Looks like I haven’t posted for a couple years. Probably time to fix that!
This one kicks off from a tweet I fired off, off-handedly, that led somewhere useful. “If you were wanting a paradigm case-in-point to illustrate the plausibility of legal realism, the history of legal originalism would be hard to improve on.”
A colleague asked me to elaborate. I obliged. I regard my proposition as verging on self-evidence. But his attitude was basically and reasonably: surely originalism is plausible, theoretically. If so, my quip is too quick with the ad hominem.
I get that, and it is undeniably the case that originalism has attracted clever, ingenious, considerable academic defenders, who are by no means all partisan hacks in the pay of the Republican Party.
Originalism is one of the best-refuted philosophies there is. Yeah, but you get that a lot in philosophy.
The theory is one thing and the history of the rise of the theory is another. The latter, as opposed to the former, definitely cries out for a legally realist analysis. In a sense this is trivial. Obviously any time you distinguish a theory from the institutional politics surrounding it, and opt to focus on the latter, you had better go realist. Being a realist about politics is better than being wrong, which is the alternative.
I’ll come to it. I think most court-watchers, certainly on the left, are fine these days with a no-kidding-originalism-is-right-wing-politics frame. That’s good. That’s healthy. Because it absolutely is the case. Slate has some new stuff up about it. Dahlia Lithwick and Mark Joseph Stern are reliably good at critiquing originalism. But I think there are two basic, realist points to be made that – maybe because they are SO blindingly obvious – we can be a bit blind to. Anyway, I haven’t seen them stated as baldly as they deserve to be.
Point 1
In the context of a two-party system, like the US, it will not be the case that one of two major parties dedicates itself exclusively to dogmatic defense of a debatable thesis in the philosophy of language.
A corollary of Point 1: if you see an apparent counter-example to Point 1, look behind the curtain to see what the man is doing.
People like to do the whole ‘imagine if you could go back to the 80’s and tell them Donald Trump is going to be President’ thing. But it is equally funny to say: ‘imagine if you could go back to the 70’s and tell them that the future Republican Party will, by 2016, abandon commitment to really anything besides an academically fashionable doctrine in the philosophy of language that won’t even be dreamed up before circa 2000.’
Obviously it’s wildly misleading to characterise Mitch McConnell as some academically-abstracted fashion victim, like that. But it isn’t wrong to say, politically, he put it all on the line for the judges. And his official reason for putting it all on the line for the judges was the philosophy: originalism. Everything else – even the constitutional order itself – could be staked for that win, if it came to that. On the face of it, that’s the craziest thing. Who thinks it makes sense to shake the very pillars of the republic for the sake of enforcing a purported conclusion, arrived at by one group of academics, about where to draw the semantic-pragmatics line, say? Which just goes to show: it ain’t what it seems.
Aside: one of my cherished school memories is talking to my history teacher in 9th grade. He was teaching me US history but I was interested in European history. The wars of religion and the history of the Catholic Church and heresy and all that. My interest stemmed from reading Philip K. Dick novels and gleaning some bits, that I more or less failed to digest, about gnosticism, plus thinking The Life of Brian was very funny. I had a few nerd friends and we used to insult each other, Captain Haddock-style, by calling each other ‘Albigensians’ or ‘Sedevacantists’ (although that one is more modern and I can’t imagine where we picked it up.) I thought it was amazing that people would go to war over very abstruse points of metaphysics. In the Thirty Years War a large proportion of the population of Germany died. And for what? Kind of over a theory about how, properly, to read a text. In response to these vague wonderments of mine, my history teacher introduced me to some ideas about political realism that really set me straight. It’s not that they didn’t believe this stuff. But the wars were not over pure metaphysics. Ooooh. Yep. I see that now.
OK, so the point is simple. We lefties get indignant about the FedSoc and Leonard Leo – and rightly. They are our dangerous, partisan foes. It is crazy, and crazy-making that Leonard Leo basically got to pack the Supreme Court. Still, don’t sleep on how weird it would be – were it so – for one of two major political parties to be, in effect, a one-legged stool, that leg being an academically fashionable philosophy of language.
Which brings me to point 2. What really IS going on.
Point 2
Originalism is basically fusionist glue in hermeneutic form.
I think lefties think it’s pretty obvious what’s really going on: namely, Republicans correctly perceive originalism is a lever they can keep pulling to get policy wins from the court.
Since this point is well-appreciated, and quite true as far as it goes, let me be brief, filling it in.
Conservatives like to object that originalism sometimes means conservatives lose! Eh, I guess maybe there are people out there who believe the games in casinos are ‘fair’ because sometimes the house loses. But this omits to consider that no one would run a casino unless it were, on balance, profitable. The Republican Party simply wouldn’t be all-in on originalism – of all things under the sun – unless they perceived it to be a vehicle for converting the SC into a kind of casino where they enjoy the ‘house’ advantage. The goal is to be able to reliably legislate from the bench, undemocratically. Which isn’t the same thing as winning every case. (Honestly, winning every time wouldn’t be a smart play, even if you could rig it that way. A casino where no one but the house ever won would lose customers.)
