Markovits alternates between acknowledging the opportunity for advancement for all and claiming that the system enables only “the rich” to win.
For what is the point of drawing up dumb, silent statements of laws, if anybody may attach a new meaning to the words to suit his own taste, find some remote interpretation, and twist the words to fit the situation and his own opinion? John Locke
For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning.
I think the question is more complicated—and more fraught. Ironically, a focus on original meaning has led originalism to lose touch with its own goals. I will try in this brief essay to explain how this is so. And I will suggest an alternative that might help originalism get back on track. Until someone comes up with a better name, I will tentatively call this alternative “decisional originalism.”
What Originalism Opposes
A helpful way to understand originalism is to consider how it arose. Originalism as a movement began in the 1970s and gained momentum in the 1980s, in critical reaction to Supreme Court decisions like Roe v. Wade. But originalists didn’t simply dislike the substantive results in these cases; they thought such decisions reflected a mistaken and even illegitimate use of the Constitution. More specifically, the Court was interpreting the Constitution’s provisions to do things that the provisions’ enactors had never intended or contemplated. And this sort of non-originalist interpretation was objectionable for two main reasons.
The most obvious had to do with authority. Our constitutional system attributes lawmaking authority to “We the People” and to our elected representatives. If those authorized agents make decisions and express these decisions in words, but other agents—judges—interpret the words to mean, require, or forbid things that those with authority did not intend or contemplate, then it seems that the constitutional assignment of authority is defeated: the real lawmaking power lies with the unelected judges, not with the people and their elected representatives. So non-originalist constitutional decisions and doctrines reflect an impermissible assumption of authority—a usurpation—by judges.
Given our professedly democratic system, we can say, and originalists often do say, that non-originalist constitutional law is undemocratic. But the same basic objection could be made in any kind of political system—a monarchical system, for example. Suppose we think political authority rests with the king, but judges interpret the king’s decrees to mean things the king never intended. There is once again a problem of authority—of the law in reality being made by people who were not and are not authorized to make it.
Bracket for a moment, though, the problem of authority. A second and somewhat more subtle objection to the Court’s adventurous interpretations of the Constitution has to do with rationality. Non-originalist interpreters, whether judicial or academic, typically deny that they are simply legislating and then projecting their legislative decisions onto the Constitution. Rather, they claim to be constrained by, among other things, the Founding document, even if not by the original understanding of that document. But if we take these non-originalists at their word, and if we value rational decision-making, this might seem to be the worst imaginable way of resolving major controversies over contested issues like abortion, same-sex marriage, or presidential powers.
There is at least something to be said, that is, for respecting the decisions made by constitutional framers (and for delegating what those framers left unresolved to a legislative process in which elected officials address the issues on their merits and give what seems to them the most sensible answer). Conversely, there may be something to be said for letting judges address the issues on the merits and give what seems to them the fairest or most sensible answers. Either way, decisions are at least being made by mindful agents– whether framers, legislators, or judges– who are thinking about the issues and striving to figure out the best answers.
By contrast, if we favor rational decision-making, then there is very little to be said for resolving difficult and deeply contested issues by assigning judges not to do what they think best, or what they believe the enactors thought best, but rather to do what they think the words would entail today. Now outcomes reflect not what any mindful agents have decided is the best answer to the question, but rather what “the words”—words deliberately detached from mindful decisions—are thought to require.
The only reason we do not ridicule this approach, which aspires to sever the link between law and mind , is that we do not believe the non-originalist judges are really doing what they say they are doing. Probably they are just making their own best judgments on the substantive issues and then pretending to pull those judgments out of “the Constitution” as a magician pulls out of the hat the same rabbit he himself put into it. So our criticisms emphasize not “mindlessness” but rather deceitfulness or hypocrisy (and also, primarily, lack of authority). But if constitutional interpretation actually were what its defenders say it is, the ultimate substantive decisions would be quite literally mindless.3
Suppose you are persuaded by the authority objection to non-originalist constitutional law, or by the rationality objection to it, or by both. We can then describe what you oppose. Along with Locke in my epigraph, you oppose an approach in which there is a gap separating what the enactors of a constitutional provision had in mind or were trying to do, from what the provision is interpreted to require today. It is that gap that gives rise to the authority and rationality objections.
But if this is what you oppose, what should you favor? What is the correct criterion for constitutional decision-making? What criterion will serve to close the authority and rationality gap?
“Original meaning” might seem to be the answer. And maybe, given a different history of development, it could have been. If interpreters are guided by original meaning, they will be able to avoid provoking the authority and rationality objections. Won’t they?
Alas, with the benefit of hindsight, we must admit that the answer to that question is “no.” Even a devout attachment to original meaning as the criterion of interpretation does not deflect the crucial objections.
