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Why I Am Not an Originalist

The best arguments are often between people who agree on just about everything, and so it is with me and my good friend Roger Pilon. For while we’d be hard-pressed to find ourselves at odds over the problems of the day, we do disagree about the canons of constitutional interpretation. He is an originalist who argues that the Constitution’s meaning is to be found in its text, while I say that originalism is either wrong or self-defeating.

Here’s Roger’s argument, in Law & Liberty:

The premise on which originalism rests is straightforward and simple: judges should follow originalist principles—they should interpret and apply the law as written—because otherwise they’re not applying law, but something else, like their own “corrections” of the law. Thus when Buckley goes on to write that “originalism is necessarily a political creed that seeks to hide its politics,” he’s got it rather backwards. It’s a legal creed that makes no effort to hide—or reveal—any politics, including the politics that brought the law into being. Again, it aims simply to read and apply that law as written. And that is true whether judges are applying the American, the Canadian, or the old Soviet constitutions.

If Roger is right, a judge is bound to give effect to the words of a constitution, however unjust or wrong-headed they might seem. The American Constitution, a fascist constitution, it’s all the same to an originalist. Any attempt to mitigate the rigors of a racist constitution would therefore be condemned by the originalist. But I don’t think many of us would agree with this. Even a liberal constitution may stand in need of judicial tweaking, and the best example of that is the 1867 British North America (BNA) Act that united Canada.

The BNA Act was meant to be a centralizing document. Canada’s Founders thought the American Civil War could be blamed on a constitution that gave too much power to the states, and wanted something very different for Canada. But their centralizing constitution was turned inside out by the Judicial Committee of the Privy Council, which in Citizens Insurance Company v. Parsons (1881) gave a narrow interpretation to the federal trade and commerce power of sec. 91(2) of the BNA Act. In so doing, the Court shifted power from Ottawa to the provinces; and if you’re a federalist, as Roger and I are, I should have thought you’d be pleased with this.

Roger is right about one thing. You can’t be an originalist without being a comparativist. And that, by the way, will tell you something about originalism. For example, a glance at the text of the BNA Act, together with an understanding of what the Canadian Founders meant, will tell you that what matters is their original intent and not the words in the document. The text describes an absolute monarchy; the secret intent was a democracy.

Unlike Roger, however, American originalists generally aren’t comparativists. They don’t speak about constitutions in other countries, even those as free as the United States. Either implicitly or explicitly, they make a claim about the superiority of the American constitution. Roger is much more sophisticated than that, but he nevertheless says of the Framers’ constitution that:

The moral vision implicit in the document, especially after corrected by the Civil War Amendments, comes straight out of the natural rights vision that the Declaration of Independence adumbrated.

That’s an oft-heard argument, but I’d challenge Roger to find passages from the notes of the 1787 Convention that bolster his claim. For my part, it would be easy to come up with scores of delegates’ speeches which are wholly inconsistent with it, from their detestation of democracy, to their acceptance of slavery, to their thoughts about human fallibility and intrinsic vileness. And if we had to wait till 1865 for that to be corrected, what were the Framers in the interim? Chopped liver?

More to the point, if the attraction of originalism turns on the political superiority of the Framers’ ideas over those found in recent Supreme Court decisions (a claim Roger suggests is an “additional reason to be an originalist”), then originalism is necessarily a political doctrine, and as such is self-defeating. Those on the Left who prefer the present constitutional regime and accuse the originalist of hypocrisy, of veiling his right-wing politics behind a screen, would be proven correct.

Is it all politics, then? If it were, I might indeed be an originalist, in America at least. And in 2020 at least, not 1857. But the rule of law means that it can’t be all politics. Instead, we must seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence. That entails a legal regime in which majority decisions of the Supreme Court are legitimately the law of the land, even if one thinks them ill-considered. But in that case, we might, with the benefit of experience, learn how those rules have coarsened and harmed us, and false starts enacted by a temporary Supreme Court majority might prudently be reversed without waiting for a politically impossible constitutional amendment. That’s not the judicial revolution the originalist wants, but then good lawyers instinctively mistrust revolutions.

Reader Discussion

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on April 28, 2020 at 08:35:54 am

Oh my, it's become a habit, Professor Buckley's explaining why he's not such and such.
Last time, he confusingly described himself as "not a natural lawyer" and told us why. Now, it's why he's not an originalist.

For me, Buckley's engaging writing was the only attraction. But that's now become repetitive cuteness, so that reading more Buckley is a literary pleasure not worth the price of the candle of intellectual patience.

From now on I will just let Buckley not be whatever he wants not to be for whatever he reasons he chooses not to be it, and I will not bother to read his "not to be" confession. ( Buckley, unlike Hamlet, is not diffident.)

But if Professor Buckley were to broaden his literary approach and start writing, not about what he is not, but write, rather, about who he is not and why not, for example, "Why I'm Not Donald Trump," I might come back again to enjoy his essays.

I'm sure Professor Buckley has done so, but those who have not read the book yet may think (wrongly) that Buckley's onto something should read Keith Whittington's 1999 book, "Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review."