All true. But all this actually isn’t the key piece of the ‘what’s going on?’ puzzle.
Let me first turn back to a point made above, that originalism didn’t really exist before about 2000. That date may seem late. The term goes back to the 1970’s, and Bork was an originalist in the 80’s – Ed Meese, in the Reagan Administration, championed an early form of it.
But, as every student of the subject knows, something flipped, starting in the late 90’s. Basically, there was a turn from ‘original intentions’ to ‘original public meaning’. Theoretically, this was all to the good, because original intentions had all sorts of troubles. But, politically, it marked a major shift as well.
The short way to put it is this. Bork was an original intentions guy, in a very half-baked way, and he was also indignant about specific decisions like “Roe” and “Griswold” but also “Brown”. That is, he was a moral traditionalist who wasn’t down with all this liberation and sex and also civil rights stuff. He was sore about it and that fact, above all, got him ‘Borked’. He basically had a lot of quite reactionary political opinions that he wasn’t careful to conceal.
Fast-forward to circa 2000. The shift to public meaning originalism not only makes it much more defensible theoretically – or, at least, some of the most devastating objections can now be deflected – but now you have ‘libertarian’ originalists, like Randy Barnett, who really disagree with the likes of Bork, politically, on some very basic points. Barnett is a Lysander Spooner originalist, which is way different from a Bork originalist. Barnett would like it to be the case that the constitution – the ‘lost’ constitution – is a libertarian document. Barnett isn’t opposed to discovering more individual rights in the penumbras. He thinks there are more such rights, right there in black and white, when the text is read right, that have been written out, wrongly. When we read all the words, the result will be constitutionally mandatory minarchy. A very radical solution, politically, but – well, read ’em and weep, if you want big government. The rule book forbids most of this stuff. Back to “Lochner”!
The partisan upshot: originalism, circa 2000, has evolved into a perfect focus point, affording fusionist coalition building within the Republican Party. You’ve got moral traditionalists, you’ve got libertarians. (One can be even more cynical in labelling the two groups, but let’s be complimentary.) Those groups have trouble playing together because, frankly, they want different things, when it comes to lots of things. During the Cold War there is an enemy-of-my-enemy logic, bringing them together as anti-communists. After the Cold War, not so much.
Originalism helpfully re-aligns them against a common enemy: nefarious ‘judicial activists’ on the left – judges gone wild, living constitutionalists, the Warren court, undemocratic legislators-from-the-bench. Clearly, any good American would oppose such a thing!
Here again, complicated, of course, but think about it as a variant on the mostly-win casino model. Yes, originalism promises R’s that they can be the ‘house’, in the judiciary. They can put reliable partisans on the bench, to deliver the goods more often than not. But the very fact that it is genuinely uncertain whether the spoils of this set-up will accrue more to the traditionalists or to the libertarians allows both sides to put aside their ideological differences to set up the set-up. They can rally round ‘originalism’ (or ‘textualism’ or ‘balls and strikes’ or ‘not legislating from the bench’, or ‘just doing what the law says’ or ‘respecting the intent of the Framers’.) It’s rational for both traditionalists and libertarians to play the ‘originalist’ game, letting the chips fall where they may, when the winnings roll in. The very fact that it is impossible to coordinate the theoretical results more exactly in advance – more Bork or more Barnett? – means that you solve nicely an otherwise very snarly coordination problem in the Republican Party.
And, one may add: this uncertainty affords a further, welcome degree of plausible deniability. Not only can conservatives say that sometimes liberals win on the court. Each brand of conservative can point out that they lose a lot of time. The libertarians can point to all the times that the liberals win AND all the times the traditionalists win. And the traditionalists can point to all the times that the liberals win AND the libertarians win. (Isn’t that unfair? It certainly feels like it.) In this way originalism is a formula for a sense of grievance and beautiful loser-dom, while also ensuring conservatives mostly win. Which is another win-win.
And that’s the legally realist reason why the Republican Party is dedicated to nothing beyond a highly dubious doctrine in the philosophy of language. Makes good realpolitik sense.
Does it follow that originalism is wrong? Or that academic theorists of originalism are in bad faith? Heck no! That’s separate. (I mean: it IS wrong. But I haven’t argued that here.)
If you want to read this post as through a funhouse mirror, click this link.
{ 49 comments }
Martin 05.12.24 at 7:52 am
Perhaps you could explain what ‘originalism’ means, for those of us who are not philosophers of law.
John Holbo 05.12.24 at 8:19 am
Fair enough. I was assuming most folks, if interested, would be familiar with it. In a sense the post doesn’t depend on the content of it. That’s one of my points. All you need know is it’s basically a philosophy of textual meaning. But the wiki page is good for starters. https://en.wikipedia.org/wiki/Originalism
Moz in Oz 05.12.24 at 9:15 am
I did like the funhouse link, at least insofar as I could read it as humor. Yes, yes, let us read the US Constitution etc as originally intended and bring in a supreme court that will take us back to the good old days when only wealthy white men could meaningfully participate in politics. One laughs for fear of crying.
