actually says or writes are not always the same thing. Intentions can be much more difficult to ascertain and can vary considerably among different lawmakers. For these reasons, most Originalists have moved away from the Original Intent view, agreeing with Antonin Scalia that "men may intend what they will; but it is only the laws that they enact that bind us." (7)

While Scalia offers many valid criticisms of the Original Intent school, his own "Textualism," which contends that laws' meanings are contained within the words alone, rests upon serious misunderstandings of the nature of meaning. While these have been devastatingly exposed elsewhere, what is of immediate relevance is that the emphatic failings of Scalia's theory make it tempting to conclude that since even this better form of Originalism ultimately fails, Originalism itself must be a dead letter. …