Richard Nixon once said that “we are all Keynesians now,” and constitutional theory is approaching the point where we are will all be originalists. Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack defends the Court’s abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist.
I’d like to propose a simple test for originalism–an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified. For this definition to work, one would have to distinguish between “weak” originalism (not many people at the time read the provision that way) and “strong” originalism (lots of people did). For example, some people did say in the 1860s that the Fourteenth Amendment applied to laws discriminating against women. As far as I know, nobody in 1791 said that the Cruel and Unusual Punishments Clause prohibited the death penalty. The former could be an originalist interpretation; the latter cannot.
If there was a dispute over whether a particular application was covered, then the inquiry should turn to why the decision was made. For example, why did the Framers of the Fourteenth Amendment insist that women were not covered? Was that view based on their understanding of gender differences? On background law? On what the rest of the world was doing? If those premises were incorrect and an alternative interpretation by others making different assumptions was offered back then, a court would, in my opinion, be justified in embracing the minority view as the best originalist interpretation.
There are the usual difficulties with this approach. It still relies (though less so) on the original expected application of the text, which some (notably Jack) see as the wrong way of attacking the problem. It still presents the problem of how to define the level of generality in the analysis. (Is the proper approach to abortion that nobody mentioned it in 1868, or should it be considered an example of gender discrimination, which was discussed?).
My test, though, would do two useful things. First, it would put a meaningful limit on originalism. And second, it would allow originalists to support developments in modern constitutional law that are very popular with the American people.
#1 by Mark Field on 11/29/2011 - 7:24 PM
it would allow originalists to support developments in modern constitutional law that are very popular with the American people.
My impression is that most so-called originalists have no interest in supporting such developments. They do tend to downplay their conclusions for political reasons, but they actually oppose those developments.
Supporting Joe's point about Beccaria, Jefferson was one of a small committed charged with revising the laws of VA in the 1770s to conform to the fact that it was now a republic rather than part of a monarchy. Jefferson did most of the work, and one significant change he proposed was a drastic reduction in the number of death penalty offenses (down to 2, IIRC). So yeah, there were definitely those influenced by Beccaria.
#2 by jpk on 11/29/2011 - 8:10 PM
"I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?"
Sam Alito, Nov 2 2010
#3 by Joe on 11/29/2011 - 8:21 PM
Cesare Beccaria was a major influence on the original understanding of the C/U Clause and argued against the death penalty. His writings influenced various people, in the narrow sense on this subject by restricting the reach of capital punishment, and in the broad sense that a few (e.g., Benjamin Rush) broadly denounced its legitimacy. Some most likely tied their support on the primitive nature of the penal system.
"Weak" originalism can likely show some either considered it possible that the clause applied to the death penalty and if the penal system provided an adequate alternative, that it would ban it. As applied to the states, more likely thought as much by 1868.
The "usefulness" of the test provided seems to be based on reality that "originalism" (like "judicial activism" used in a derogatory sense) is here and we need to find some way to use it that makes some degree of sense.
But, this underlines the fiction: the use supposedly provides a limit. Shag's "evolution" comment seems true if this is what we are left with. After all, a reasonable understanding of "originalism" would be that the original class of people we are relying on knew that some text would be applied using basic principles based on specific facts that change. It is unreasonable to think they knew how each provision would be specifically be applied.
For instance, many relied on natural law, which as rationalists, they knew was understood over time. Discoveries led old understandings to be overridden. They didn't know what the future would bring there. But, if we used their guidelines, applied to new situations, aren't we in some fashion "originalists"?
We are trying to be guided by them with what we know now. Certain provisions are limited in scope, so they closed this avenue. Others, they left open, expecting various things to change.
To artificially limit this to what could imagine back then, when they purposely left things open since they "contemplated" an uncertain future, might be a "simple" rule. But, like the activity/inactivity provision, it is makeweight.
Worse, it isn't what I think was originally understood would happen. Tad ironic and the use of the word gives what is happen misleading authoritative effect.
#4 by Bruce on 11/29/2011 - 9:00 PM
Actually, it was Milton Friedman who said, "We are all Keynesians now" in 1965. Nixon said, "In economics, I am now a Keynesian" in 1971.
#5 by Shag from Brookline on 11/29/2011 - 9:43 PM
Gerard, I welcome this post. I try to read (with 81 year old eyes) much of the proliferation of articles on originalism and living constitutionalism. The more I read, the more I believe that originalism is evolving into living constitutionalism. Regarding your test, particularly the second "useful thing," I recommend William P. Marshall's "Progressive Constitutionalism, Originalism, and the Significance of Landmark Decisions in Evaluating Constitutional Theory," available at SSRN:
http://ssrn,com/abstract=1952594
The "Landmark Decisions" are Barnette (1943), Brown (1954), Gideon (1963) and Reynolds (1964).
The efforts to force fit originalism is like fitting a square peg into a round hole with tools consisting of law office history.