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

Smith, Tara, Constitutional Commentary

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. (8) The recent work of Whittington and Randy Barnett, however, makes clear that such a conclusion would be premature. Whittington specifically criticizes Scalia's naive portrait of language and recognizes that language does not carry meaning apart from intentions, as Scalia maintains. "Written words cannot speak for themselves," Whittington observes. A text cannot be taken as autonomous; we cannot dismiss intent entirely. (9)

Moreover, a third form of Originalism, the "Original Meaning" or "Public Understanding" school, has recently been gaining a striking measure of academic respect, increasingly embraced not only by those one might expect (conservatives frustrated by the failure of its Intent and Textualist cousins), but by figures from across the ideological spectrum. A number of liberal constitutional theorists in the past several years have, on essentially Originalist grounds, come to interpret the Second Amendment as protecting an individual's right to bear arms rather than a state's collective right to arm militias. (Sandy Levinson, Laurence Tribe, and Akhil Amar are among these figures.) (10) John O. McGinnis and Michael B. Rappaport have argued that Originalism is the most sensible interpretive method for legal Pragmatism to endorse. (11) Jack Balkin has recently embraced the core Originalist premise in a piece arguing that the right to abortion is based on the original meaning of the constitutional text. (12) Balkin avers that "constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text" (13) and he observes that "many different scholars from different political perspectives have embraced the idea that constitutional interpretation should be grounded in the text's original meaning." (14)

This Public Understanding school is generally regarded as a much more viable form of Originalism, largely on the grounds that it offers an objective framework for understanding what the law is. (15) In the words of Barnett, Public Understanding Originalism represents an advance "from subjective to objective meaning." (16) It "seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment." (17) Those words should be interpreted as a normal speaker of the language would have understood them at that time. (18) Whittington agrees that "the critical originalist directive is that the Constitution should be interpreted according to the understanding made public at the time of the drafting and ratification." (19) What unites all forms of Originalism is deference to history: It is facts about what was intended, written, or understood in the past that decide the meaning of laws that contemporary judges are to apply. Whereas the Original Intent and Textualist forms of Originalism do not deliver objective meaning, the distinctive strength of Public Understanding Originalism, allegedly, is that it does. (20)

In this paper, I shall address the two strongest defenses of Public Understanding Originalism that I am aware of. The first, embraced by Whittington, is what I will call the Popular Sovereignty Argument and the second, embraced by Barnett, as well, I will call the Written Constitution Argument. I hope to show that these efforts, while apparently going a further distance toward establishing Originalism than others, nonetheless fail to vindicate it. Indeed, we shall find that on analysis, the Public Understanding school proves every bit as subjectivist as the "living constitution" theories that all Originalists wish to oppose. (21) My thesis, in essence, is that to the extent that Originalism does reflect an undeniable truth, that truth concerns a comparatively innocuous claim. Its fidelity is misplaced insofar as it is directed at "original" meaning rather than at the law's objective meaning. The latter is what the rule of law truly demands. Indeed, as a result of what Public Understanding Originalism takes the original meaning of laws to be, it actually fails to provide an account of how judges are to apply the law--the very thing that it purports to be a theory of. That is, while Originalism plainly advocates a goal for legal interpretation ("stick to the original meaning of the Constitution"), it does not offer a method for how to achieve that goal. Yet the central dispute over adjudication concerns how judges are to interpret and apply the law. Despite its admirable aspirations, in short, Originalism does not deliver the objective application of law that the rule of law demands. (22)

I shall begin by presenting the two arguments for Public Understanding Originalism and then proceed to critique each, in turn. We will see how Originalism treats words' original meaning in a way which is at odds with words' objective meaning. (23)

III. THE POPULAR SOVEREIGNTY DEFENSE OF ORIGINALISM

The first argument grounds Originalism in the roots of popular sovereignty. (This is not a novel argument so much as one that is revitalized in Whittington's presentation, which rests on a more sophisticated understanding of language than is found in many earlier advocates who offered broadly similar arguments.) (24) This argument contends that the propriety of Originalism lies in its necessity to preserve the democratic character of our government. More specifically, its propriety lies in the fact that the source of our law's authority rests in the consent of the governed--in the fact that the people agreed to the law. People possess the "right to be governed only in accord with their own consent," Whittington affirms. (25) This is why we seek to maintain a government of and by the people.

