Originalism in Constitutional Law

Our regular readers are aware of our blog contributor King of Ireland's challenge to "Culture Warriors" on constitutional interpretation. Ed Brayton was kind enough to respond, and took the discussion over to his digs Dispatches from the Culture Wars. You can read his thesis there, and this was my reply:

I had replied to your question on Loving v. Virginia [the seminal Supreme Court racial intermarriage case] at American Creation with this:

A ban on interracial marriage would have meant that marriages [black-black, white-white] would have been "separate but equal" based on race.

...continuing my previous observation

As for Plessy, etc., a "textualist" reading of the Fourteenth Amendment would say that if they meant "separate but equal" instead of "equal," that's what they should have written.

First you look at the text, and it says "equal." Then, to not get sophistic about it, you look at the "original understanding" by the ratifiers, in this case, the 14th Amendment: Equality for black folks was clearly understood.

For the record, I do not endorse "all three" methods of "originalism," and in fact I was quoted as citing James Madison approvingly against "original intent," that of the Framers. As a matter of fact, Madison was delaying publishing his notes of the Framing debates:

"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."


In our original exchange, I wrote

"In other words, we may have trouble figuring out what they said or thought back then, but it's not hard to tell what they didn't say..."

The core virtue of "originalism" is simply this: Where the constitution is silent, it is silent.

There is no constitutional, federal or judicial cure for the zillion things that make up the human condition, and "principles" or "penumbras" often become contentious if not tortured and absurd. Sometimes, you just have to pass a law.

One would think Michael Vick has a constitutional right to dispose of his property as he sees fit, but we don't permit cruelty to animals. The constitution is silent on cruelty to animals; a law banning it is constitutional, but so would be a law that protects it, much as that offends our sensibilities, our "standards of decency," if you will.

The same would be true of cannibalism [assuming the eat-ee gave his permission]. And so on.

Now, even if [Ed Brayton's] audience finds my answer on Loving to be unsatisfactory (I expect they will), I object to the nature and reframing of this debate on "originalism" at the outset: Even if the method could be proved to be inadequate [in some difficult cases], as Justice Scalia puts it [I quote him not out of authority, but out of the fact he does this for a living, puts the point well, and my natural laziness encourages cut-and-paste whenever possible]:

"There is saying in politics that you can't beat somebody with nobody. No matter how bad the candidate run by the other party is, unless you put somebody up you're going to lose. It's the same thing for philosophies of constitutional interpretation. If you don't like originalism, and some originalism pause to debate. Originalism has a lot of problems. It's not always easy to do. Sometimes it's very hard. Sometimes it's awful hard to tell what the original meaning was. I'll acknowledge all of that. But the real problem is not whether it's the best thing in the world, but whether there's anything better. And what you have to ask the non-originalist law professor or whoever else is, "what do you propose?" What does a judge consult, if not the original understanding of the text? What binds the biases of judge? Prevents him from simply implementing his own prejudices? What is the standard? And the fact is, I have never heard another one that has a snowball's chance in hell of ever being adopted by more than two people. What are you going to use? The philosophy of Plato? Natural law? That's handy. That will tell judges what to do. Some suggest the philosophy of John Rawls. Public opinion polls? Is that what you want? What do you want to use? If you don't take what I suggest, what is the standard? The answer is, there isn't any."


So, it's fair to put "originalism" on trial, but not as the only defendant. My criticism of Ed Brayton's method of "principles" stands, that

I think by the time we get done claiming "principles," we've obliterated history and fact, and substituted abstractions for reality and reasonableness. This will not do.

I thank Ed for his courteous reply, and have offered him space on our mainpage if he'd like to make a lengthier reply than is suitable for a comments box.