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The Honesty of Originalism

The central case for legal originalism is commonsensical and compelling: Read legal texts as we read everything else—honestly. Think of it as an application of the Golden Rule: Read others as you would like to be read yourself, including legal texts. And if you don’t like what you read in a legal text when you’ve read it honestly, the solution is not then to read the text dishonestly, the solution is to advocate changing the legal text.

So, contra F.H. Buckley, it is not the case that “if originalism commends itself, then, it must be because the Framers’ Constitution is morally superior to that of today’s Constitution.” You don’t read the letter from Aunt Jenny honestly only if what she wrote is morally superior to anything else she might have written. You read it honestly and then disagree with her if you find what she’s written to be morally wanting. (We might even advocate to Aunt Jenny that she amend her letter: “That’s not true; you take that back!”)

And, contra Adrian Vermeule, reading texts honestly—including legal texts—is not a “political and rhetorical” strategy based on fleeting political “utility.” If one doesn’t believe that the current Constitution promotes society’s “common good” if read honestly, then propose a different constitution that would achieve the common good as one sees it, and we can debate the proposal. But don’t advocate reading the current Constitution dishonestly to achieve purposes any honest reader would admit the text doesn’t support.

Both ignore that the central attraction for originalism is a moral attraction—that it simply commends reading legal texts honestly.

The real problem for both left- and right-antioriginalists is that the U.S. Constitution is difficult to amend without a fair degree of consensus that it should be changed. So people who want to change the Constitution seek easier routes by which they might change the meaning of the Constitution without wasting their time advocating for a constitutional amendment.

I understand the allure of wanting to cut through the hassle and make the Constitution easier to change. Yet while it is difficult to amend the Constitution without a fair degree of consensus behind an amendment, I am unsure that that leads ineluctably to the normative conclusion that the Constitution is too difficult to amend relative to the optimum. Contrary to Buckley’s claim, a Constitution that includes the means of its own amendment—and which, in fact, has been amended on average more than once every ten years—does not partake of the “fatal conceit” that its original writers got it “exactly right.”

Nonetheless, I’m open to a discussion of the question of whether the framers made it too difficult to amend the Constitution. But the measure of “too difficult to amend” needs to be something other than a matter of whose ox is getting gored. For example, a more easily amended Constitution would almost certainly have an Equal Rights Amendment in it. But it would also almost certainly have a Balanced Budget Amendment, and perhaps amendments on school prayer, flag burning, and a narrower scope of criminal rights.

Today’s conservative antioriginalists think there is a shorter road to their political aspirations through judicial appointments than through constitutional amendment.

The constitutional amendment process imposes non-trivial transaction costs on purpose. So the temptation exists to take a quicker path and use majoritarian successes to appoint judges who will change the Constitution by misusing the judicial power to interpret legal texts, and passing off their personal political views as binding constitutional and statutory law.

There is a cost, however, in reading texts, particularly legal texts, with intentional dishonesty. Doing so debases the language, it debases our political and legal life, and no matter how well-intended, it debases the reader himself or herself. Passing off a convenient faux-interpretation with a wink and a smirk is a short-term remedy with a long-term cost to political culture. It is ultimately a broad form of political corruption. As Howard Gillman put it, “Non-originalism, or some notion of the ‘living Constitution,’ encourages judges to keep the Constitution relevant for contemporary concerns and purposes but runs the risk that this will lead them to enforce a version of the fundamental law that was never formally authorized by the people.”

To be sure, originalism itself shares much of the responsibility for being misunderstood. Its modern incarnation came as a political response to policies which judges who believed in “living Constitutionalism” read into the empty vessel they called the Constitution. In seeking to draw the sharpest distinction with these excesses, originalists gave the impression that “original meaning” was unique and determinate. Legal interpretation was presented as comprising little more than looking up the word in dispute in a legal dictionary from the appropriate time period. Deriving legal meaning was presented as little more than a technical exercise in linguistics.

As with any writing, however—Aunt Jenny’s letter, Shakespeare, instruction manuals, as well as legal texts—honest readers sometimes disagree. While critics often treat that as a unique problem for originalism, it’s not. That a legal text does not determinately mean one thing does not then entail that the legal text can mean anything. Yet the spectre of determinate meaning continues to haunt originalism, sometimes as much for its advocates as for its critics. Many originalists seemingly embraced originalism for the certainty they thought it promised, and do not like opening the door to any form of indeterminacy, even when the set of possible meanings is little more than a handful of entirely reasonable alternatives.

