Another Argument for Originalism

In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law).

Here I want to explore a type of theory that intersects between the second and third categories: a theory that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law.

If one looks back at some of the old originalist theories, I think it is possible to read them as adopting an idealized conception of the law.  The law is not what the rule of recognition requires, as in the positivist theory.  Nor is the law what would lead to the best results in general, as some versions of the normative theory hold.  Instead, the law is determined through an idealized conception of the law.

Consider this statement by Robert Bork in The Tempting of America:

“When we speak of ‘law,’ we ordinarily refer to a rule that we have no right to change except through prescribed procedures. . . . Statutes, we agree, may be changed by amendment or repeal.  The Constitution may be changed by amendment pursuant to the procedures set out in article V.  It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges.  Though  that has been done often enough, it is in no sense proper.”

How are we to understand Bork’s argument here?  On the one hand, one might see it as a claim about what the law is in a positivist sense.  The rule of recognition allows changes in the law only through these prescribed procedures.

But this argument is a bit peculiar.  What about changes in the common law?  This occurs through judges.  Perhaps Bork would say that judges are allowed to change the common law – this is a prescribed procedure.  But if judges can change the common law, then why can’t they change constitutional and statutory law?  Presumably, Bork would say that written law can only be changed by the same lawgiver who enacted them.  But why?  Who says so?

Bork does not explain his argument, but one might develop it.  Bork might argue that law ought to be determined in this way – as based on the enacted written text – because that is the best understanding of law.  In other words, this is how law should function.  It is an idealized conception – a kind of natural law, if you will – but one that looks to the lawgiver as the source of norms.  While no one can know for sure, this may have been Bork’s underlying view.  And I believe it is a premise of many people’s intuitive originalist beliefs.

Reader Discussion

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on November 19, 2014 at 18:57:23 pm

I guess I don't buy the claim that the Constitution is law, at least not in a strict sense. It is not a rigid set of rules so much as it is a gentlemen's agreement, one that can be modified at any time by the gentlemen who made it. The agreement can be modified by a formal rewriting of the rules, or it can be and often is modified by a common neglect of the terms of the agreement. Besides the gentlemen who originally made and now own the agreement, the Constitution, no other parties are involved who are empowered to guarantee the performance of the terms of the writing.

The Constitution is enforced ultimately by the will of the democracy. If the democracy decides not to support some part of the Constitution, and the democracy's government decides not to follow that part of the Constitution, the Constitution will not be followed. There is no strict enforcement of the Constitution as written. There is no outside party responsible for doing that. The Constitution is not law in that sense. It is not even a contract because the force of a contract requires the use of an empowered arbitrator in case of disagreements or failures in performance, and the American form of government does not provide for an arbitrator. If the Court does not support some part of the Constitution, and the Executive and Legislature do not support the performance, and the democracy does not support the performance, the Constitution can be changed without even one drop of ink being added to it, and we all know it too frequently is.

The existing process of loose interpretation of the Constitution is simply a reflection or accommodation of the reality that the Constitution is not law in that it is not enforced by an outside party. Without enforcement, stricter theories such as originalism are and will continue to be unpragmatic intellectual curiosities.

But then again, if the gentlemen of the democracy were to agree to a stricter enforcement of the Constitution to better protect their freedom, a corresponding agreement for the method of more strict interpretation of the Constitution must be made along with it. Yes? Then we would find a great value in having a solid groundwork laid out before the terms of the agreement are discussed. Vagueness must be eliminated to as great a degree as possible so the threats of boogie men in the shadows do not frighten the gentlemen democrats away from the negotiating table, and issues must be brought to the surface to minimize unintended consequences.

The two changes must go hand-in-hand. You cannot have one change without the other. To have better law, you must also have more effective enforcement, otherwise the law becomes meaningless through neglect. To have better enforcement, you must have more effective law, otherwise the enforcement becomes oppressive from the vagueness and irrationality of its directives.

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Scott Amorian

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