The Ethical Mandate for Originalism

In a 2013 article in Fordham Law Review, political scientist Keith Whittington (also an occasional contributor to L&L) identifies four common justifications for legal originalism. The first three he waves away, and correctly, in my view. Yet he does not dismiss the fourth justification. I agree with that position as well, although I would pitch the argument in a broader context than Whittington does in the article.

The three justifications Whittington rightly dismisses: 1) originalism as the “interpretive intention” of the founders (“irrelevant” to modern originalists Whittington writes); 2) judicial restraint (“The goal of constitutional interpretation is not to restrict the text to the most manageable, easily applied, or majority-favoring rules”); and 3) originalist methodology more probably generates preferred political or policy outcomes (a criterion inconsistent with originalist interpretation if there exists a demonstrably “better” policy or political outcome than what the text requires).

Whittington finally identifies “process-based considerations” as a stronger basis for originalism. He writes:

Finally, originalism has been justified by process-based considerations. Under this approach, pursuing the original meaning of the Constitution Is justified by the special status of the authorized lawmakers who established the fundamental rules to govern the polity. Only those lawmakers were democratically authorized to create fundamental law, and the goal of constitutional interpretation therefore should be to uncover the content of the rules laid down by those lawmakers and faithfully apply them.

I don’t disagree with this last justification, but I think it represents only a special case of a more-general argument. To wit, I would argue that there is an ethical mandate for originalism in that adherents of the practice simply aim to read honestly. Originalism follows from common sense in that it proposes that we read legal texts as we read other everyday texts.

Whittington appeals in passing to the ethical mandate for originalism at different points in the article. One sees the justification in his adjectives. He writes of originalism as “the faithful interpretation and application of constitutional rules,” its goal being “to faithfully reproduce what the constitutional text requires,” and to “faithfully adhering to constitutional requirements,” etc. Similarly, he writes of originalism having “recently emphasized the value of fidelity to the constitutional text as its driving principle,” having “a primary commitment to constitutional fidelity,” that “the primary virtue now claimed by originalism is one of constitutional fidelity,” etc.

“Faithful” interpretation of a text, however, is not limited to constitutional or statutory interpretation. It’s the goal we have normally when seeking to understand any text; it is the generic goal we have when we read. We seek honestly to understand what the author(s) wrote. This is true whether what we read is a legal text, a math textbook, a Shakespeare sonnet, or a letter from Aunt Jenny. That this is the goal does not entail the project is always easy, that each text has only one clear or determinate meaning, or that people can’t honestly disagree over what a text means. (“What is Aunt Jenny writing about here?”)

This justification for originalism highlights the self-refuting character of non-originalist interpretation: Non-originalist authors write expecting, or at least desiring, that their arguments be read and construed honestly. The “originalist” position, such as it is, is not that legal texts need to be approached as special or distinctive, but that legal texts be approached in pretty much the same way as we read other texts. (This does not entail that we ignore the possibility of specialized language or terms of art, as I argue below.)

I call this an “ethical” mandate for originalism because it aims the reader merely to seek an honest reading of legal texts. This title can mislead, however, if we take it to suggest a virtue unique to judges reading legal texts. That point is the opposite. “Originalism” means that we read legal texts in the same way that we read other texts.

The companion to originalism as ethical reading, then is that originalist legal methodology is no more than a special case of the common sense observation that we read everyday texts with a desire to understand, as best we can, what the author(s) wrote. This, I think, is the real power behind originalist methodology. If we ask the person reading the letter from Aunt Jenny if he or she as a reader is attempting to understand what Aunt Jenny wrote, the answer is obvious. Legal originalism stands for nothing more than the same, obvious answer.

This justification does not eschew the need for or use of specialized language or terms of art, whether for legal texts or for other texts. Indeed, whether we read a math textbook, or an instruction manual for a piece of technical equipment, our goal is still the same: to understand what is written. This does not necessarily provide technical legal language a free interpretive pass, however, especially when reading a Constitution (as distinct, say, from a statute or administrative rule). But that discussion for another time.

Fidelity to the text isn’t simply what originalism seeks to provide to a legal text, it is the raison d’être for originalism itself. It’s the way normal people read texts, whether everyday texts or technical texts. It’s the way writers normally want to be construed, whether good writers or poor ones, and whether legal originalists or non-originalists. The power of originalism is that, in applying it, we approach legal texts the way we approach all the other texts in our lives: When reading, to read honestly; when writing, to be read honestly.

