Doesn’t Scalia’s originalism allow for just the kind of moral principle that Vermeule supports?
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.
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.