Reading the argument as brutalist realpolitic makes far more sense, as does seeing it as an intra-right fight betwen Christian theocrats and neofascists, with philosphy and other theory merely as a decorative (gold?) fringe on a newly minted certificate of ownership (for those who saw the “don’t buy me” Amber Says What! on TV/youtube). And liberals, classical or otherwise, as the third party in a two party state.
By coincidence David Brin made Originalism the subject of his weekly rant this week: https://davidbrin.blogspot.com/2024/05/romanticizing-past-is-fear-of-future.html
Take the Mad Right’s relentless incantation-fetish about the 1950s, an era when – for sure – middle class white guys felt they were on top. Though – um – even they, in vast majority, voted Democrat! Back then, the Greatest Generation guys remembered how FDR et. al. rescued the nation from previous, monstrous stupidities — like an earlier effort by rich lords and inheritance brats to re-establish feudalism. Those veterans, bolstered by New Deal policies and the GI Bill, set in motion the greatest surge in productivity and prosperity any nation ever saw.
Still, that unparalleled growth and progress was incremental and comparative! It was a build toward better days, not a culmination or lost paradise. Indeed, YOU have a duty, in case any of you ever face romantics who actually actually claim that America was a better place in the 1950s! …
Matt 05.12.24 at 10:24 am
For what it’s worth, originalism has many supporters in Australia, at least in the academic legal profession. Jeffrey Goldsworthy, one of the most eminent Australian constitutional law theorists, is the best well know, but far from the only one. The idea here is supposed to be that any non-originalist theory would allow judges to usurp power vested in the people and elected officials by the constitution. That doesn’t seem right to me, but it’s a respected view among respected constitutional theorists in Australia.
I don’t read all that many strictly constitutional law decisions in Australia (though I’ve read a good number of administrative law and migration law cases that turn on constitutional principles) but it’s seemed to me that Australian High Court judges are less concerned to spell out the theoretical basis for their decisions than US Supreme Court Justices have been. I’m not always a fan of the legal reasoning in these case, and the lack of a bill of rights gives the judges fewer “abstract” clauses to work with, but it’s hard for me to see too many obvious cases where “originalism”, either as a good-faith intent to apply original meaning, or a bad faith intent to cover up imposing the current views of the conservative party (as it usually is in the US) is doing much work in actual legal decisions in Australia, so it’s possible that here it’s mostly an academic and not practical legal matter. If there’s an Australian constitutional lawyer in the audience perhaps they can say more.
John Holbo 05.12.24 at 11:33 am
“For what it’s worth, originalism has many supporters in Australia, at least in the academic legal profession.”
Oh, sure, lots of very smart originalists. I probably should have made it clearer in the post: the realist account of the rise of originalism, in US politics, is valid even if originalism is a really interesting, well-thought-out view. Even if it is a great view, the fact that the entire R party is in support of it is not due to that. Major political parties aren’t going to be uniquely dedicated to promoting even really good theories of language and interpretation for the sake of those good points.
If originalism really were self-evidently correct, and all competitors to it were self-evidently fraudulent, things would be a bit different. But we aren’t in that position. We are in a position in which there are probably a dozen serious competing views, and the originalist ones are, at most, about the same as the others: with attractions but also serious defects.
No one should dismiss originalism just because R’s obviously have partisan reasons for favouring it. But, by the same token, no one should affirm originalism on the grounds that it is uniquely suited to ‘take politics out of judging’. That’s how R’s sell it. But the fact that they all buy it itself proves that advertisement is false. They wouldn’t be interested in a product that did what they say this one does. So the fact that they are interested in it, for what it says on the tin, proves it doesn’t do what it says on the tin. But maybe it has other virtues.
DocAmazing 05.12.24 at 11:54 am
If the Republicans were actually sincere originalists, that might be a little less revolting, but the Roberts Court’s treatment of the Second Amendment is a triumph of motivated editing and goofy history.
Ebenezer Scrooge 05.12.24 at 2:40 pm
What DocAmazing @ 6 sez. Also, the Eleventh Amendment and the Alden case, where the Supreme Court pointedly decided to ignore the history of the Eleventh Amendment, which had nothing to do with the desired result: state sovereign immunity. Or, for that matter, Shelby County, which read much of the Fifteenth Amendment out of the Constitution.
In other words, the house always wins, at least when there are major stakes on the table. The formal rules are set up so that it can lose sometimes. But it only loses to the low rollers.
Cervantes 05.12.24 at 3:26 pm
I think you’re making the mistake of thinking they take the idea of originalism in any way seriously and perforce must sometimes apply it in ways that doesn’t get their desired outcome. The conservatives on the Supreme Court and the Federalist Society legal movement care only about results, and they will gladly use any tortured reasoning to get there. Originalism is attractive as a brand because it usually let’s them go back to the 18th or 19th Centuries, which is where they want to live. But if it doesn’t work in a given case, they’ll just make up a lot of bullshit.
steven t johnson 05.12.24 at 4:21 pm
Point one: In the context of the US two-party system, it is the case that one party may find it expedient to dogmatically defend a philosophy of language that allows it to ignore reasonable interpretations of the Constitution while claiming to be more constitutionalist.
