The Peculiarities of Constitutional Originalism in America

This is something I said I would address in at least one previous post, so now I am writing on it.  Constitutional Originalism in the United States is the doctrine that the Constitution should be interpreted according to the intentions of its authors.  The proviso is generally added that the intentions are judged according to the public meanings of the language used at the time.  This way of thinking has a good deal of support for libertarians and small government conservatives in the US.  I would say close to unanimous support amongst small government conservatives, and there is a reason for that: the Constitution is something from the past to be conserved.  The support from libertarians is less unanimous, but it is a distinctly popular view amongst the larger libertarian organisations across a broad spectrum of libertarians: Cato Institute, Reason, Mises Institute, and the major group for libertarian legal discussions, The Volokh Conspiracy.  You can sometime come across the view that the Constitutions was designed to further the interests of the powerful of that time, and should not therefore be regarded as something to protected almost at all costs.  I take the latter view, as a libertarian of very moderate kind (smaller state but still with income transfers to the poorest, and other forms of public expenditure).  I don’t think that moderation is necessarily the mark of a constitutional sceptic, it might be more to do with intersecting issues of attitudes towards tradition and continuity, and theories of power.  

A standard jibe against Originalists is that they treat the Constitution with religious reverence, as though it were a sacred text. It can be said that is just a cheap jibe, but even it sometimes is, even the jibe has a lot of possibly unintended content.  To get to where ı thin religion does come come in, I need to say abit more about how Originalism and why I am sceptical.

The Originalist position is that a long history of court judgements, can and should be overturned even if they come from the Supreme Court, if they contradict the original meaning of the Constitution.  Originalists may take examples of the Supreme Court judgements which entrenched slavery or racial discrimination after the abolition of slavery, and say that it was right they should be overturned with regard to the original meaning of the Constitution.  However, the Constitution was not intended to abolish slavery or establish racial equality.  There are good reasons for saying the general regard of the Constitution for the equality of citizens and the basic rights of Americans is best fulfilled through abolition of slavery and eliminating state discrimination, but that is not something that can be found in the Constitution according to Originalist criteria.  What the Originalists often seem to mean here is that the Declaration of Independence famously uses the phrase: ‘We hold these truths to be self-evident, that all men are created equal…’.  However, the main author of that text, Thomas Jefferson, owned slaves, even though with some regret, and never really adapted to the idea that people of different races could live together as equals.  The fact is the original meaning of the Constitution, or of documents that are in practice used just as much by Originalists as the Constitution, like the Declaration of Independence or the Federalist Papers (papers published in the Federalist to explain and defend the newly drafted Constitution), the latter of which has precisely zero legal standing, have nothing to say about abolition  of equality regardless of racial distinctions.  

Let’s get back to the religious issue.  The Originalists urge the overthrow of legal tradition in order to return to the text of the Constitution.  This is the early Protestant attitude to the Bible, and is still held to by those who remain true to the founders of Protestantism, such as Martin Luther and John Calvin.  Later trends in Protestantism are certainly not rejecting the study of the Bible, but introduce new issues, and here’s a few. The continuity of the Christian community with the very earliest Christian groups for whom the Bible was written, that is Christian or Jesus following groups, existed for some decades before the Gospels, which were themselves preceded by the Epistles of St Paul.  Emotional communication with God.  As historical and linguistic research undermined the unity and factual plausibility of the Bible, including the Gospels, a growing tendency to emphasise metaphorical or situational readings of the Bible, or to emphasise its power of spiritual transformation on the reader, rather than the literal truth of its text.  Of course literalist readers of the Bible are still widespread in America, and I believe that has something to do with the cultural power of Originalism.  Originalism in legal studies believes in a return to the supposedly clear and unified meaning of the Constitution, which dissolves all the misinterpretations of tradition.  

As already noted, Originalism does rely on approved texts other than the Constitution, including texts with legal force like the Declaration of Independence, and texts with none, like the Federalist Papers, though in practice the Federalist Papers are so often treated as a supplementary part of the Constitution that the difference is hardly meaningful.  Similar remarks apply to the reading of the Bible in Protestant tradition.  Of course in practice the texts of the great Reformers are brought in, as are the early Church Fathers.  

However, Protestant Biblical literalism is not the only cultural context of religious origin for Originalism.  Catholic Natural Law tradition also has a strong presence in those circles.  In this way of thinking, ancient pagan philosophy (particularly Aristotle), the text of the Bible and great Medieval Catholic thinkers, (particularly Aquinas) are unified by adherence to laws which apply to all humans, regardless of religious inclination, and which are known through the natural reason which God installs within us.  There is a strong stream of Catholic small government conservatism and conservative libertarianism, in America which sees the Constitution (and associated texts) as part of Natural Law and therefore sharing the various levels of esteem and sacred awe which are extended to other manifestations of Natural Law.