Originalism Subverting Originalism
Two all-too-familiar and related developments have prevented “original meaning” from closing the gap that generated the authority and rationality objections. One is the frequent interpretation of constitutional provisions to mean (or to embody, . . . or to incorporate) some kind of “principle.” The other is the standard invocation of a distinction between “meaning” and “expected applications.”
These two techniques typically operate in tandem. We declare that the Eighth Amendment, say, embodies a principle of humane punishment. Or that the equal protection clause constitutionalizes a principle of equal regard. If we are originalists (or if we are speaking to them), we will defend these claims on originalist grounds. We will say that this principle is what the Framers intended, or what the original public meaning amounted to, or something of that sort.
From there we go on to figure out what the principle entails for some current issue—capital punishment for minors, maybe, or same-sex marriage. We conclude, perhaps, that the execution of minors or the limitation of marriage to opposite-sex couples is unconstitutional because contrary to the principle we previously extracted from the original meaning. Then, confronted with the objection that the enactors never thought they were prohibiting such practices—that they would have been shocked to learn that the provision they enacted would have any such consequences—we patiently explain that what governs is not the enactors’ expected applications, but rather the original meaning (of which the expected applications are merely imperfect, readily rebuttable “evidence”).
To be sure, both moves—the interpretation of constitutional provisions to embody some grand “principle,” and the separation of “meaning” from “expected applications”—are contestable. Elsewhere I have tried to resist them. Still, both moves are perfectly familiar, and both are defended by sophisticated theorists, including some whose originalist credentials are impeccable. So at least for the moment, I want to concede that these moves may be defensible as an implementation of original meaning. And it follows, I think, at least as a logical possibility, that the original meaning of a provision like the Eighth Amendment or the equal protection clause might be articulated in terms of some “principle,” and that our best understanding of that principle might indicate that it has implications contrary to what the enactors understood and expected. If you want illustrations, just read a page or two of Jack Balkin. Or Michael Perry. Or . . . . Robert Bork on Brown v. Board?
On these (contestable) assumptions, it is entirely possible that a judicial decision mandating something the enactors wouldn’t have approved—would perhaps have deplored—might persuasively be justified as an application of the “original meaning.” The enactors of the Fourteenth Amendment might have been incredulous, or even appalled, at the suggestion, say, that they were somehow invalidating traditional marriage laws. Too bad for them, if it turns out that this is simply an implication of the “meaning”—the “original meaning”—of their amendment.
Let us concede, for argument’s sake, that all of these moves can be persuasively and legitimately made in the name of “original meaning.” Notice, though, that the objections that gave rise to originalism now return as objections against originalism, or at least against this sort of originalism. Indeed, there turn out to be parallels between non-originalism and originalism. Non-originalists all along maintained that judges are constrained by the words of the Constitution– the original words—but may depart from the enactors’ understandings of what those words meant. Originalists now insist that judges are constrained by the meanings of the words, but may depart from the enactors’ understanding of what those meanings would entail or require.
How much practical difference is there, honestly, between these accounts?
An example may be helpful. Take the current controversy over same-sex marriage. Suppose, as I think we must, that the enactors of the equal protection clause never imagined that it would work to invalidate traditional marriage laws, and that in the moralistic and “Christian nation” ethos of the time they emphatically would not have favored any such outcome. Stipulate as well, for purposes of argument anyway, that the words of that clause, whether taken in their original or their contemporary meaning, embody a principle of equal regard, or something of that sort, that is inconsistent with limiting marriage to opposite-sex couples. The enactors had no idea that the clause had this meaning, perhaps; or, if you prefer, they knew that it had this meaning but never imagined that the meaning would have any such implication. And yet it does: In this respect, the enactors’ “expectations” were badly mistaken.
It seems fair on these assumptions to predict (or to predict backward, so to speak) that if the enactors had foreseen this interpretation, they would have reworded the clause to avoid this lamentable (to them) result. Failing that, it is possible that they might have declined to enact the provision at all. But they didn’t foresee these developments, and so in their innocence they gave us . . . words . . . with meanings . . . with implications . . . that they would have deplored.
I have already conceded that on familiar (though contestable) assumptions, it may be plausible in this scenario to say that a judicial decree ordering what the enactors never contemplated and would not have wanted nonetheless follows from the meaning—even the “original meaning”—of their enactment. Would it be plausible, however, to say that the decree implements the enactors’ decision?
You can say if you like that the judicial decree is still a product—albeit an unintended, unwanted one—of the enactors’ exercise of authority. And yet it is a very odd sort of “authority” that authorizes later agents to use the putative authority’s decisions to justify measures that the authority never foresaw, never intended, and would not have wanted. Nor does such a use of “authority” amount to the deployment of human rationality. On the contrary, the judicial decree is if anything a product of the enactors’ ignorance, not of their mindful deliberation. If they had been more prescient, this current decree would have been anticipated and avoided.
