Originalism is an enormously popular—and equally criticized—theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism.
The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice.
Originalism is an enormously popular—and equally criticized—theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism.
The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice.
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Overview
Originalism is an enormously popular—and equally criticized—theory of constitutional interpretation. As Elena Kagan stated at her confirmation hearing, "We are all originalists." Scores of articles have been written on whether the Court should use originalism, and some have examined how the Court employed originalism in particular cases, but no one has studied the overall practice of originalism.
The primary point of this book is an examination of the degree to which originalism influences the Court's decisions. Frank B. Cross tests this by examining whether originalism appears to constrain the ideological preferences of the justices, which are a demonstrable predictor of their decisions. Ultimately, he finds that however theoretically appealing originalism may seem, the changed circumstances over time and lack of reliable evidence means that its use is indeterminate and meaningless. Originalism can be selectively deployed or manipulated to support and legitimize any decision desired by a justice.
Product Details
| ISBN-13: | 9780804784696 |
|---|---|
| Publisher: | Stanford Law Books |
| Publication date: | 01/09/2013 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 240 |
| File size: | 2 MB |
About the Author
Read an Excerpt
The Failed Promise of Originalism
By FRANK B. CROSS
STANFORD UNIVERSITY PRESS
Copyright © 2013 Board of Trustees of the Leland Stanford Junior UniversityAll right reserved.
ISBN: 978-0-8047-8382-8
Chapter One
The Undeniable Appeal of Originalism
Originalism, the theory that the Constitution should be interpreted according to the meaning or intent of the drafters, has great appeal to Americans. At one time closely associated with the conservative movement, originalism is now commonly held as an important, if not the exclusive, device for interpreting the Constitution. This has not been our historic practice. Over thirty years ago, Munzer and Nickel (1977, 1029) wrote that "one does not have to dig very deeply into the literature of American constitutional law to suspect that many constitutional provisions do not mean today what their framers thought they meant." Yet originalism still has great appeal.
A large number of Americans say they believe that Supreme Court justices should interpret the Constitution solely based on the original intentions of its authors (Greene 2009c, 695–696). In the legal academy, the amount of ink devoted to originalist theory is enormous. The revival of originalism is evident at the Court level. One quick survey found that in 1987 analysis of history figured in only 7 percent of the constitutional cases, but by the 2007 term historical analysis was involved in nearly 35 percent of the opinions (Sutton 2009). While still representing a minority of cases, the trend line appears strong.
There was a time when originalism was considered "dead" and "trounced by many academic critics" (Barnett 1999, 611). One of today's leading originalists declared that if "ever a theory had a stake driven through its heart, it seems to be originalism" (Barnett 2004, 90). The theory was "rebooted," though, and surged in popularity. Conservative academics developed new and more persuasive theories for reliance on originalism. The approach has seen much greater attention in law schools in recent years (Ryan 2006). At the court, some claim that "the originalists have prevailed" (Smith 2004, 234).
Originalism has now gone beyond its conservative "base," and conservative bête noire Ronald Dworkin proclaimed some time ago that everyone should be an originalist (though his application of the theory differed dramatically from that of other originalists). One often hears the claim that we are all originalists now. Indeed, in her 2010 hearings on her Supreme Court nomination, Elena Kagan reported that "we are all originalists." Research reveals a dramatic increase in recent years in law review articles focused on originalism and in the use of certain originalist sources by the Supreme Court (Ginsburg 2010).
While originalism long had severe critics in the academy, especially among liberals, this seems to be changing. In addition to Dworkin, Yale's Jack Balkin has come out for originalist interpretation (Balkin 2009), and other leading liberal scholars go along, at least to a degree. The position is not universal, as a number of law professors reject originalism, with a recent article calling it "bunk" (Berman 2009). However, most concede that originalist interpretation is at least sometimes useful, and many argue that it should serve as the primary basis for constitutional interpretation. The theory is certainly in the contemporary debate over proper interpretation.
The discussion over the use of originalism has largely focused on theoretical debates, sometimes delving into great linguistic detail. This book does not focus on the theory of originalism, on which countless articles and books have been written. Rather, I focus on the practice of originalism and how that informs us of the value of the approach. Some understanding of underlying theory of originalism is important, though, to evaluate the practice. The theoretical argument for originalism obviously has a profound appeal.
The appeal of originalism may be viewed as a sign of respect to the constitutional framers. Madison, Jefferson, Hamilton, and others are held in very high regard today. Ron Chernow (2010) has observed: "In the American imagination, the founding era shimmers as the golden age of political discourse, a time when philosopher-kings strode the public stage, dispensing wisdom with gentle civility."