The Protestant Bible reading element in Originalism is very literalistic and conservative compared with what is to be found in post-Enlightenment Protestantism, or indeed any school of thought on interpretation of texts in literature, philosophy and so on.  The Catholic Natural Law element (the Protestant and Catholic elements can overlap) also seems to belong to the Catholicism of a past age.  If we look at philosophical work on tradition, meaning and interpretation in texts, we can consider Hans-Georg Gadamer’s book of 1960, Truth and Method.  Gadamer was a political conservative who drew on traditions of Biblical interpretation in his philosophy, and on old notions of law.  He is, however, very critical of the view that texts have a single unchanging literal meaning, and takes law for a model of method, rather than a source of unchanging meaning.

Another peculiarity of American Originalism is that some of its strongest adherents are anarchists, who must prefer an order of orders, a spontaneous order of different but co-operating legal codes, between which inhabitants of a territory can choose.  Anarchist inclined originalists include its leading academic legal representative, Randy Barnett and the Republican enthusiast for ‘constitutional government’ Ron Paul.  Paul has picture of the anarcho-capitalist writer and activist Murray Rothbard, in his office.  The oddity of anarchists who are passionate defenders of the ‘original’ constitution, seems to be in part explained by the belief that that Original Constitution is the best possible compromise given that there is a state.  It is the most perfect document that humanity can produce after it has fallen by accepting government.  So we are back to a rather sacral attitude.  People like Barnett and Paul may believe that the Constitution is the closest thing to anarchy available, but it is still very far from anarchy, it’s not even close.  It is the product of a belief in republican government as what can elevate humans, to a large degree by setting them free of the state, but never in an absolute way, never in a way which really makes the state absent.  

Following on from the paradox of the anarchist Originalists, there is the general tendency of libertarian (but not so much conservative) originalists to find rights in the Constitution, particularly in the Bill of Rights which contains the fist 10 amendments to the Constitution, which would have seemed strange to the Founders, or Framers.  Freedom to circulate extreme pornography and for children to have free speech at public high schools under the 1st Amendment (which guarantees free speech) as part of the intentions of the Framers?  I don’t think so.  I support those interpretations of free speech, but not for Originalist reasons.  The more libertarian Originalists support abortion rights on the basis of a right to privacy which appears no where in the Constitution, or any amendments, and is the outcome of legal tradition, as the most convenient way of unifying some aspects of Constitutional law.

Getting back to Natural Law, I don’t think it is irrelevant to good legal theory, but it is the source of a lot of bad legal theory.  The ‘liberal’ or  ‘living constitution’ tradition appeals just as much to Natural Law, to a belief that law rests on morality in its foundations, not the decisions of a majority at any one time, or the decisions of any political sovereign.  In practice, of course, both traditions end up putting enormous  weight on the decisions of sovereign power made in the light of the wish to maintain that power, where it appears to be adopting the ‘right’ principles.  The liberal version of Natural Law theory is a good deal more intellectually plausible though, resting as it does on some sense of historical evolution in basic moral standards.  The very conservative forms of Natural Law require us to accept that even in slave holding antiquity, natural law was the same, and in the Feudal Middle Ages. Not of course in order to defend slavery, or serfdom, but in order to try to place them outside of the essentials of Natural Law at that time.   We can of course find continuity, but continuity with transformation, and as was recognised in the Enlightenment, with the hope of moral progress.  

Less deep but interesting oddities of Originalism include the extreme defence of the view that the Welfare Clause (section 8 of article 2), giving power to the federal government,  only applies to the 13 enumerated powers.  That may have been the intention of the Framers, I think it probably was, but they neglected to make that completely explicit. They only mentioned 6 powers reserved to the states. Given that failure of explicitness, a few years later the Bill of Rights made it explicit through the 9th and 10th Amendments, which does reserve powers other than the 13 to the states and ‘the people’.  So if the Framers thought the 9th and 10th amendments were necessary, why should we thin the General Welfare clause is so clear?  Anyway, the 9th and 10th amendments, have not prevented a very extreme shift towards greater federal power.  As political momentum has moved towards greater federal powers, the courts have found ways to stretch the 13 enumerated powers.  Again I think there are good reasons for reducing federal power, but they are not Originalist ones.  The fact is Supreme Court judgments are conditioned by politics, though Originalists tend to faint at the horror of the evil politics intruding on the Supreme Court.  The power that Originalists favour for the Supreme Court makes its politicisation inevitable, and there is a manifestly political process in which the President nominates members of the Court, who are the confirmed (or not) by Congress.  No doubt judges sincerely believe they are adhering to law not politics, anyone who believes on this basis that politics does not enter the Court, as Originalists often claim to believe, is being absurd.  No cşear, constant and absolute distinction can be drawn between legal and political philosophy, though of course it useful to try to make some distinction, w,thin the realms of plausibility.  

Next post, my thoughts on a preferable position on law and constitutionality.

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