When we confront the question of legal interpretation, Originalism, Whittington argues, is the method that is uniquely consonant with this. For Originalism is the only means of applying the law that is faithful to what the people, in enacting laws through their representatives, agreed to. Only Originalism faithfully honors the people's authority to constitute their government insofar as the Originalist method upholds the people's expressed will concerning the nature and limits of that government. (26) Indeed, "Originalism is not an accidental addition to the constitutional framework but a necessary component of the Constitution's own vitality." (27)

As Gregory Bassham has put the case, no people can be truly sovereign if its agents are free to defy their commands by re-interpreting those commands in a way that the people never intended. (28) Thus, in Whittington's words, "The fundamental basis for the authority of originalism is its capacity to retain a space for the popular sovereign." (29)

Any alternative entirely inverts the proper lines of authority. "[M]ethods that authorize judicial activism in disregard of the intentions of the founders implicitly cast the Court itself in the role of the sovereign, authorized to remake constitutional meaning in accord with some preferred conception of the political good." (30) Properly, however, according to Whittington's line of reasoning, once the sovereign has spoken (through the adoption of a constitution), it is for everyone (judges included) to respect its will. There would be no point in adopting laws if those laws could be changed non-democratically by officials in government who are to be agents of the people, rather than their masters. For judges to alter the meaning of language would clearly deny the people's right to be self-governed. Originalism, in short, is necessary to give effect to the popular will. (31)

We can appreciate the Popular Sovereignty Argument even more fully, I think, if we step back to view its reasoning from a slightly broader perspective. If the Constitution is a text with meaning, as we routinely assume, that meaning was placed there by its authors. The Constitution is a manmade artifact. Consequently, it makes sense to ask what the people who created it were trying to do, in making it. If the Constitution were simply an object found in nature, questions of its animating rationale or the intelligent purposes behind it would not arise. Because the Constitution is a deliberate product of particular men's thought and action, however--because they wrote this' Constitution as they did in order to accomplish certain ends--to understand the Constitution and to apply it, we must treat their meanings as paramount. To follow any standard other than that would be to defy the people's authority. It would not respect their authorship of this deliberate, intentional product.

Simply put, since it is not an accident that the Constitution is what it is and says what it says, we must not treat it as if it were by allowing the meanings of its words to be altered by contemporary judges. If we recognize the Constitution as our highest legal authority, then we must abide by what it means. And what it means is what it was meant to mean. Its original meaning must stand unless and until it is altered through constitutionally specified procedures.

IV. THE WRITTEN CONSTITUTION DEFENSE OF ORIGINALISM

The other seductive argument for Public Understanding Originalism contends that the Originalist interpretive method is the natural, logical corollary of having a written constitution. Barnett and Whittington both argue that a written constitution requires originalist interpretation. (32) As Barnett sees it, "the fact the Constitution was put in writing ... mandates that its meaning must remain the same until it is properly changed." (33) By committing our constitution to written words, we make those words our law. By then accepting the Constitution's sovereignty, we accept that those words constitute our law. When we face questions of properly interpreting and applying the law, accordingly, Originalism provides the only faithful path. (34)

Part of the reasoning for viewing writtenness as entailing Originalism lies in a simple analogy. Barnett contends that Originalism is motivated on the same grounds that lead to a sort of Originalism in the legal interpretation of contracts. (35) When disputes arise concerning the enforcement of contracts, we routinely rely on the public understanding of the contract's words' meanings for the simple reason that this is what the parties committed themselves to. (Indeed, this is why virtually all contracts require that any later modifications be made in writing. (36)) The same should hold in regard to understanding the Constitution, he reasons. The Constitution's writtenness could no longer provide its benefits if its words could be interpreted in ways that were at odds with their original meanings. (37)

Observe that this reasoning retains some of the flavor of the Popular Sovereignty Argument. Insisting that we adhere to the public understanding of the time because this is what the people agreed to suggests that that agreement is pivotal. The deeper and more distinctive dimension of the Written Constitution Argument, however, derives from appreciating the deficiencies of an unwritten constitution. The British, famously, have no written constitution. The British constitution is understood as consisting in and expressed through tradition, the ongoing establishment of custom. Whittington describes it well:

   Being unwritten, the British constitution consisted of a
   tradition of practice, general understandings, and occasional
   declarations. Theoretically, Parliament was constrained by the
   need for a connection with these ancient customs, but it was
   also engaged in a constant creation of custom since every
   political and legal act became a part of the tradition of
   practice. (38)

Whittington also provides an excellent explanation of the significant deficiencies of such a system. (39) Because every legal and government act is folded into the tradition of practice that is the constitution, the British constitution could not be distinguished from the acts of government. The relationship between the constitution and the lawmaking Parliament, for instance--in particular, the extent to which lawmakers are constrained by the constitution--is, at best, ambiguous. For the constitution has no identity that is squarely independent of whatever actions government bodies choose to take. The government's power and the legality of its exercise of its power bleed into one another in a way that allows that power to exceed any firm limits. By leaving the constitution unrestrained by specific provisions explicitly articulated in language, in other words, the distinction between government activity and legality is attenuated, if not erased. Under such a system, the law is not an independent check on the activities of government; as a consequence, no government activity can be legitimately regarded as clearly off-limits, prohibited by the law. There simply is no settled, distinct law for our governors to answer to.

Whittington reports that the Founding Fathers were acutely aware of these defects and deliberately adopted a written constitution in order to guard against the dangers of the unrestrained government that such nebulous legality allows. As long as a nation has an unwritten constitution which is in continual evolution as each new action of any the government's branches reshapes its exact contours, it is impossible to fix what the constitution is. Correspondingly, "it" could offer no firm protections to citizens' rights. Committing to a written constitution, by contrast, with the attendant obligation to uphold it or to alter it through its prescribed process of written amendment, provides an indispensable check against having a law whose perpetual uncertainty makes it impossible to know what the government's powers and what an individual citizen's liberties are.

