Originalism: Surrebutter

Roger Pilon defends originalism by arguing that the alternative is unfettered law-making from the bench. Either the Founders’ Constitution or mere anarchy. But those are not the choices, and Roger wins no arguments when he attacks straw men.

Rather, the choice is between sola scriptura and the adherence to a constitution as interpreted by jurists over the centuries. Such interpretations might be colored by an understanding of the principles of good government not explicitly derived from the words of the Constitution or the beliefs of the Framers. If a court so rules, are its decisions worthy of respect as proper precedents? I say yes. Roger says no.

I gave one example of this in the Privy Council’s Parsons decision. While there was some ambiguity in the 1867 British North American Act, the Court’s ruling revealed a distinct preference for Canadian federalism. The decision was inconsistent with the BNA Act’s “structure and background theory,” Roger’s criterion for originalism, yet it remains a precedent still adhered to by Canadian courts. (Counsel for the provinces included one Judah P. Benjamin, of whom it is said that he proposed a states’ rights doctrine in two countries, failed in the first and succeeded in the second.)

But that’s another country, and Roger is an American Exceptionalist. “An additional reason to be an originalist in America,” he says“is because the Framers, especially the Reconstruction Framers, got it basically right.” The Reconstruction Amendments did indeed correct a great injustice, but it was one found in the Framers’ constitution. You might not like the Dred Scott decision, but Taney thought he was being an originalist and he brought a majority of the Court along with him. If you pay attention to the beliefs of the Framers, moreover, you would have to concede that southern states had the right of secession in 1860-61. 

My broader point was that applying originalism in one country but not another is a non-starter, and so is applying originalism at one time but not another. It’s a canon of interpretation, like the eiusdem generis principle, which as an abstract rule of reason does not permit one to pick and choose where and when to apply it. Let politicians do that. Not lawyers.

One thing the American originalist might profitably learn from the constitutions of other countries is the need to pay attention to the beliefs of the Framers, and not simply the words of the document. That’s what’s necessary when seeking to understand the BNA Act. The words of the text describe an absolute monarchy; the intent was Walter Bagehot’s “efficient secret” of a parliamentary democracy. Would the American originalist want Queen Elizabeth to rule Canada the way Charles I ruled Britain?

The American originalist is resolutely uninterested in other countries, however, even those that are just as free and committed to the rule of law. That’s a weakness in their case. It opens them up to the charge that they’re simply right-wingers.

Not that there’s anything wrong with that.

Reader Discussion

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on May 07, 2020 at 08:26:51 am

At the risk of belaboring the obvious, I’m afraid that Frank misreads my argument as posing a false alternative: either originalism or “unfettered law-making from the bench.” Right there is the straw man, as Frank himself shows. Far from defending “wooden originalism” (“sola scriptura”), I wrote that “an originalist judge must often go beyond the text to give it meaning,” but, as Frank quotes me, his decision must be consistent with the constitution’s “structure and background theory.” By contrast, Frank would allow decisions contrary to the text. Res ipsa loquitur.

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Roger Pilon
on May 07, 2020 at 11:31:18 am

Well, I see we have another "Frank" discussion here. I must admit that this Frankess has finally persuaded me of this fact.
Dred Scott was an originalist decision as Buckley avers. It follows that Roe v Wade must also have been an originalist decision as both appear to pivot around that well lubricated propositional fulcrum that certain classes of living creatures are NOT "Persons."
In Dred Scott, we find that Blacks are not persons; in roe we find that unborn human children are not Persons.
The logical consistency is amazing and there for all to see if only they are able to construe, as are the Jurists, the hidden meanings resident in the (also) hidden intent of the drafters of COTUS.

Interesting also is this: Both Taney and our Canadian friend to the North exercised their considerable "constructive" capacities in wresting this esoteric meaning from the text and all with a purpose of correcting or resolving a (potential) conflict of governance. Taney sought to forestall the upcoming conflict over slavery by providing under *constitutional* cover a rationale for the continuance of slavery and the hoped for end to partisan division within the Union by simply declaring the issue moot and to de considered no more judicially determinable than a case at common law over the loss of some cattle. If not a person, then "it" must be property and thus no concern of the federal Government. He divined a "solution"
In the North, those jurists also divined a solution more in keeping with their own preferences. Contrary to text, We (Canadians) actually created a Parliamentary Democracy.

But both demonstrate that Judges may be, and quite often are as PURPOSIVE as is the Legislative.

And Frankly speaking, we are here advised that we ought to accept these purposive propositions as the revised constitution - stare decisis as the new Article V of the constitution. There is considerably more import in Buckley's claim here than a simple matter of 'reliance interests." It is a call for ever more reckless Judicial freewheeling to implement their purposes.

This too must be originalism. After all, does not COTUS "inform" us that the Judicial is Supreme and is the Last Word on constitutional questions.

Oops, wait a minute! I thought Buckley preferred that system of governance that mandated Parliamentary Supremacy. Hmmmm!

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