Originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell.
Adrian Vermeule, constitutional originalism’s foremost opponent on the right, has again criticized the theory and its statutory kissing cousin, textualism. While he argues that positivism cannot provide a justification for originalism or textualism, he concedes that “substantive goods of political morality” might serve to provide textualism and originalism support. But, according to Vermeule, even such goods could justify only a “presumptive originalism.” Under presumptive originalism, interpreters should begin with a presumption of following the original meaning. But if originalism yields a very bad result as assessed by political morality, the original meaning of a provision should not be followed.
Vermeule’s concession may be larger than he realizes, because most modern theorists of originalism invoke substantive political goods to justify following original meaning. And once it is agreed that substantive goods can justify presumptive originalism, it should follow that they might justify originalism absolutely. Whether originalism should be followed presumptively or absolutely is a contingent question that depends on the nature of the goods that justify it and the capacity of other institutions—such as the amendment process—to realize substantive goods when an original interpretation does not capture them directly and immediately.
First, most defenders of originalism agree with Vermeule that originalism needs a justification outside the meaning of statutory or constitutional words, or even outside the practice of judges in following them: There must be some substantive political morality behind the choice to follow original meaning. Justice Antonin Scalia thought that originalism’s cardinal virtue was that it generated clear rules. Keith Whittington has argued that originalism respects the great political good of popular sovereignty. At this site, Ilan Wurman recently contended that “Originalism allows us to conserve [the] balance among the principles of our Founding: self-government, ordered liberty, and (at least since the ratification of the Fourteenth Amendment) equality under law.” Mike Rappaport and I have shown that originalism is justified by a procedural excellence: a constitution is likely to be good when made under the kind of consensus-making rules that characterize our own Constitution. No other structure is as likely to lead to good results.
While I am partial to our own theory as capturing the best justification for originalism, these overlapping goods, taken together, provide a very powerful justification of the kind that Vermeule demands. The consensus-making provisions contained popular sovereignty so that it would likely yield the best possible results. And, as befits a sound constitution-making process, these results generated political goods such as those praised by Ilan Wurman and Justice Scalia.
Vermeule nevertheless argues that originalism (and textualism) must be only presumptive. Part of his reason is the authority of Thomas Aquinas. (Kudos to Vermeule for bringing to bear that great philosopher and saint on questions of legal interpretation.) Aquinas argued that interpreters should not follow the meaning of legal texts to require actions that obviously run contrary to great social goods:
Wherefore if a case arise wherein the observance of that law would be hurtful to the general welfare, it should not be observed. For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, if it were to happen that the enemy are in pursuit [only] of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view.
But the “letter of the law,” as Aquinas describes it, is not textualism or originalism but literalism. The example of the gates parallels the famous example of the prohibition against “drawing blood in the streets.” Blackstone argues, along with many jurisprudes before him, that this prohibition should not be applied to a surgeon. His point is that a narrow literalism ignores the overall context of law. Thus, it is not necessary to elevate social goods over textual meaning in order to avoid the result against which Aquinas argued. Rather, one need only recognize that the context of the law is relevant in interpreting it. As Scott Soames has shown, much of what is asserted in law, as in ordinary communication, depends on presuppositions and contexts that a speaker or groups of speakers share with their listeners.
Indeed, as Rappaport and I have argued, the legal meaning of provisions reflects the application of all sorts of legal rules that were expected to be applied. Some of them, like the rule of lenity or absurdity rules, specifically avoid literalism to make a text more congruent with what was legally asserted and thus more congenial to social good. The application of such rules is part of the public meaning of a legal text, not a departure from it.
More generally, justifying originalism by reference to social goods does not require one to jettison originalism when certain social goods do not appear to be realized in a particular case. It depends on the nature of the goods. For instance, Rappaport and I have argued for originalism on the grounds that the consensus-making process of the original constitution and its amendments is better than judges updating texts according to their own notions of the social good in particular cases. Would presumptive originalism be better? That depends on how optimistic one is about the judiciary’s capacity to discern the genuine social good, as opposed to their own personal vision of the good. It also depends on the capacity of constitutional amendments to change provisions that undermine the social good.
In our view, presumptive originalism would be inferior to the genuine kind because the presumptive approach suffers from the same problems that afflict all judicial-updating strategies. First, a judiciary applying a presumptive approach does not have a strong capacity to discover what social goods should override the presumptive original meaning, because judges are an insulated group of elites—the very opposite of the social consensus that is needed to make a good constitution.
A presumptive approach would also undermine the constitutional amendment process. If this approach overturned only the worst provisions, it would tend to interfere with proposed constitutional amendments intended to address these issues. As a result, the presumptive approach would further dishabituate the public from using the amendment process and thus vitiate the rich, deliberative politics of constitutionalism this process generates. It would also deter people from passing constitutional amendments even written in clear language for fear that some judicially administered social-good test would distort their application.
Presumptive originalism would also prompt disagreement on the Court about which provisions justify updating. Although the standard would be more demanding than that used for most judicial updating today, justices would still disagree about which provisions meet this higher standard. If liberals were to conclude that a provision satisfied the more demanding standard, conservatives might disagree and accuse liberals of failing to follow that standard. Such disagreements could easily lead the justices to discard originalism as a whole. Given human passions and division about the nature of the social good, the slope between presumptive originalism and non-originalism is very slippery indeed. Following the interpretive rule of originalism stops the slide.
Vermeule concedes that his preference for common good constitutionalism over presumptive originalism is “one of contingent judgment rather than of principle” He believes that presumptive originalism “might have been correct, so to speak, although it turns out not to be.” Thus, for Vermeule the debate must be conducted based on considerations of our circumstances, including human nature. But the preference for presumptive originalism over originalism tout court is similarly based on an assessment of our human circumstances. In a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it.