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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.

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