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Originalism: More than a Presumption

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.

In a world where individuals have very imperfect barometers of the good, it is better to rely on the meaning of a constitution created by consensus.

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.

Reader Discussion

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on August 20, 2020 at 09:34:50 am

"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."

This sounds good and reasonable on a first take, but in practice it would serve to foreshorten, to truncate, to destabilize and bias the general dialectic and discussion that would otherwise be maintained in an originalism tout court, a more robust and truer originalism, an originalism that does not lose faith in itself. A presumptive originalism could easily, for example, tempt a jurist to presumptively foreclose the dialectic, the discussion, at a juncture of convenience, for the purpose of coming to a predetermined end. Or likewise at the point of a vexing, challenging, seeming impasse which in the end would be no true or actual impasse at all but instead a moment of crisis and challenge and pressure wherein still greater intellectual and moral effort, as disciplined by a more complete and more demanding originalism, would yield a more refined justice and sense thereof.

Vermeule has nothing but good intentions, but his presumptive originalism ends up being a lax, an atrophied and weak-kneed kind, a far less disciplined and demanding kind and in the end, given the devices and contrivances we sorry mortals are capable of, are prone to, no originalism at all or only of a sporadic, uneven kind. Justice itself would suffer, as would consensus building - in favor of factional and individuals' usurpations.

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Michael Bond
on August 20, 2020 at 11:07:17 am

“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.”

Our Founding Fathers recognized that God, The Most Holy And Undivided Blessed Trinity, (See Treaty Of Paris that ended the Revolutionary War), Is The Author Of Love, Of Life, and Of Marriage, and thus our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness. “If originalism yields a very bad result as assessed by political morality”, and thus does not serve for The Common Good, as defined by Christ, The Word Of God Made Flesh, then it can only be due to a denial of both The Spirit Of Divine Law and the spirit of our Constitution, which, in serving to secure and protect our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, which can only be endowed to us from The True God, can only serve for The Common Good.

If we deny that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Our Unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, and render onto Caesar, or ourselves, what belongs to God, then anything can become permissible, including the destruction of the life of a beloved son or daughter, residing in their mother’s womb.

“When God Is denied, human Dignity disappears.” - Pope Benedict XVI

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ND
on August 20, 2020 at 11:09:41 am

This essay evades Vermeule's point in arguing for presumptive originalism, which (after Aquinas) Vermeule states as follows:
"Because the lawmaker, too, is imperfect and subject to limited foresight, cases may arise that fall outside the central case of the lawmaker’s rational ordination." Vermeule say that Aquinas offers just such an example with his "open the gates for pursued citizens" exception to the rule of "close the gates when under siege." McGinnis offers Blackstone's exception to the ban on drawing blood in the streets as another such contingency, a case that would appear to fall "outside the central case of the lawmaker's rational ordination" when he made the law.

McGinnis says of both contingencies that they are problems of literalism not originalism and that the exceptions to the literal rule which Aquinas and Blackstone offer take context into account, as does originalism. In effect, McGinnis argues that in the two examples discussed Aquinas and Blackstone by taking context into account are applying originalism, without saying so.

Okay, so what? The question is whether originalism should be presumptive or absolute, not whether originalism takes context into account.
McGinnis' assertion that originalism must be absolute rather than presumptive is not supported by his explanation of the two examples, an explanation merely that both cases fall within the lawmaker's rational ordination. Whereas Vermeule cites Aquinas exception to the "keep the gates closed" rule as a situation that falls outside the lawmaker's ordination, McGinnis says it falls within the lawmaker's ordination IF one consider context.

So two scholars disagree as to whether Aquinas' case falls within the lawmaker's ordination. McGinnis says it does, while Vermeule says it does not. Who is correct is immaterial to the matter of whether originalism should be presumptive (and inapplicable to cases outside the lawmaker's ordination) or absolute (and applicable even to cases outside the lawmaker's ordination.) The two scholars should argue from the premise of a case that both agree falls "outside the central case of the lawmaker’s rational ordination" when the law was made.

I am exoteric about such things and, not being paid to read and write about them, I must leave any serious discussion of originalism to its coterie of academic esoterics. But personally, as a concerned citizen who knows well what the Supreme Court has done (it would seem systematically) to wreck the country, I would much rather read a common sense essay about whether, after Bostock, "we are all living originalists now."

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paladin
on August 20, 2020 at 12:43:22 pm

Nothing esoteric about Bostock, it all too simply represented a usurpation, should have been "remanded" to the legislatures or the amendment process - and the consensus building that would have reflected. The idea that we are all originalists now is an overplayed bit of triumphalism from one faction and spoken with chagrin by another (and the correct) faction. Bostock was a usurpation by Gorsuch. In Vermeule vs McGinnis terms, Bostock can readily be interpreted as an instance of Vermeule's presumptive kind being applied - rather than a fuller and more faithful kind - for the purpose of rationalizing the individual (Gorsuch and Roberts) and factional usurpation that followed. We are not all originalists now, not remotely so; though Vermeule's conception could lead to making it so.

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Michael Bond
on August 20, 2020 at 11:39:44 am

DIdn't Madison say that If men were angels, we wouldn't need governments? Here Vermeule suggests we listen to Aquinas. Perhaps. And if all judges were Saints, we wouldn't need constitutions. McGinnis makes a good argument that even where the apparent 'Original' yields a bad result, it is usually better to let the political process of the non-angelic government make the corrections, rather than to hope for saintly interventions. At minimum, a strongly presumptive originalism.

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cmcc_aus
on August 20, 2020 at 13:12:51 pm

" And if all judges were Saints..."
Yes, Sir. However, I have it on good authority that these elevated Judges are indeed Holy Men being similarly garbed as Jesuits and employing that special form of reasoning and logic peculiar to that sainted order, the Jesuit priesthood.
Following "gorsuchization", it would appear that Jurists, even *originalists" are determined, if not compelled, to deploy their considerable powers of "reason" to assure that their theory of law / interpretation assures that "one size fits all", notwithstanding the inexhaustible permutations of human interaction.

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gabe
on August 20, 2020 at 14:26:11 pm

It's time for an edited collection.

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Kevin Gutzman
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