Originalists now frequently recognize that constitutions invite and require “construction” as well as interpretation. “Interpretation” means simply identifying and applying the meaning of the words while “construction” necessarily finds meaning from context, drawing conclusions beyond the explicit meaning of the separate words. But even here, the need to identify the purposes for a given writing—its telos—is often critical even to interpreting a text reasonably.

Some originalists object that recognition of the intrinsic fluidity of language simply throws the door wide open to the sort of legal indeterminacy that the liberals took advantage of during the era of living constitutionalism. But that’s not correct. To be sure, narrowing a range of possible meanings down to, say, a set of two or three reasonable possibilities does not identify a unique meaning. At the same time, the set of meanings is far less than infinite. I say that the glass is half full. And that’s better than the empty glass of living constitutionalism.

Today’s conservative antioriginalists, along with left-antioriginalists, oppose originalism because they want constitutional provisions to mean things that no reasonable understanding of the text will support. And like left-antioriginalists, they think there is a shorter road to their political aspirations through judicial appointments than through constitutional amendment. They are correct that it is a shorter path. It is also a dishonest path.

Reader Discussion

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on April 21, 2020 at 09:04:17 am

I disagree with this assertion: "To be sure, originalism itself shares much of the responsibility for being misunderstood... In seeking to draw the sharpest distinction..., originalists gave the impression that “original meaning” was unique and determinate. Legal interpretation was presented as comprising little more than looking up the word in dispute in a legal dictionary from the appropriate time period. Deriving legal meaning was presented as little more than a technical exercise in linguistics."

To the contrary, on the Left there has been no material misunderstanding. Advocates of "living constitutionalism" have always and from the beginning fully understood the threat posed to their hegemony by originalism rightly understood. The deployment of non-originalism or faux-originalism to counter originalism rightly understood is not the work of misunderstanding. It is rather the devil's work of the "legal imagination" meddling in in our constitutional jurisprudence. It is a revolutionary strategy to use the "legal imagination" so as to subvert the constitution and, thereby, to restrain the ''moral imagination" in our culture.

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Paladin
on April 21, 2020 at 10:04:45 am

Splendid essay! And this is excellent phrasing: "does not partake of the 'fatal conceit' that its original writers got it 'exactly right.'"

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Anthony
on April 21, 2020 at 13:45:17 pm

Eminently sensible.

"There is a cost, however, in reading texts, particularly legal texts, with intentional dishonesty. Doing so debases the language, it debases our political and legal life, and no matter how well-intended, it debases the reader himself or herself."

Indeed and alas. In an era when the Left and Dems resort to the most cynical and brutal, the most vicious and venomous, the most insidious and pernicious rhetorical broadsides and corrosives (and that does not exaggerate the situation in an era when it is commonplace to be confronted and assaulted with Alinskyite tactics, gaslighting perversions and highly sophisticated forms of disinformation in general (google "Paul Goble and Natalie Grant Wraga" to appreciate such), we don't need to add still other and similar types of hypocrisy, dishonesty and "language/meaning corrosives" to the cauldron they've concocted.

One aspect of such corrosives is they tempt one to counterbalance the debate with similar strategems. But that is to misconceive the debate and what needs to be won; it is to sucomb to another aspect that brew, it's utility as misdirection. It's a multi-headed artifice, a Janus and Medusa changeling.

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Michael Bond
on April 21, 2020 at 14:56:52 pm

I fully endorse Professor Roger’s desire for an honest reading of legal or any other texts. And I am glad he is “open to a discussion of the question of whether the framers made it too difficult to amend the Constitution”, because I believe amending the Constitution has become too difficult and we do need to address additional ways to amend it: carefully, responsibly, and deliberately.

Each of us has a preferred set of changes we would like to see, but one that the Founders did not include was a periodic mandatory convening of a convention of the states, solely to ensure festering social or other issues were being given a full opportunity to achieve a national and ratifiable consensus. I would suggest a mandatory COS be held every 50 or 60 years. Thus it would occur at least once in the lifetime of most longer lived citizens, but not so frequently as to be considered a solution for political passions rather than a serious move to rectify significant legal issues. Perhaps it would even be venerated as a “super” 4th of July. I also have some ideas about the process rules and criteria that should be put in place as part of calling a mandatory COS and defining a specific and discrete set of topics for its agenda, but I won’t belabor those details here.