Point two: The less coherent the philosophy of language is, the less likely it is to become a popular issue, leaving it as a default, like endorsing motherhood.
But then it’s pretty certain I just don’t understand. So far as I can see, the Federalist Society routinely raises issues about corruption of the judiciary. If there was ever an organization that justified the RICO statute, isn’t it the Federalist Society?
Dan Riley 05.12.24 at 4:28 pm
My reading of the founding commentaries is that the US constitution was hoped to be sufficiently flexible that it could accommodate future changes in sentiment without requiring violent revolution. Of course, it failed, and so we got constitution 3.0 by way of the reconstruction amendments (which the funhouse mirror seems to think had little consequence, and the current court seems determined to just pretend they aren’t there), but there was still a goal of some flexibility. The current court’s strange version of “history and tradition” seems designed to strip that away. I have a hard time believing that’s justifiable by any version of originalism.
Furthermore, the US constitution was obviously a political document, full of compromises that the authors expected would be adjudicated later. The founding fathers didn’t even agree on an overarching interpretation during the ratification debate, certainly not after. How do you then imagine a coherent public understanding (a: you don’t, just cherry pick the bits you like, bias instantiated by law-office history).
So what do we do, if the original public understanding was that the original public understanding shouldn’t decide the interpretation of the constitution in perpetuity? What if an honest originalist really ought to conclude that originalism is self-contradictory?
Doug Weinfield 05.12.24 at 6:10 pm
Where is the “Major Issues Doctrine” founder-or even permitted!-in the words of Constitution, or in the associated historical documents?
William Berry 05.12.24 at 6:51 pm
Welcome back JH
I’ve really missed your light[er] touch. Things can get rather ponderous around here these days.
The timber is being pressed and kiln dried by, I don’t know, maybe too much boring “sincerity”.* Or something.
You’re just the one to twist that shit all up again. Things make a little more sense that way.
*The redoubtable “Bruce Wilder” is no longer with us, but it seems his style of “deep analysis” (which it’s NOT; it’s just mostly meaningless etherealization) has infected at least half the commentariat here.
Sandwichman 05.12.24 at 7:37 pm
Still not clear on where the motor homes and flights on private jets to fishing lodges fit in all this.
jsrtheta 05.12.24 at 9:11 pm
As a longtime student of the Second Amendment, I have a particular, practical interest in “originalism”. I have also tangled with the concept as an attorney.
The persistent weakness of the exercise has been characterized by its inability to incorporate valid history (to the extent there is such a thing) and its fungible nature.
In this context, it has resulted in many deaths. So, there’s that. Originalism itself is a misnomer, a mistaken belief that there is such a thing as an original, common understanding. There isn’t, and there never was one.
engels 05.12.24 at 10:46 pm
Can anyone explain where the British approach to statutory interpretation fits into this debate (or is that comparing tomatoes with potahtoes, since we don’t have a codified constitution?
bad Jim 05.13.24 at 2:31 am
Originalism is perhaps an attempt to treat law as theology, with the constitution as inerrant scripture from which a congenial meaning can be extracted using the proper hermeneutics. It is to be expected that different practitioners will not obtain convergent results.
Alan White 05.13.24 at 5:51 am
Great to have you back John.
Why originalism can think that pronouncements in one time can be somehow correctly parsed for all times is as bad Jim says very nearly a theological tact on law. The Founders never intended women or minorities could have suffrage but that’s clearly not true now, just as some Christians refer to scripture to defend LGBTQ rights and such. Originalism is an empty hall of mirrors.
noone important 05.13.24 at 8:16 am
@Alan White “Why originalism can think that pronouncements in one time can be somehow correctly parsed for all times is as bad Jim says very nearly a theological tact on law. The Founders never intended women or minorities could have suffrage but that’s clearly not true now…”
Wait a minute. Originalists think that the details of what’s become true now need to be made clear by the legislature (by “the people”), not by a handful of judges. Why is this a bad idea?
MisterMr 05.13.24 at 12:33 pm
I understand the “realist” interpretation of originalism: laws and the constitutionhave been written over a long span of time, so if there are two party and one is “traditionalist” and the other “modernist”, the traditionalist party stands to gain if all previous laws are interpreted in the way people would have interpreted in the past, because even if it is possible to have amendments and law changes, there will always plenty of detail that is not legislated explicitly, so if one determines that all these details must be interpreted the way they were interpreted when written, this makes the job of the “modernists” impossible, since they now have to explicitly legislate every single implication and detail.
However, on the other hand, what are the limits of interpretation? Evidently the modernists too do not mean that the judges can say whatever, so some parameter of adherence to the law should still be there. Is the parameter: let’s accept what is written explicitly, but we can interpret what is left implicit?
anonymous 05.13.24 at 1:48 pm
? Originalism simply means the supreme court interprets laws as written: if you want new laws, that’s what the legislature is for.
