Originally it was not Originalism

With the United States Senate about to consider a nominee to the Supreme Court, we can expect to hear about “originalism,” a philosophy or method for interpreting the Constitution. Conservatives often assert it is the only way to properly interpret the Constitution. The originalism label makes it seem as if this interpretive method was the one our founding fathers mandated. Not so. The Constitution itself does not say how it should be applied to any particular dispute, and those who framed our fundamental charter in the Constitutional Convention and those who adopted it in the states were silent about the “proper” method, if any, for later generations’ constitutional interpretations.

Originalism, instead of being an eighteenth-century doctrine, only emerged in the 1980s when President Ronald Reagan’s Attorney General Edwin Meese started advocating the constitutional jurisprudence of “original intention.” He asserted that a constitutional provision should be interpreted today to reflect what the drafters and adopters of the Constitution intended for it when the charter was adopted. This interpretive method, according to its proponents, gives a fixed meaning to the Constitution, thereby preventing “activist” judges from breathing their changeable, subjective predilections and values into our fundamental law. They believe that judging can and should be essentially a mechanical affair. The judge seeks out the original intention of the constitutional provision at issue, applies that intention to the case’s facts, and an inevitable result will be apparent. Only by applying the constitutional meaning that had been unbendingly established in the eighteenth century, the cant goes, can judges remain neutral.

The jurisprudence of original intention, however, never passed its beta test. Whose intention or purpose? That was left unstated. Perhaps the original originalist meant those who drafted the document, but problems quickly appeared with that idea. The historical record of the drafters’ intention is sketchy. James Madison kept notes of discussions at the Constitutional Convention, but we have no verbatim transcript. Madison could only record a fraction of what was said, and we don’t know what he left out. Furthermore, his notes were not published until decades after the convention and by then many of the framers had died. Others who might have corrected or added to what Madison wrote could not do so. And the framers’ thoughts had often been affected by readings of enlightenment thinkers—Locke, Hume, Montesquieu, and others. How should this affect any conclusions about original intentions?

Besides these difficulties another fundamental issue arose. The Constitution was written in the Constitutional Convention, but it was not adopted there. The draft was sent to state conventions where upwards of two thousand Americans considered and adopted it. We know little about the discussions in most of these conventions other than, usually, the final votes. Even if we would find more records of the state conventions, however, they would likely say little about specific constitutional provisions. The states were only allowed to accept the Constitution as written or to reject it as written, although many states did suggest amendments which led to the Bill of Rights Discussions of many specific provisions that might now be under dispute were unlikely under these terms. If we are to look at original intentions surely it is the intentions of those who adopted it that should count the most, but finding an “intention” out of the collective will of thousands is, to put it politely, a fiction.

With these shortcomings apparent, originalism morphed. Of course, that it morphed says something about the assertion that this is the only proper way to interpret the Constitution, but now the originalism advocates dogmatically asserted we needed to examine not the original intent but the original meaning (sometimes amended to the original public meaning) or the original understanding of the fundamental charter. Original understanding seemingly refers to the impressions, views, and interpretations of the original readers of the Constitution who were part of the adoption process, including not just those who drafted or voted on the document, but also those who wrote about or advocated for rejection or ratification of it. Seeking a common understanding from this broad group is even harder than finding an original intention out of the delegates to the state conventions.

(Continued August 24)

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