For those of us who would like to revisit the 17th Amendment on direct election of senators, we can be pretty sure the current Senate will not entertain offering any amendment in that direction, and thus a path around their self-interest is still needed (and of course is available now on an ad hoc, but not mandatory, basis). Maybe we should not repeal that particular amendment, but as a non-lawyer I would like to hear arguments on both sides.

And as a non-religious conservative, I would still be willing to trade off an amendment permitting, but not mandating, school prayer, for a balanced budget amendment. Would I be willing to forego that balanced budget amendment in exchange for some language that clarified the right to bear arms explicitly meant for individual personal protection and for the individual citizenry to resist an evolving tyranny? Probably. Or perhaps in exchange for removing Roe vs. Wade as the current law of the land (at the federal level)? That would be a tougher choice, but the opportunity to fight for that choice would be made available at least once in my life with mandates to form a COS.

One point on Mr. Roger’s math. Yes, 27 amendments divided into 231 years is less than one every 10 years. But some amendments were made in “sets” and really represent a single “change event” in the mindset of the citizenry. Others might choose a different breakdown, but I would lump the 1st thought 10th as one change; the 13th, 14th, and 15th as another; and the 18th and 21st (creating and repealing Prohibition) as a 3rd set. This converts to maybe 16 real changes over 231 years, or one per 14 year interval. Not so frequent that concerns about amendment difficulty are not justified to merit further discussion.

I also just now realized that most of the more recent changes were really changing How the government was to be run or operated, not What legal position should be cemented in place at the national level. I gather that is the preferred situation for constitutional level legal documents: How, not What. One complaint that I have with Florida, where I live, is that special interests will push state level amendments to address What type issues when their preferred solution was not achieved via normal legislative action. They basically create referenda or initiatives via the amendment route. I wonder if this How vs. What feature is something that would merit wider presentation and discussion on Law and Liberty. Or have I perhaps missed essays addressing that topic?

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R2L
on April 21, 2020 at 16:25:04 pm

R2L wrote: ...This converts to maybe 16 real changes over 231 years, or one per 14 year interval.

That to me is good news.

Our constitution, by it's nature, should not be subject to an easy Amendment Process. Unlike The Law, our Constitution is a created to be a long-lasting statement of the Principles that guide law-making and set out the Philosophy of We The Sovereign People. Unlike The Law, it should not be subject to Amendment for light and transient reasons. This is why I support Article V as it was written.

If you want an Negative example to bolster this argument, look to those of the Several States that have relatively easy ways to Amend their Constitutions.

For example: The Commonwealth Of Massachusetts [the oldest functioning constitution in the world] has been Amended 120 times since 1780. Said Amendments are often concerning themselves with matters that should be left to The Law, so they can more easily be Repealed. Said matters they concern do not rise to the level of Constitutional Rights. Thus, many State Constitutions are a mess - they have become mere tools of the Elite.

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Bob Belvedere
on April 22, 2020 at 01:20:00 am

I agree with you that amendments should not be made for light and transitory reasons, and that Article V helps to ensure this by providing substantial super-majority barriers to actually ratifying proposed amendments. But (if I understand it correctly) all 27 of the successfully ratified amendments (and dozens or hundreds of failed alternative candidates) have been created via the Congressional path The convention of the states approach in Article V has never been used. This suggests to me that expecting a groundswell for substantive and long term changes to occur via an ad hoc convention may be too great a barrier, although the Framers were wise to include such an alternative to purely Congressional action.

If the COS path has not been used in 231 years, maybe it is deficient in some way and merits “assistance” for those cases where it is superior to the Congressional creation path (e.g., revisiting the 17th Amendment or better controlling the allocation and spending of the current and future citizens wealth). A mechanism that mandates a periodic COS but that also controls and restricts the topics on the agenda (so as to avoid a “run away convention”) strikes me as a welcome improvement on the current situation. Creating amendments should not be too easy, but also not too difficult when circumstances may merit corrective action.

I also agree with you about the status of state level constitutions, although my exposure as a voter has been solely to Florida’s. I often vote against proposed state amendments (even when I agree with its intended result) because they strike me as appropriate for legislative acts but not the constitution.

The state level case is probably a result, at least partly, of the differences in sovereignty within the states and between the states and federal levels. I gather the original 13 colonies that became 13 independent but confederated states then became dissatisfied with the limitations of their confederation. Thus they came together and created the national constitution so as to grant a (greater?) portion of their individual sovereignty to the national government, with restricted, enumerated and limited ancillary powers (a more perfect union). The constitution in turn granted to the national government sovereignty over the expanding territories of the nation, until such time as a territory petitioned for and was granted statehood. At that point each new state was granted the same level of sovereignty as its 13 original peers. The federalism concept of subsidiarity holds sway with them as much as with their colonial predecessors.