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Paladin
on April 28, 2020 at 10:55:21 am

I have to say I am an originalist. And the Constitution is the contract with the people over how their governemnt will conduct itself. Originalism is only right wing in the left's eyes because it is an impediment to their goals of bigger governemnt without regard to the document. The SCOTUS should be ruling on cases based on the document and change should come by amendment, not "interpretation" or even defining penumbras thought the 10th Amendment would play there.
Seems this trend to giving SCOTUS the power to ignore the document when convenient was put in place in the 1930's and took on more power in the 1960's. Before there were errors, Plessy comes to mind, but the wholesale abrogation of the Constitution did come post 1930's. Better to have the 13th Amendment passed than end slavery through a convoluted court decision. Better to give nationwide suffrage to women through the 19th Amendment than a convoluted court decision.

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Dick Winningstad
on April 28, 2020 at 13:08:18 pm

I am not at all certain what our Canadian Parliamentarian is seeking.
"Is it all politics, then? If it were, I might indeed be an originalist, in America at least. And in 2020 at least, not 1857."
1857 - Dred Scott decision.
Is Buckley asserting that Justice Taney employed originalist jurisprudence in rendering this horrible decision?
No, Taney did what Buckley would have us permit and encourage. Reading into COTUS that which is necessary to achieve a purposive end. Taney concluded that Scott was not to be free ONLY by denying that Scott was a "person." Is there anything, text, intent, nay even error in COTUS that permits a Jurist (or anyone else for that matter) to reach such a damnable conclusion. Is there some "Non-person" clause in COTUS that has escaped us all these years?

"That entails a legal regime in which majority decisions of the Supreme Court are legitimately the law of the land, even if one thinks them ill-considered."
And how would Buckley then view Dred Scott?
Or more currently, Roe v Wade, wherein the same tactic of denying "personhood" to an unborn child is sufficient justification for the termination of that child's life.
Intent is a many faceted thing, is it not. whose intent? The drafters intent? The Committee's intent? The intent of the compromise forged in order to pass the Law or the Amendment? Leftist Jurists are quite skilled, and quite ready to divine intent as they see intent. It may even be said that they are "Blinded by intent" and they proceed with all the fervor and verve exhibited by Bruce Springsteen in his 1973 song "Blinded by the Light" It is just as shallow and insubstantial as was the Boss' song. Moreover, as with almost all "popular" jingles", au courant policies, it may be read to mean any damn thing you want it to mean.
And not unlike judicial interpretation. the preferred meaning is not constrained by the lyrics (or text).
Make of it what you will, boyos. It is, after all, just another Top 40 song on the Hit Parade.

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gabe
on April 28, 2020 at 13:30:23 pm

An obvious straw-man argument. Is there any "originalist" who argues that every constitution devised by humans anywhere in the world should be strictly adhered to by judges (or anyone else for that matter)? Doubtful.
The issue, in the United States, is whether or not necessary changes in both legislative law and the fundamental precepts of the Constitution, should be changed by a rotating junta of five of nine Supreme Court justices or by something more democratic -- namely elected legislators (at local, state and federal levels) and, for the Constitution itself, one of two processes that tap more directly into widespread public views.
Any provision for amendments acknowledges that the "original" Constitution may need to be changed at some point in the future.
One can argue that any combination of five Supreme Court justices are smarter and more knowledgeable than the average voter, and, are therefore better equipped to decide all issues that may be in dispute. So, could five justices then decide that they are better equipped to select new Supreme Court justices? Or that the Constitutional provision for the impeachment of justices be declared null and void?
Originalism in the U.S. is rather modest. It claims the U.S. Constitution, even with its amendments, is a sturdy instrument for providing reasonably good governance. It needs to be more stable, or fundamental, than simple legislative or regulatory acts. The oath Justices then take is to "uphold" not tinker and change, the Constitution. One might even argue, if they fail to adhere to their oath, they should be removed.

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Robert Schadler
on April 28, 2020 at 20:08:50 pm

Very well argued, Robert. Why not dump the the other two branches, and just let our wise overlords rule on all legislation while we're at it. Originalism is a logic based approach, not a right wing version. Do we need to cite all the cases where Roger Pilon has gone against the right wing USING originalism? This article was not well thought out by the author. If you're not using the original meaning of a legally binding document, on what possible rational basis could you make an interpretation or ruling??? Do you divine it thru modern progressive notions of justice or tea leaves?

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anony mous
on April 28, 2020 at 16:11:20 pm

The starting point for constitutional or statutory construction and consequent application should be the plain meaning taken from the text and context. If that intent is unattractive, as with the BNAA example, or more appropriately, slavery, or currently the electoral college or 2nd Amendment, the US Constitution has within it mechanisms for remedy (Art V). On the other hand, this legal structure of amendment is too hard, you may follow the “Higher Lawmaking” technique advocated by Bruce Ackerman in "We The People," (Belknap Press, 1991), wherein he describes with approving relish the “modern” process of subverting[!] the Constitution by legislation and judicial decisions. That's the quick and very dirty way to avoid the Founders' intent.

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John Tate
Trackbacks
on May 04, 2020 at 06:29:08 am

[…] thank my good friend Frank Buckley, not only for favoring me with a rejoinder to my critique of his “We Can Do Better Than the Founders’ Constitution,” but for […]

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