Americans may treat the founders as giants or saints who created for us the Constitution that formed the backbone of our nation. There has been an "almost religious adoration" of the framers (Miller 1969, 181). Accordingly, some among the public suggest that the Constitution should be interpreted according to the founders' intent for it. The Constitution becomes our secular idol and the founders the prophets.
This simple theory is tantamount to ancestor worship and is hard to justify. Today's originalists commonly reject the approach. Originalism is "not driven by fawning celebration of historical figures" (Whittington 1999, 157). The Constitution and its framers certainly were flawed. The acceptance of slavery is the most prominent example of the framers' shortcomings, but there are others as well. The lack of rights for women is another major example of where the framers' views appear somewhat embarrassing in retrospect. And originalism is not limited to the original framers but would also extend to the later amendments to the Constitution.
Comments at the time suggest that individual framers were not themselves so enamored with the wisdom of other framers. Jefferson said that Hamilton's practice was "a tissue of machinations against the liberty of the country," while Hamilton said Jefferson was not "mindful of truth" but a "contemptible hypocrite." Hamilton said of John Adams that he was "more mad than I ever thought him and I shall soon be led to say as wicked as he is mad." Of course, Adams said that Hamilton was "devoid of every moral principle." It does not sound as if they had great trust in the judgment of their fellow framers.
Nor was it clear that the framers themselves favored an originalist interpretation for their Constitution. Some research into the period suggested that the framers did not expect that future interpreters of the Constitution would rely on the framers' purposes and expectations (Powell 1985), though these findings are contested. The framers carefully debated the language of the Constitution and clearly thought that the text, rather than their particular intentions, should govern. Madison wrote in The Federalist No. 14:
Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?
Such textualism, though, can be considered a form of originalism. Our leading framers do not seem to embrace originalism. The most compelling evidence of this seems to come from James Madison himself. He was originally convinced that the Constitution did not authorize a national bank but later changed his mind, in light of legislative precedent and his appreciation of the value provided by the bank to the nation (Dewey 1971). In this, Madison plainly embraced a "living Constitution." Of course, this critique applies strongest to reliance on original intent, and today's originalists have a different approach, as will be explained in the following pages.
Had the framers wanted originalism to be the standard, they could have said so explicitly. At the very least, they could have provided a record that made the original intent as clear as possible. They did none of this. Madison took notes during the Constitutional Convention but did not make them public, as would be expected if he thought they should have authority. Records of the ratification debates on the Constitution are also quite incomplete.
At the time of the Constitution's creation, it appears that the standards for legal interpretation did not rest centrally on the intent of a law's creators. Hans Baade's historical analysis suggests that it was the "universal practice" of courts at the time to look only at the text of an act and "never" resort to the "debates which preceded it" (1991, 1010).
The worship of the framers cannot supply the basis for originalist interpretation, though one suspects that it influences many of today's originalist impulses. The framers were great men in many ways but certainly not beyond reproach, and they realized this. A greater justification is required for originalist interpretation.
There is a very cynical position on the appeal of originalism. Jamal Greene attributes its appeal to its simplicity, its catering to populist suspicion of legal elites, and cultural nationalism (2009c). This surely explains some of its appeal to the general public, as originalism is easy to understand and the public is intermittently nationalist and populist. Post and Siegel (2006, 527) suggest that originalism is "so powerfully appealing because conservatives have succeeded in fusing contemporary political concerns with authoritative constitutional narrative" that is "driven by a politics of restoration, which encourages citizens to protect traditional forms of life they fear are threatened."
These motives doubtless underlie some of the public support for originalism. Alternatively, originalism may simply appeal to a "populist taste for simple answers to complex questions" (Berman 2009, 8). One cannot fairly expect the broad general public to appreciate nuances of legal theory. To prevail in the academy and in court, however, originalism needs a stronger basis. Various academic originalists have provided this basis, relying on more robust justifications for originalism.
A stronger case for originalism is simply that reliance on originalism is required for legal decisionmaking. The Constitution, like other legal materials, is a text. When interpreting another legal text, such as a statute, it is typical to use the meanings of its words at the time of its enactment. Many judges look beyond the words of the statute to the legislative history, to attempt to discern the intentions of those who drafted and passed it.