In sum, if non-originalist constitutional law is objectionable for its undermining of authority and rationality, originalist constitutional law seems objectionable for exactly the same reasons.
A Better Criterion: The Original Decision
So, is there any way of avoiding this unhappy conclusion? If original meaning does not avoid the authority and rationality objections that gave rise to originalism, is there some criterion that would better serve the originalists’ purposes?
Maybe. Or at least the foregoing discussion has already suggested a possibility. Constitutional interpretation might attempt to ascertain and follow the original constitutional decision. After all, authority exerts itself, and rationality manifests itself, in decisions. To be sure, once made, those decisions are expressed in words—words that have meanings. We necessarily use the words (among other things, such as the historical context) to try to understand and reconstruct the decisions. Still, if our goal is to respect the constitutional assignment of authority and to facilitate rational decision-making, then we should not care about either the words or their meanings for their own sakes. We pay attention to them, rather, for the purpose of ascertaining and following the enactors’ decisions.
This distinction between meanings and decisions is subtle, but it is not wholly unfamiliar. Back when lawyers and scholars took common law reasoning more seriously than perhaps they do now, even a legal realist like Herman Oliphant could intelligibly contend that what binds in a legal precedent is what the court decided, not what the court said. Stare decisis, not stare dictis. My suggestion is that a similar distinction might be employed in the context of constitutional interpretation. In common law reasoning, to be sure, the distinction may seem more manifest because there is no canonical statement of the decision, anyway. With constitutional provisions (and statutes) there is a canonical wording; but that fact, I think, need not dissolve the distinction between decision, on the one hand, and textual meaning, on the other.
Just how an approach focusing on the original decision would differ from one focusing on original meaning is a complicated question, about which I cannot say much in a short essay. (And frankly, I don’t yet have a fully worked out position on the matter.) The decisional approach could benefit, I suspect, from the kind of theoretical sophistication that has been devoted to original meaning.
For now, though, two observations may be suggestive.
There should be no great difficulty in concluding that the Fourth Amendment “search and seizure” provision applies to wiretaps. That sort of invasion of privacy might well be seen as covered by the enactors’ decision even though telephones did not exist in 1789. We might imagine a conversation in which we explain to the Framers: “In the future, it will be possible for officials to invade people’s privacy electronically without physically entering their dwellings. Would your decision apply to that sort of thing?” And we might plausibly suppose that they would reply, “Of course.”
Suppose, however, that someone proposes that a constitutional provision be interpreted to do something we are reasonably confident the enactors did not contemplate and very likely would not have desired. Someone proposes, for example, that the due process clause be used to invalidate restrictions on abortion. Or that the equal protection clause be used to invalidate traditional marriage laws. And we are confident, perhaps, that the enactors of those provisions would have been startled to learn of these proposals, and would have protested, “Are you serious? Our decision had nothing to do with that sort of thing.” If such “interpretations” had been foreseen, the provisions almost surely would have been reworded to avoid the unwanted results, or would not have been enacted at all.
These are counterfactual questions, obviously, and sometimes people will disagree about the answers. But we do ask such questions, and sometimes we feel reasonably confident about the answers. Despite this confidence, as we have already seen, a focus on original meaning in this situation leaves the enactors’ expectations as an easily avoidable obstacle. “Sure,” we say, “the Framers would have been surprised or maybe even appalled, but their ‘expected applications’ aren’t what matters.” Conversely, if the controlling criterion were the original decision, I suspect it would be more difficult to toss aside the enactors’ conscious, mindful understanding of and expectations about what they were actually deciding. (Though, alas, nothing is impossible for a sufficiently motivated judge or advocate.)
What Authority Performs, What Rationality Devotes Itself To
A proposal to look to the “original decisions” over the “original meaning” as the controlling criterion is in some respects inconvenient. A “decision” may seem a more amorphous thing than either the words (which are right there on the page in front of us) or their meanings. Decisions would require interpretation, and perhaps reconstruction.
Nonetheless, this is the approach implied by the authority and rationality objections. As a practical matter, political authority is or should be the authority to make decisions. And rationality is similarly exercised in the making of decisions. The making of decisions is what lawmakers reflect on and struggle over; it is what authority performs, and what rationality devotes itself to. And it is what constitutional interpretation and adjudication should respect. A focus on decisions might thus allow originalists to return to their purpose of resisting judicial decrees that usurp authority and undermine rationality in our constitutional system.
 The point is developed in Steven D. Smith, “Law Without Mind,” 88 Mich. L. Rev. 104 (1989).
 For example, Steven D. Smith, “That Old-Time Originalism,” in The Challenge of Originalism: Theories of Constitutional Interpretation, edited by Grant Huscroft and Bradley W. Miller (New York: Cambridge University Press, 2011).
 Herman Oliphant, “A Return to Stare Decisis,” 14 Amer. Bar Assoc. J. 71 (1928).