Thursday, August 24, 2006

The Originalist Fork

Marcus of Washington Syndrome, in a response to Jack Balkin's new article (which I promise to read and comment on, but you've heard those promises before, I know), sets out the dilemma of originalism with great pith and no little substance here.

In short, to the extent we identify meaning with expected application, originalism would result in terrible things. To the extent we separate meaning and expected application, originalism has no force at all. If we seriously tried to apply "liberty" as the Framers would have applied it, we would provoke social revolution. If we say the meaning of "liberty" does not change when we apply it differently (which makes sense to me), then originalism provides no solution to the problem of judicial discretion.

Personally, I accept the "separate meaning from expected application" side of the fork. In Canada, at least, no one really wants the other side of the fork, since that involves trying to read the mind of Jean Chréien circa 1981, not a task anyone ever thought would be rewarding. But that means I have to find some other basis for avoiding judicial tyranny.

Update: Looking further at Marcus's blog, it seems he has been advancing these sensible ideas and distinctions for some time. I guess the point that originalism and the living constitution are perfectly compatible has been out there in the law school world for some time, since I can't really recall where I picked it up. I do recall reading Scalia in A Matter of Interpretation accepting Dworkin's distinction between semantic intent and whatever-he-called-the-bad-kind-of-intent, and realizing that the game was up.

1 comment:

a-train said...

Great find Pith. That's one of the things I really love about the internets.

I happen to be studying Con Law with one of the more renown (and reactionary) proponents of originalism. One of our texts is published by Regnery, edited by Edwin Meese III, and has contributions by people like John Yoo. The text takes intellectual dishonesty to new lows, often presenting one side of controversial views as accepted fact.

Still, I have to give the guy credit, he is an expert on that period of American history. And a really engaging lecturer who carefully constructs his arguments (too bad most of the students don't know who or what he's arguing against!).

I must admit, however, I really can't bring myself to share his desire/need to treat the founding of America as some sort of magical moment in history (it is quite clear he believe God's hand was there guiding every moment). This need goes a long way to explaining what drives originalism and the "American can never be wrong, ever" mentality.

Anyway, I never understood why originalism was so important to this world view until now. It's really quite amazing.

The point is that without the notion of originalism, the legal justification for breaking away from Britain and forming the USA (i.e. giving power to the "framers") is undermined. (You'll recall that most of the founders were trained lawyers)

The particular problem is Judicial Review. That is, an unelected/undemocratic body (SCOTUS) is given absolute authority to strike down laws (and to create them via interpretation) .... exactly what made King George a tyrant and justified taking up arms against Britain, i.e. it's a taxation (of sorts) without representation.

Unless, and here is the key, you have a written Constitution with determinate meaning that has been ratified by "the People." In which case, all is saved because "the People" are actually checking themselves! Not politically unaccountable judges. Now the SCOTUS can say "we didn't do it - you did, we're just following the rules YOU created." This argument goes back to Federalist 78 and Marbury v. Madison.

Of course, this argument is almost complete bullshit. Creating a perpetual constitution that is practically impossible to amend is the assumption of a right to control future generations that the founders had as little authority over as Britain had over the colonists. That is, governing without the consent of the governed.

The Declaration of Independence was like "power to the people," when the bullets were flying and they needed cannon fodder. But once the right people consolidated their hold on political power, it was time for the big walk-back - hence the Constitution. The irony is that to most Americans, the Declaration of Independence and the Bill of Rights is what they think the Constitution is. This drives the reactionary part of our society absolutely bananas.

To his eternal credit, Thomas Jefferson argued that the constitution should expire naturally every 19 years. Obviously impractical, but at least he wasn't a hypocrite.