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December 01, 2007



I enjoyed the afternoon panel at the CLE. Judge Landau did a good job of delineating the problems with the originalist approach, and those surrounding historical interpretation more generally. I find those arguments convincing, and I don’t think that they require further comment.

My sense is that one of the advantages of an originalist approach is that, if successful, it can fix constitutional meaning. It is meant to have a good chance at success in this partly because it narrows the range of factors relevant to constitutional interpretation to those functioning at a particular point in time. The unique feature of this position is precisely this temporal limitation.

This temporal focus leads to an important virtue of this approach: it takes pre-commitment seriously. That is, (and speaking loosely,) when we drafted and ratified the constitution, we were making a deal with our future selves about how our self-governance goes, including provisions for how we can change the terms of the deal. It’s like Odysseus binding himself to the mast.

While this virtue is not unique to the originalist approach and the pre-commitment idea has its own problems, it is an interesting angle for analysis. It came up obliquely in the panel discussion, and I think it merits further thought.

Les Swanson

In response to anonymous:

You are suggesting that "originalism" is a good thing because:
1) It constitutes a serious pre-commitment to certain basic rules or principles, and this is what a constitution is supposed to do;
2) It tends to fix the meaning of words, phrases, etc. to a particular
3) It honors the idea that it is a constitution we are dealing with - and if you want to change the provisions of the constitution don't do it by judicial intervention, do it by amending the constitution.

Here are some questions to consider about "originalism."

1) Did constitutional framers want to fix "meanings" to a particular period of time or did they want to fix some general rules and principles (separation of powers, government restrictions of entering persons' homes, freedom of speech, etc., etc.,) without limiting new understandings of original rules and principles based on culltural, scientific, and language changes in an evolving society?

2) Did the constitutional framers give any indication of their attitude toward question 1 by how difficult or how easy they made it to amend the constitution?

3) As a people, do we prefer to take our chances with a judiciary interpreting constitutional provisions to dealing with constant attempts to revise the constitution? How does our answer to this question change as judges become more or less willing to change the meaning of constitutional provisions and under what circumstances?

4) Surely it can't be too easy to change the meaning of constitutional provisions given that it took almost a century of racism, brutality, and death for the U.S. Supreme Court to interpret the Equal Protection Clause, a post Civil War Amendment, to prohibit racial segregation in public schools. (OK, this one is a statement not a question)

5) Isn't it better to give the Court some leeway in interpretation with the understanding that if the Court goes too far it will meet with serious political consequences, including the possibility that the people will not change the constitution but will change the methods of selection and retention of those who are entrusted to interpret it? Otherwise, we may be limited to living in a very rapidly changing modern society with 18th century rules, including 18th century moral understandings.

Consider the issue of cruel and unusual punishments posed by the VIII Amendment.

1) Were the constitutional framers here concerned with excluding a specific set of "cruel and unusual punishments", those generally believed to be such by either the framers or the people?

2) Or, were they concerned that a people in a democratic republic should never engage in what is currently believed to be cruel and inhuman punishment? If this was their concern, would it have been because engaging in cruel and inhuman punishments undermines a people's confidence in the machinery of punishment? Or, because administering cruel and inhuman punishments tends to destroy a people's humanistic self-image and may cause
disengagement of citizens from participating in and supporting their government. Do we need to be attentive to not over-reacting to our reactive, human feelings of condemnation, disapprobation, revenge, resentment, etc. lest we lose, for example, any feeling of exceptionalism as a people who founded a republic on a vision of persons quite different from historical antecedents?

3) Perhaps Europeans have learned after centuries of wholesale killing that having the state engaged in killing is counter to a new conception they have of themselves as enhancing life rather than destroying it. So, is their experience and their laws excluding capital punishment anything our Court should pay attention to? I won't go into the arguments pro and con, but will only suggest this: After the U.S. experiences in Korea, Viet Nam, and Iraq will the American people be more or less willing to accept state killing as a response to criminals' killing? Because of terrorism, I imagine that there are strong currents in both directions now in the U.S.
In other words, people may be sick and tired of war causing civilian and military deaths, but may be quite willing to see terrorists receive the death penalty. It is probably public opinion, more than anything else, that will determine the Court's interpretation of "cruel and unusual" punishment.


Imagine your fate resting in the hands of an octogenarian's view of what constitutes "furthering human flourishing," with no check of that decision by the executive or legislative branches. That is pragmatism, and it sacrifices consistency, clarity, and reason for expediency.

It is difficult to pass laws - this was done purposely to ensure that extreme ideas did not become the law. Pragmatism alters that theory, and creates a group of "super legislators" who somehow believe they know what is best for society.

And how are these super legislators to make the determinations of what is "moral" and what "furthers human flourishing"? Are they going to conduct polls? Are they going to hold town halls? Consult interest groups? Read the editorial pages in the New York Times? Thanks but not thanks.

I don't want either Antonin Scalia or Ruth Ginsburg deciding what society needs to do to flourish, because I'm not sure either one of them have any better idea than the rest of us. Imagine how this theory would play out under our current Court. Anthony Kennedy would run our country. That's why we elect a Congress and a President.

Sometimes I like how the vote turns out, sometimes I don't. But at least I know that whatever decisions the legislative and executive branch make, they will be be vetted through a process with checks and balances, and made by a greater cross-section of Americans, so that everyone's opinion has a better opportunity of being presented in the debate.

Les Swanson

To anonymous:

You have serious reservations about full-bore pragmatism as a judicial philosophy. So do I. Pragmatists tend to be skeptical about truth and high on hope. A full-bore pragmatist will be skeptical of all theories except one: his own theory that all theories are defective. Pragmatists also tend to discount history and place great hope on social experimentation to improve the lot of human beings. I prefer a reined-in and less dogmatic pragmatism - Cass Sunstein at Chicago, for example, as compared to Richard Posner. But, I also believe that good moral reasoning must begin from some basic positions that are taken to be true at least for now and the foreseeable future - such as "slavery is wrong" (a basic beginning point for John Rawls) or even more fundamentally that each person is entitled to a sense of dignity and to some basic respect. Because many legal issues, especially certain constitutional issues, involve moral as well as legal questions, and even though these questions should be kept as separate as is reasonably possible, I don't see how judges own moral predispositions can be kept out of certain kinds of legal decisions - the moral predispositions can be minimized, and I believe that they should be reined- in, but they cannot be entirely excluded. In fact, I am skeptical of emphases on "neutral principles" in constitutional law because I think that they are often emphasized only to preserve past injustices. Being neutral is often just a way of leaving everything as it is - and if the way things are is terribly unjust then neutrality is a good means for keeping it that way. So, in the real world I am OK with a mix of reined-in pragmatism and some principled points of reference, even if that position is somewhat eclectic and may harbor some inconsistency. But, it doesn't take me to an originalism that eschews pragmatism and may invoke as points of reference some principles of people more than two hundred years ago who believed that women were not capable of being voting citizens, that slavery was tolerable if not advisable, and who believed it was consistent with democracy to give southern white men an extra two-thirds of a vote for the black slaves in their districts.

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