Reader Discussion

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on January 17, 2018 at 06:32:50 am

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The Ethical Mandate for Originalism | Top 100 Blog Review
on January 17, 2018 at 16:36:39 pm

But ethical reading is a means to the end of ethical living. If I believe that the death penalty is unethical, reading the eighth amendment to allow it is not ethical reading, since it leads to unethical governance.

Ethical reading means giving the writer the benefit of the doubt that they share my ethics (that they are ethical). If I believe something is unethical, my first duty is to read another's work with the presumption that they share my ethics ("the koran supports the golden rule")---unless that is absolutely barred beyond all reasonable doubt.

So for instance, if I believe that civilian gun ownership is unethical, I will read the preamble to the second amendment (a well regulated militia) to limit gun ownership to the national guard. You can tell me that statutory interpretation of preambles doesn't work that way--or at least hasn't since the late 1790s--but if I have to pick between a law allowing what I think is unethical, or using an unusual and obsolete form of statutory interpretation that I wouldn't ever use in any other circumstance; I will pick what leads to the outcome I think is ethical rather than the means (statutory interpretation) I think is ethical (would use in every other circumstance).

If the over-arching purpose of the bill of rights is to create legitimate government, then I am not going to read any section of the bill of rights in a way that would create an illegitimate government--even if that means I have to read each section in a completely different way that is diametrically opposed to the way I read the other sections.

You see the bill of rights as ten separate provisions each with their own purpose based on their text. I see the bill of rights as one single provision "the due process clause of the fourteenth amendment" who's purpose is to create legitimate and fair government for all.

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Breyer Patch
on January 17, 2018 at 23:11:14 pm

The multitude of posts on this blog that address the subject of originalism have never held a great deal of interest for me, but not because the discussions are boring or unimportant or too abstract. The issue has seemed to me to be that originalism, like most isms, is defined as much by its unproven assumptions as by its methods. The situation seems analogous to Aristotle's discussion of the four types of cause. Your conclusions depend heavily on what you assume the question refers to.

In the case of say, the Constitution, we can look to various stages of a provision's development. Firstly, we can look at the motivation behind addressing a particular subject in written law; what is the evil to be avoided or the good to be advanced? Secondly, we can look to the syntax and phrasing of a particular provision to extract the means by which the drafters aim to suppress the evil or bring about the good. What is the mechanism or process created by the word choice and phrasing; i.e. what is the meaning with respect to relationships and institutions? Finally, we can look at the natural ends to be expected of particular language to discern the intent.

As a brief example, let us say that some legislators are concerned with piracy and propose two alternative statutes:

1.) To provide for six armed vessels to escort merchant shipping; or

2.) To provide for four armed vessels to hunt down and destroy pirate ships.

In both cases the motivation is to deal with the threat of piracy. The meaning of the words used provides for different characteristics of the authorized ships, and the intent in the former case is to safely escort commercial shipping , and to destroy pirates in the latter. "Why did the founders do this?" is distinct from "what did the founders mean by this?" which is distinct from "what was the purpose, or desired ends of this?"

Now there are two difficulties as I see them. One is, if we inquire into motivations (e.g., "a well-regulated militia...") we can either proceed deductively, assuming that the motivation is general (for example the general notion of "security of a free state,") or inductively, assuming that they are specific, for example referring only to arms, and not the other elements that are required by a functioning militia. If we begin by inquiring into the motivation, either inductively or deductively we may well end up with a different result than if we began by inquiring into the meaning (e.g., what are "arms?") or the intent ("the right...shall not be infringed...")

The second difficulty is demonstrated by Professor Rogers statement

If we ask the person reading the letter from Aunt Jenny if he or she as a reader is attempting to understand what Aunt Jenny wrote, the answer is obvious. Legal originalism stands for nothing more than the same, obvious answer.

I don't think this concept applies well to legal ordinances and constitutions, for the simple fact that these are almost always written by committees. Even though the various members may arrive at an agreed upon verbiage, what each member thinks that verbiage means, or what their interests and expectations are regarding the purpose and effect of such does not have to be, and in fact is unlikely to be, uniform. It is often said by critics of the New Testament that passages were interpolated and interpreted across various translations to serve some interest of the translator; in other words, various discrepancies in the Gospels are attributed to the notion that they were in fact written by committees over time (or, in the case of John, by a "school"). The only difference in the case of legislation and constitutions is that the various drafters are often in the same room. It may not be possible to discern what the drafters "meant" because the fact that there was more than one of them raises the possibility that each one meant something different.

But, as I said, I don't think this is very interesting.

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