Cass R. Sunstein, in The Debate Over Constitutional Originalism Just Got Ugly, states two objections related to originalism. First, he finds it vicious that some originalism theorists have accused non-originalist judges of violating their oath of office. Second, he finds originalism to be an inadequate interpretive theory and too restrictive on the discretion of unelected judges.
The accusation of violating their oath of office may be “vicious” and “unpleasant stuff”, but the merits of the accusation hinge on whether originalism is the objectively superior and valid method of interpretation. Most originalists do not accuse non-originalists of consciously violating the oath, but do believe that, in theory, they are. I could not vote to affirm a judicial nominee who is not an originalist, since non-originalists cannot articulate an alternative theory which can adequately guard against judicial willfulness or judicial interpretive incompetence. Non-originalism removes Thomas Jefferson’s interpretive chains, which were to restraint both intentional and unintentional capriciousness. Jefferson declared, “… let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.” One of the accused justices is Thurgood Marshall, who once stated his judicial philosophy as “you do what you think is right and let the law catch up.” This statement changes Justice Marshall into “Legislator” Marshall. It is not the role of a justice to legislate from the bench. If courts legislate, then our separation of powers has been thwarted, leaving us with one executive branch and two legislative branches, but no judicial branch. Sunstein probably believes the only constitutional heresy that exists is that there is such a thing as constitutional heresy. Yet, it is shocking that Marshall would so blatantly articulate such a heretical jurisprudence.
Sunstein begins his critique of originalism by asking, “How should the Supreme Court interpret the U.S. Constitution?” In reality, only originalists can ask the question, “How should the Constitution be interpreted?” Should assumes there is a prescriptive method of interpretation. Non-originalists can ask, “How could it be interpreted?”, because could is simply descriptive. To them, there exists a plethora of interpretive options, depending on the needed results to satisfy the latest ideological fashion. However, the goal of interpretation is to determine a text’s most probable meaning, not a multitude of possible meanings.
The Constitution should be interpreted the same way we interpret any text. Whether it is a lawnmower manual, a traffic STOP sign, a history book, the Bible or a math book, the original meaning intended by the author should be the controlling factor. Of course, not all texts are of the same genre, and a metaphor should be interpreted metaphorically, a literal text should be interpreted literally, and a parable should be interpreted parabolically. Still, the original intent of the author should govern, no matter the genre. Readers are not required to agree with all they read, but honesty requires that they render an interpretation true to what the author placed into the text.
Sunstein is correct in saying the Constitution “does not contain a provision saying, ‘The meaning of the Constitution shall be settled by reference to the original understanding.’” This may be true. Few, if any, of the texts which impact our behaviors and beliefs come with such instructions. The common-sense assumption that texts means what its author intended goes, or should go, without saying. As E. D. Hirsch (Validity in Interpretation) said, “It is a task for [interpreters] to explain why there has been in the past four decades a heavy and largely vicious assault on the sensible belief that a text means what its author meant.” The Framers did address how the Constitution should be interpreted. James Madison wrote, “…let there be no change by usurpation; though this may in one instance be the instrument of good, it is the customary weapon by which free governments are destroyed.” Joseph Story, Associate Justice of the U.S. Supreme Court, in 1833 said, “The reader must not find in these pages any novel constructions of the Constitution. I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution,…by ingenious subtleties and learned doubts…A constitution is addressed to the common sense of the people, and never was designed for trails by logical skills, or visionary speculation.” Thomas Jefferson put it this way, “On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” The Founders knew usurpation, squeezing, and inventing against the Constitution were interpretive ploys which would soon attempt to supplant what they had accomplished.
In 1920, the Nineteenth Amendment was adopted and extended to women the right to vote. The nation did that by utilizing the constitutionally prescribed and democratically legitimate method of changing the Constitution. Who can doubt that if the issue was being addressed today that the courts would be the chosen instrumentality of change? As Antonin Scalia tells us, “The American people have been converted to belief in The Living Constitution, a “morphing” document that means, from age to age, what it ought to mean… This, of course, is the end of the Bill of Rights…” The Living Constitutionalism promoted by non-originalists does not need a formally prescribed and democratically legitimate method for changing the Constitution—they can just ask liberal judges to “gift” to them their latest ideological fad, such as Obergefell v. Hodges. The era of formal amendments is over—that is as long as non-originalists can successfully utilize Living Constitutionalism to ignore the Constitution’s original intent. To be clear, originalism is under assault because the Constitution’s original intent is an impediment to the left’s activist agenda.
Steve Richardson
May 16, 2020