Non-originalism means the supreme court should interpret laws the way they (or, rather, their class) wants to.
Its not hermaneutics: its democratic theory.
Sometimes a cigar is just a cigar.
anon
Cervantes 05.13.24 at 1:58 pm
noone– the problem with that argument is that originalists frequently overturn what has been made clear by the legislature. That is in fact their entire project with Second Amendment jurisprudence, environmental regulations, consumer protections, labor rights . . .
J, not that one 05.13.24 at 2:48 pm
I welcome your return to writing some of the most depressing posts I’ve ever read.
But I do wonder how long the narrative of “fusionism” is going to survive the current trend of searching for the actual origins of American conservatism, beyond the myth of William Buckley and the myth of the Venusian rise of the movement from the sea of the fear of Stalin. For a couple of decades the narrative (and the complaint that liberals didn’t do enough research into conservative thought) served very well to block anyone who might look too closely.
All this is moot though if we need to persuade large numbers of people that it really is the case that “citizens” could obviously mean “white men” in 1790 but can include Black people and women now.
LFC 05.13.24 at 5:25 pm
anonymous @20
The SCOTUS sometimes interprets statutes (i.e., laws); sometimes interprets constitutional provisions; and sometimes it does both of these things in the same decision.
“Originalism” strictly speaking is concerned only with the interpretation of the Constitution, not the interpretation of statutes. Your view that originalism is “democratic theory” is not right: it’s not democratic to insist that the “public understanding” (assuming there is such a thing) of what a particular constitutional provision meant when it was adopted should govern everyone today.
Trader Joe 05.13.24 at 6:46 pm
I suppose the issue I take with the concept of originalism is that it at best should be a starting point for considering a topic but rarely should it be an endpoint. It would seem in interpreting any writing its not a bad starting point to consider “what was trying to be said here and why.” But just as Shakespeare, the Bible and Lord of the Rings all mean something different to us today than when written, the first intent is not the only possible interpretation.
The constitution has already incorporated numerous examples of places where the original has been modified by subsequent amendment and in some cases re-amendment (others have cited specifics).
If it’s possible to defeat Roe on an originalist interpretation, it should also be possible to embrace (for example) substantially all meaningful gun control regulation. The reverse of these would also be true. The ultimate problem being not so much originalism per se, but the routine inconsistency of utilizing the output of that as a framework for judical ruling.
Stephen 05.13.24 at 7:54 pm
noone important@18: “Originalists think that the details of what’s become true now need to be made clear by the legislature (by “the people”), not by a handful of judges. Why is this a bad idea?”
This is sometimes a bad idea when the unimportant people, who are stupid and ignorant and cannot always be expected to vote the right way, are likely to disagree with enlightened judges who can be trusted to decide in accordance with progressive opinion.
It gets a bit more complicated when you have judges like the current US Supreme Court.
engels 05.13.24 at 11:09 pm
Originalism simply means the supreme court interprets laws as written
No, as can be seen in this amusing example.
https://www.lawscot.org.uk/members/journal/issues/vol-68-issue-03/statutory-interpretation-the-always-speaking-principle/
noone important 05.14.24 at 9:29 am
Stephen, 25
You know, Poe’s law, you need to indicate sarcasm somehow.
rcriii 05.14.24 at 12:32 pm
Welcome back Mr Holbo, missed you since I left xitter
Bad Jim’s comparison between originalism and biblical inerrancy is a good one. Especially when you consider that in the US, biblical inerrancy was adopted in order to bolster the theological defense of slavery. Fred Clark is very good on this:
https://www.patheos.com/blogs/slacktivist/2015/04/23/inerrancy-white-evangelicals-and-the-sin-of-racism/
LFC 05.14.24 at 1:30 pm
engels @26
As I mentioned earlier, originalism in the U.S. context, which is what J. Holbo’s post refers to, has nothing to do with the interpretation of laws. It refers only to the interpretation of the Constitution. (Originalism should not be confused with textualism, though they are related. Indeed your example shows how the text of an old statute has to be read wrt its “original” meaning. But again, the word “originalism” in its U.S. context does not refer to how one should read statutes. Rather it’s a theory of how to read the Constitution.)
steven t johnson 05.14.24 at 2:47 pm
“Originalism” Hmm.
The second amendment refers to a “well-organized militia,” and ties the militia’s right to bear arms to the needs for the “security” of a free state. The Militia Act of 1792 ( https://www.mountvernon.org/education/primary-source-collections/primary-source-collections/article/militia-act-of-1792/#:~:text=The%20Militia%20Act%20of%201792%2C%20Passed%20May%208%2C%201792%2C,Militia%20throughout%20the%20United%20States.) provides an example of actual thinking on what that meant. (Requiring militia members to actually have guns was a surprisingly important aspect perhaps.)