What this contrast with an unwritten constitution makes clear is that the Written Constitution Argument for Originalism turns, fundamentally, on a recognition of the purpose of government. The purpose of government is to protect individual rights. (40) The specific purpose of a constitution is derivative: to establish and publicly set forth the fundamental character of the government that is created to carry out that mission (identifying the basic rules and powers by which it will operate). A constitution cannot serve that purpose, however, if its language is pliable. The people set boundaries on the activities of their agents by naming the powers transferred to those agents and by writing specific rules and limits into law. "The people can constrain their governmental agents," however, "only by fixing their will in an unchanging text" with unchanging meaning, Whittington contends. (41) The written text is a symbol of intent, he emphasizes. (42) That intended meaning is embedded in and conveyed through language. If the text of our law is not fixed, however, what is it that people are ratifying.'? In adopting it, what are they agreeing to? (43) "To give the words of the Constitution new meanings over time" would undermine the value of a written constitution. (44) Thus he concludes that Originalism, insofar as it upholds fidelity to the law's original meaning, is the only method of constitutional interpretation that is consistent with our constitutional project. (45)

While Barnett would resist any implications of popular sovereignty that may creep into some of Whittington's statement of this argument, he invokes Lysander Spooner to make essentially the same case. A century earlier, Spooner had written:

   We must admit that the Constitution, of itself, independently
   of the actual intentions of the people, expresses some certain
   fixed, definite, and legal intentions; else the people
   themselves would express no intention by agreeing to it. The
   instrument would, in fact, contain nothing that the people
   could agree to. Agreeing to an instrument that had no
   meaning of its own, would only be agreeing to nothing. (46)

Barnett stresses that written constitutions are valuable to the extent that they "lock in" an initially legitimate lawmaking scheme. (47) Yet, he wonders, how can a meaning be preserved and the governors truly restrained if the written words are malleable and mean only what judges today want them to mean? (48) Only if government agents "cannot change the scope of their own powers can the rights of the people be in any way assured." (49) "Lock-in" is not achieved if the meaning of the writing can be changed without formal amendment. But that is what nonoriginalist interpretations of legal meaning do. Any interpretive method that permits deviation from the words' original meaning defeats the point of having a written constitution. Only a fixed text can provide the security of individuals' rights which is our reason for having a government and constitution in the first place.

While Barnett acknowledges that the meanings of words can change over time, he thinks that we must nonetheless honor the meanings that words had at the time that relevant laws were adopted. For anything other than that would contradict the meaning that the adopters expressed and that is our law. (50) One need not believe that popular will is the source of our government's authority to believe that if the Constitution is our law, it must mean what it meant on adoption. For the alternative--substituting different meanings for its various provisions--actually rejects the Constitution as the bedrock of our legal system. Countenancing such an interpretive method would "respect" the Constitution in name only. As Barnett summarizes, "constitutional legitimacy depends on what the writing says." (51)

V. CRITIQUE OF THE POPULAR SOVEREIGNTY DEFENSE

Straightforward and compelling as it can seem, the popular sovereignty defense of Originalism is neither historically nor philosophically sound.

One familiar objection to the thesis of popular sovereignty is the charge that the will of the people is a fiction. No such popular endorsement of our government has actually been given. This mythology conveniently overlooks the leagues of people who have been excluded from the "popular will"--those who did not vote in a particular election, for instance, or those who did, but favored the minority position. Even more damaging to its sunny scenario are many groups who were not legally permitted to vote at various times, such as blacks, women, or those who fell short of property qualifications. In practice, the point is, the "will of the people" at best reflects the will of some people, but far from all. Consequently, allegiance to popular sovereignty does not provide the safeguard for pure democracy that the Originalists claim.

Whittington forthrightly confronts problems with the actual working of popular sovereignty and he develops an elaborate notion of "potential sovereignty" in order to circumvent them. (52) While I have doubts about the success of this attempt to differentiate consenting to something and authorizing it and to derive actual sovereignty out of possible future decisions, what is important here is that fiddling with the mechanics of how consent is expressed merely distracts from the central issue. (53) For even if the consent of the governed were explicitly and unanimously granted, it could not provide the authority that the Originalists think it does. Neither in fact, nor in the view of the Founders, is anyone's say-so by itself the foundation of government legitimacy. Government power is the power to initiate the use of force against people. As such, its legitimate exercise rests on more than some individuals' nods of approval. A person's obligation to respect others' rights exists independently of his agreeing to respect those rights. Consequently, popular will per se--people's agreement--is not the ultimate foundation of the government's authority. Let me elaborate.

A. THE FOUNDERS' …

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Publication information: Article title: Originalism's Misplaced Fidelity: "Original" Meaning Is Not Objective. Contributors: Smith, Tara - Author. Journal title: Constitutional Commentary. Volume: 26. Issue: 1 Publication date: Fall 2009. Page number: 1+. © 1998 Constitutional Commentary, Inc. COPYRIGHT 2009 Gale Group.

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