I could be wrong as to how it works in all states, but it seems that sovereignty in the states starts at the top, and is then granted “downward” to the counties and cities within them. The lower level jurisdictions do not have the same historical relationship to the states as the states do to Washington DC. The state constitutions may attempt to replicate a bottoms up relationship, but the reality (as seen with our recent lock-downs) is that the state has considerable police powers over its citizens as long as it does not violate the rights secured at state or federal levels. Mayors might also issue lock-down orders, but they do so under the umbrella of delegated state power.

I suspect that unless a state government is acting unconstitutionally, when push comes to shove, it’s actions would survive in court any resistance presented to it by county governments or sheriffs, or even large city mayors. The governors also control the National Guard (aka militia) unless they are federalized. The political voice of any impacted groups might be heard at the next election, but until then the given sovereignty relationships stay in place. Thus the state constitutions tend to become the “play things” of powerful groups and factions within the state. Sometimes a county or city political machine might be one of these groups if the issue at hand relates to their location/geography or major local industry. Usually the lower level jurisdictions cannot speak as true sub components of state sovereignty because the state’s sovereignty comes from the people as citizens and residents of the state, not as residents of a given county or city. The county or city might wish it could collect and marshal that group of individual sovereignties on its own behalf, but it can’t because it was not empowered first.

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R2L
on April 30, 2020 at 16:08:07 pm

Thank you for the reply, R2L...much food for thought.

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Robert Belvedere
on April 21, 2020 at 16:58:29 pm

If i may be permitted, allow me to "unpack" (from Paladin's fine commentary) the meaning of his (not improper) denigration of the term *legal imagination." I will do so by copying wholesale from Mr Bond's solid commentary.

Legal Imagination "...is a [purposive and ideologically conditioned] tactic, however, in reading texts, particularly legal texts, with intentional dishonesty. Doing so debases the language, it debases our political and legal life, and no matter how well-intended, it debases the reader himself or herself" that is deployed not only absent the apparent awareness of the practitioner but is generally accompanied by social preening and posturing toward the au courant legal / ideological fantasies of the day.
It garners support and encouragement from the academy, the commentariat and the envious mal-educated of the citizenry, all of whom will, in support of this destructive purpose "resort to the most cynical and brutal, the most vicious and venomous, the most insidious and pernicious rhetorical broadsides and corrosives (and that does not exaggerate the situation in an era when it is commonplace to be confronted and assaulted with Alinskyite tactics, gaslighting perversions and highly sophisticated forms of disinformation in general "

As an aside, every time I encounter the 'legal imagination, I am reminded of those High School sophomores who, in 2nd year logic, religion or philosophy courses could always be counted upon to raise some childish exception to First principles either for the acknowledgement from the teacher or for the sheer joy of being viewed as insightful. It was sophomoric then. It is downright dangerous now. Yet, still they seek AND are afforded the recognition of the academy as stand in for their high school teacher, the commentariat or the usual (and like minded / constituted) minions of madness inhabiting the progressive sector of the political spectrum. This further blinds them to the observable world and causes all manner of cognitive discrimination / exclusion.
For gawd sakes, Sophomores - Grow Up!

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gabe
on April 22, 2020 at 14:51:14 pm

.” If one doesn’t believe that the current Constitution promotes society’s “common good” if read honestly, then propose a different constitution that would achieve the common good as one sees it, and we can debate the proposal. But don’t advocate reading the current Constitution dishonestly to achieve purposes any honest reader would admit the text doesn’t support.”

If Aunt Jenny had written this essay, I think my reply would be to Aunt Jenny, etc.-

To Whom It May Concern,

If The Constitution Of The United States is read honestly, but does not promote The Common Good, one need not propose a new Constitution, one need only look for the error in Substantive and thus Procedural Due Process Law.
Just as, when it comes to Divine Providence, one cannot deny The Spirit Of The Law, without denying The Letter Of The Law, so too, one cannot deny the spirit of The Constitution, without denying the letter of the Constitution, and the Republic for which it stands, “One Nation, Under God, Indivisible, With Liberty And Justice For All”.

Godspeed!

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Nancy
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on May 07, 2020 at 17:52:15 pm

[…] James R. Rogers, associate professor of political science at Texas A&M University, argues that a non-originalist approach to the Constitution “debases the language, it debases our […]

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