Contra Heller, there’s nothing in any of this to suggest that individuals held an inalienable right to bear arms. The very phrase “well-regulated” implies that badly regulated or entirely disorganized bodies (like the infamous Paxton boys of the then-recent past) had no such right at all. The amendments soon added expanding presidential authority over the state militias, ditto.
To me, it looks very much like whoever actually inserted “well-organized” into the draft intended a deliberate ambiguity in hopes of having the later legislation suit them. The original intent was to kick the can down the road.
Even more, what does it mean to explicitly provide for amendment? Except for the provision all states have equal Senate representation, which it is forbidden to change even by amendment, when the Constitution is amended then the original intent is annulled, replaced by the intent of the amended Constitution. In the end originalism is the requirement that when the Supreme Court wishes to, it can overrule mere majority legislation to demand a sustained supermajority of state (not the people) to explicitly amend the Constitution. This is by definition anti-democratic in my opinion. Of course numerous people think such overruling of majority rule is the very essence of real democracy, but evidently I disagree.
CJColucci 05.14.24 at 4:05 pm
Doug Weinfeld:
The major issues doctrines, more commonly known as the major questions doctrine, has two aspects.
First, it can function as a reasonable rule of thumb when deciding whether a statute authorizes a regulation or other action by a regulatory agency. That doesn’t make it a constitutional issuer. If it’s genuinely unclear whether the statute authorizes the challenged regulation or action, it is just common sense that if the challenged regulation or action is surprising and a Big F*****g Deal, it may not be authorized by the statute. (I think it was Justice Kagan who said “Elephants don’t hide behind mouse holes.”) That is, admittedly, vague, and that’s a problem if you take it as more than a common-sense rule of thumb and try to make a bigger f*****g deal out of it than it is. Any Court-watcher can come up with examples that look as if the Court is using the major questions doctrine as if it can objectively justify a subjective and unprincipled sense that, whoa, this regulation just goes too far, goddammit.
Second, in constitutional cases, I don’t think it has any place at all, and is being used as a way to sneak the long-discredited non-delegation doctrine (which, admittedly, had a good year in 1936, but not before or since) back into constitutional discourse.
John Holbo 05.15.24 at 7:22 am
“Originalism simply means the supreme court interprets laws as written.”
There are defensible articulations of originalism. This is not one of them.
mw 05.15.24 at 2:48 pm
steven t johnson: “This is by definition anti-democratic in my opinion. ”
Yes, of course. It is anti-majoritarian. The Bill of Rights itself is fundamentally and intentionally anti-majoritarian. By design, infringing upon (or eliminating guarantees for) basic individual human rights requires a nationwide supermajority to amend the Constitution.
steven t johnson 05.15.24 at 4:02 pm
mw@33 maybe didn’t finish my comment? “Of course numerous people think such overruling of majority rule is the very essence of real democracy, but evidently I disagree.”
Of course if mw is determined to disagree with me no matter what, there is nothing I could say that would be heeded. Nonetheless the notion that democracy is the system consequent to the natural rights of individuals, which seems to me to be the unspoken premise of this defense of antimajoritarianism, strikes me as having nothing to do with the actual US Constitution’s antimajoritairianism. The natural rights the US Constitution perceives as essential are primarily rights of property, not of persons.
Quite aside from the glaring ambiguity of the references to slavery, i.e., the right to own property (in human flesh,) the essential importance of clauses prohibiting impairment of contract or issuance of currency by the individual states, deemed more important that the afterthoughts embodied in the Bill of Rights shows that. Even there the Tenth Amendment insists on the powers, rights, of the states. (The timid reservation “or to the people” that concludes doesn’t mean anything. See Dobbs for the latest example.) The Bill of Rights gave zero rights to individuals. The First Amendment was entirely compatible in practice and theory with established churches provided they were state shurches.
The theory that the Kentucky and Virginia resolutions were the expression of the one true universal democracy is falsified I think by the real world history of states’ rights. States’ rights are not people’s rights. The Ninth Amendment may chatter of rights retained by the people, but it is content-free, merely announces a principle of interpretation. It is striking how no version of originalism I know of uses this principle of interpretation even though it is part of the slaverholders’ Constitution! The concrete version, the Tenth, as I noted, is about states.
But all this is actually very widely accepted among conservatives—not my personal contention that antimajoritarianism is antidemocratic—which is why the more candid ones complacently announce the US is a republic, not a democracy.
somebody who remembers bush getting 11 percent of the hispanic vote 05.15.24 at 4:37 pm
good insight. the key turning recent point in your history of originalism is kavanaugh’s appointment. now that there are two rapists on the court and a 5-4 even WITH a conservative feeling queasy they don’t need the fig leaf anymore. they can just straightforwardly order that its illegal to vote for a democrat or to read a book that has a black person in it.
engels 05.15.24 at 7:02 pm
originalism in the U.S. context, which is what J. Holbo’s post refers to, has nothing to do with the interpretation of laws. It refers only to the interpretation of the Constitution
I thought we were talking about “a debatable thesis in the philosophy of language”. I don’t see how that can only apply to one document (“I’m a Russellian descriptivist but only for War and Peace”). Btw if the Constitution isn’t law then wtf is it? [IANAL]
LFC 05.16.24 at 4:02 am
engels @36
One could apply an “originalist” analysis to statutes (laws passed by the legislature), looking at what the legislators intended a statute to mean or do, but the approach conservative judges in the U.S. take in that realm is, I think, usually more textualist, less originalist (i.e., they generally “privilege” the text of a statute, not its legislative history, though no doubt making exceptions when it suits them or when they are forced to look beyond the text because it’s too indeterminate or ambiguous).
