Originalism is the way we all want to be read, so why doesn't it have more adherents?
In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is to limit the power of unelected judges and to promote the rule of law.”
Indeed, originalists themselves often advance this claim as well. And there’s a sense in which it’s true. But critics often appeal to reductionistic versions of this claim to set up a Straw Man argument (albeit, one that overzealous originalists sometimes invite). The Straw Man I frequently hear from critics is that originalism promises to identify exactly one determinate meaning for each legal text. Then with a smirk and a wave of the hand, originalism is perfunctorily dismissed with the mere mention of texts that prohibit “unreasonable searches and seizures” or that vest “executive power.”
To be sure, just because a text can abide two or more reasonable readings does not perforce mean that it can mean anything at all – so originalism does provide a discipline that narrows the set of possible interpretations. Nonetheless, I think the real appeal of originalism lies on a different foundation.
The real force of textualism, it seems to me, is not its effect in constraining judges one way or another. Rather, the force of textualism is that it suggests we read legal texts akin to how we read other texts in ordinary life, whether a sonnet by Shakespeare or a letter from Aunt Emma.
To be sure, textualism limits interpretive options after a fashion. But reducing the set of interpretive possibilities is not the same thing as reducing the set to a singleton. As anyone who has mused, or argued, over what a passage in Shakespeare might mean, or what Aunt Emma meant by those couple of sentences in her letter, ordinary texts provide plenty of room for alternative, albeit reasonable, interpretations. But just because there are several – or even many – reasonable interpretations of a text does not mean we jettison our goal: to understand what the other person actually wrote. And we recognize that if we prefer the author had written something other than what actually was written, well, that really doesn’t influence the process by which we seek to provide an honest reading of what was actually written.
Even within originalism itself there are some versions that invite more occult readings of legal texts. So per Scalia, I think it’s useful, even important, to distinguish between original-intent originalism a la Ed Meese, and textualist originalism, a la Antonin Scalia. It’s not difficult to think of examples in which original intent originalism produces legal outcomes opposite of textualist originalism.
In the 1873 Supreme Court decision in the Slaughterhouse Cases, for example, the majority opinion declined to apply the Fourteenth Amendment privileges and immunities clause to protect white butchers in Louisiana, in part, by arguing that the “spirit” of the Fourteenth Amendment (i.e., the intention of the drafters and enactors) inclined against its application in the case.
Justice Miller, writing for the majority, argued
The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history . . .
[I]n the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.
. . .
We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction.
In dissent, Justice Bradley took issue with using the intention or proximate purpose leading to the adoption of the Fourteenth Amendment to limit a reasonable reading of the text itself:
It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed.
In this case textualism did not constrain Justice Bradley’s application of the Fourteenth Amendment. Indeed, his reading would have expanded its application relative to the majority interpretation. But what he sought to do was to provide a fair reading of the text itself. The text itself did not exclude application to the New Orleans butchers, and so neither would Bradley.