The Constitution, as the country’s “fundamental law” (to quote a website maintained by the Administrative Office of the U.S. Courts), is different from laws passed by Congress or state legislatures. And the word “originalism,” as far as I’m aware, usually refers to an approach to interpreting the Constitution, at least as the word “originalism” is used in discourse in the U.S.
I’m not sure I’d describe originalism as a “debatable thesis in the philosophy of language” (I assume you’re quoting the OP there), though I guess one could describe it that way. You’ll note in the OP the reference to the shift from “original intent” to “original public meaning.” These are approaches to how to interpret, in this case, a particular document (namely the Const.).
For example, the Fourth Amendment bars “unreasonable” searches and seizures. What does “unreasonable” mean in any given case? Or how do you balance the individual interest in privacy vs the govt’s (and by extension the public’s) interest in fighting crime (or etc.)? The “original public meaning” approach would perhaps ask what ordinary people (or legally informed people) walking down the street in late 18th cent. New York or Philadelphia would have thought was an unreasonable search, drawing on writing or other evidence from the time. However there were, for example, no cell phones in the late 18th century so you can’t really ask whether someone in those days would have thought that a particular search of a cell phone was reasonable or not. So even originalist Justices sometimes have to look at the body of, in this example, Fourth Amendment precedents (the Fourth Am. cases the SCOTUS has decided over the years) because originalism isn’t really going to answer the question. And if you search on “basic Fourth Amendment doctrine” you’ll see that the SCOTUS has created a bunch of rules over the years, some of which might have some connection to an “original public meaning” and some of which almost certainly don’t.
mw 05.16.24 at 10:29 am
steven t johnson @34
“Of course numerous people think such overruling of majority rule is the very essence of real democracy, but evidently I disagree.”
Do they? Who thinks this? The US constitution prevents simple majority rule in certain selected areas (e.g. rights guarantees), but for the vast majority of government functions, majorities rule. Do I think these carveouts were wise? Yes (is the left now generally opposed to the bill of rights now!?). But is it the ‘essence of democracy’? I don’t think there’s any such thing as ‘the essence of democracy’?
anon 05.16.24 at 8:33 pm
Pedantics anyone?
“originalism in the U.S. context, which is what J. Holbo’s post refers to, has nothing to do with the interpretation of laws. It refers only to the interpretation of the Constitution”
“Originalism” strictly speaking is concerned only with the interpretation of the Constitution, not the interpretation of statutes.”
But there is no reason to interpret the ‘constitution’ unless there is a contemporary law that is inconsistent with it.
““Originalism simply means the supreme court interprets laws as written.”
There are defensible articulations of originalism. This is not one of them.””
On the contrary: its perfectly fine for a blog post. Everyone knows what I mean, its pithy and clear. You can see the forest for the trees: you are simply choosing not to for rhetorical effect.
Anon
engels 05.17.24 at 12:33 pm
This makes the same point wrt COTUS.
https://origins.osu.edu/read/originalisms-historical-problems-supreme-courts-embrace-controversial-theory?language_content_entity=en
MisterMr 05.19.24 at 11:15 am
@ anon 39
No, if you could “interpret the law as it is written” you would not need originalism, that would be “textualism”, it is a different theory.
Originalism is OK with adding “impicit” meanings in the law, as long as [they think that] said implicit meanings were there at the moment of writing.
The problem is that one can stretch these implications at an extreme level, for example if the law says that the president can be fired for immoral conduct, one could argue, via originalism, that at the time of writing being gay was immoral conduct, and so gays can’t be elected to presidency, even if this is not written anywhere.
engels 05.19.24 at 11:35 am
Sorry, I posted #40 before #37 appeared: thanks for the explanation.
steven t johnson 05.19.24 at 1:03 pm
mw@38 is mostly a series of gotcha rhetorical question, but does say ” The US constitution prevents simple majority rule in certain selected areas (e.g. rights guarantees), but for the vast majority of government functions, majorities rule.” This I think is manifest nonsense. The existence of the Senate alone means the routine functions of the legislative branch are antimajoritarian.
Also, the strong presidency is definitely antimajoritarian on issues of war and peace. I think if the majority of the people cannot decide such issues they are in a very real sense not even free.
And the doctrine of judicial review where originalists decide what is Constitutional according to their personal authority if equally not democratic. mw may think the SCOTUS/NRA version of the Second Amendment is the democratic rights of the (hateful) people who want to be able to kill when they “need” to and the tax privileges of churches are equally depraved desires of the majority. Personally I’m not so sure they are, that the anti-majoritianism of the Constitution has ensured many a squeaking wheel, i.e., politically powerful minority (which is not an oxymoron in the US Constitution!) gets the grease.
So, no, defending the anti-majoritarianism of the US Constitution is not the commitment to democracy implied. And yes, that’s why I think mw for one is in fact defending anti-majoritarianism as genuinely democratic, thus “wise.” I think there shouldn’t be a Senate at all, much less that acreage gets equal representation, rather than population. In mw’s defense of the proposition the claim that there is no “essence” of democracy—even though there may be equivalents like real, genuine, true, effective and so on—is very much the kind of irrelevant quibbling “originalism” is meant to encourage.
Again, I think mw is very much of the school that believes anti-majoritiarianism is an essential component of democracy rather than an impairment of it.
engels 05.19.24 at 1:43 pm
Everyone knows what I mean
Spoken like a true originalist ;)
noone important 05.19.24 at 4:21 pm
LFC 37
If those guys from the late 18th century explicitly specified the media covered by the 4th amendment, then you would have a point. But they didn’t (as far as I know, ianal), and thus it seems that in this context a personal cell phone is no different than a stack of personal papers. Am I wrong?
LFC 05.20.24 at 2:17 am
n.i. @45
The Fourth Amendment refers to “persons, houses, papers, and effects,” and I believe — though I’d have to check — that the Roberts Court has treated cell phones roughly as your comment suggests. I was trying to make a broader, more general point — and perhaps I chose a bad example — namely, that “the original public meaning,” assuming for the sake of argument one can be agreed on (which is often not the case), will not be a particularly good guide to resolving a lot of contemporary issues, partly because in some cases the societal setting has changed too much.
However, I should probably leave these issues to people who have followed the jurisprudence and the commentary more closely than I have (I haven’t read a scholarly book on constitutional adjudication in ages, I don’t keep up systematically with what SCOTUS does, and I have not read the defenses of originalism by originalists, except occasionally perhaps as they appear in a judicial opinion). My impression fwiw is that an originalist sensibility of some sort, if I can use that phrase, is more widespread among judges than it was several decades ago, and even liberal judges in their confirmation hearings have made originalist-sounding remarks (e.g., Ketanji Brown Jackson did, as I recall). Whether this is for purely political reasons is perhaps an open question. I’d note that most Republican Senators (all except for three, I think) voted against her confirmation and would have done so pretty much regardless of what she said at the hearings.
mw 05.20.24 at 12:33 pm
“The existence of the Senate alone means the routine functions of the legislative branch are antimajoritarian”
The rights guarantees are not the only anti-majoritarian features. The Senate and Electoral College are federalist features that were included to make smaller states willing to join into a union with much larger states whose concerns would otherwise swamp their own. But, of course, first-past-the-post elections in Parliamentary systems are comparable to the American Electoral College in their anti-majoritarian effects (as with the EC, what matters is the number of seats/electors a party wins, not the absolute number of votes it garners). I am not a fan of the modern ‘imperial presidency’, but in terms of war and peace, a president unilaterally engaging in wars is arguably at least as majoritarian as having Congress declare war — after all, isn’t the presidency more easily changed by a national majority of voters than the makeup of Congress?
steven t johnson 05.22.24 at 2:16 pm
Direct question “after all, isn’t the presidency more easily changed by a national majority of voters than the makeup of Congress?” No, it is not. The Constitution was set up to be non-partisan, then changed to be a legally privileged two-party arrangement, in which the parties are not programmatic parties that aim to enact their platforms. They all have a set of policies and abstract principles for campaign purposes but everyone knows you cannot rely on parties to do what they claim they will. Parties in the US are franchise operations, branding exercises.
mw claims not to be a fan of the imperial presidency but as a defender of anti-majoritarianism (unintentionally or not?) is a proponent of the imperial presidency. The lesser importance of the president’s quasiindependent warmaking prerogative when the country was small and weak is irrelevant: It was always imperial and meant to be, for the future if not in 1787. I suppose the Neutrality Proclamation of 1793 is the first example, though overlooked. To my mind, Jefferson certainly didn’t think it was easier to reverse a presidential decision than a congressional one.
mw 05.23.24 at 2:36 pm
“mw claims not to be a fan of the imperial presidency but as a defender of anti-majoritarianism (unintentionally or not?) is a proponent of the imperial presidency. ”
No, it’s simply not. Features of government that cannot be infringed without supermajorities (and therefore protect minorities), have nothing to do with the presidential abrogation of powers that should rest with the legislature. War-making is only one example. For others, all you need to do is look at the endless examples of ‘executive orders’ issued by presidents of both parties during recent decades. The US founders were wrong that Congress would jealously guard its powers. Members of Congress, it turns out, like nothing better than being able to evade responsibility and avoid taking a stand on major issues. Doing so might cost them votes. whereas if they leave it to the President (and even better to bureaucrats in executive agencies), their hands remain clean and they cannot be blamed.
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