This is considered simple legal fidelity (Solum 2008). The interpretation of any legal material relies on its text. Balkin (2007) argues that fidelity to the Constitution as law must mean fidelity to the words of the text. The words govern. But the meaning of words is impossible to discern outside their "linguistic and social contexts" (Brest 1980, 207). Originalism provides this context. A text is generally interpreted according to the meaning of its words at the time they were expressed. A legal text remains binding until it is repealed or amended. The constitutional text is that of the framing era, as amended. The framers adopted a written constitution, in contrast to England's more amorphous judicially constructed constitution. This was at least in part in furtherance of a desire for stability of interpretation. The drafters believed that the judiciary could not be trusted without a clear governing text (Whittington 1999). The drafters chose their words carefully, trying to anticipate future circumstances, so that they could last (Gillman 1997).
The change in a word's meaning over time should not alter the interpretation of its earlier meaning. When a law continues in force over time, so does the original meaning of its words. If a nineteenth-century novelist referred to a person as "gay," meaning cheery and pleasant, that character should not now be considered to be attracted to the same sex simply because the meaning of the word has evolved. Similarly, a statute retains its original meaning until it is repealed or amended. The word counterfeit once meant authentic, and the word awful once meant great, but we would not change the meaning of an old statute because those words have transformed their meaning. James Madison noted that the "meaning of the words" contained in the Constitution might change, but the meaning of the Constitution itself should not (Whittington 1999, 58).
Justice Holmes dissented from this vision when he wrote: "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used" (Town v. Eisner 1918, 425). Even originalists recognize that the circumstances are relevant to the correct application of a word, but they would maintain that the word keeps its fundamental meaning.
The Constitution refers to guaranteeing every state a "republican" form of government. This is appropriately interpreted, according to the original meaning, to mean representative government, not government by today's Republican Party (Balkin 2007). The constitutional reference to "domestic violence" is not speaking of spousal abuse but of internal insurrection (Solum 2008). There are plenty of other examples of this phenomenon.
Originalism simply calls for the legal text to be interpreted according to its then contemporary meaning, which is a standard approach to legal or other forms of textual analysis. The process of interpretation arguably calls for nothing else. The framers apparently believed that the Constitution "should be construed to have the meaning attributed to it by some group of persons at the time it was drafted and adopted" (Clinton 1987, 1206). James Madison said that the "true meaning" of the Constitution was that "given by the nation at the time of its ratification" (Dewey 1971, 39).
For a leading current originalist, Randy Barnett, the "intuitive appeal of originalism rests on the proposition that the original public meaning is an objective fact that can be established by reference to historical materials" (2009, 660). If so, constitutional interpretation becomes a question of fact, not one of indeterminate values. Some originalists would maintain that theirs is "the only way to ensure that the Constitution is really law" (Sunstein 2005, 54). Richard Posner (2000, 591) suggests that the "only good reason for originalism is pragmatic and has to do with wanting to curtail judicial discretion."
This is a "rule of law" justification. Without originalism, we have the rule of men and women, specifically the rule of Supreme Court justices. Strictly speaking, judge-created law does not violate the rule of law. The common law is characterized by such judicial discretion, and it is not generally considered contrary to the rule of law. But Justice Scalia suggests that the discretion of the common law is less lawlike than ruling by more rigid tests and that such discretion is inappropriate in the constitutional context. There is no constitutional or other legal authority for justices to create whatever law they desire.
Ultimately, the case for originalism thus appears to be that of the rule of law (Griffin 2008). The constitutional text is the law. If judges do not follow its meaning, they are promoting a rule of judges rather than a rule of law. Only the original meaning, in this view, produces truly lawful decisionmaking. Bevier (1996) suggests that nonoriginalism is a corruption of the rule of law itself. The rule of law basis for originalism does not make claims about the normative legitimacy of the law, though. Although rule of law is presumably better than no rule of law, its value depends on the legitimacy of the substantive law that it is enforcing. To strengthen its hand, originalism has turned to democracy as a justification for its constitutional law.
Originalism has been considered necessary for true democracy of popular sovereignty (Whittington 1999). The American people exercised democracy to create a Constitution, and its commands should be given effect. This is the basis for the Constitution's legitimacy (Farber 1989). The Constitution was ratified through a democratic process (though democracy of the time was surely imperfect), and it had no force until this time of ratification. Democracy implies that democratic actions that become the law remain effective until legally repealed. Originalism is said to be the only means of interpretation that is faithful to what the people democratically agreed on (Whittington 1999). Allowing unelected justices to alter that popularly agreed-on meaning is to make the justices sovereign, not the people.
The Constitution can be altered through a democratic process of constitutional amendment. Amendment is challenged as a democratic process for constitutional change because as few as thirteen states can block such an amendment, no matter how small their relative population might be. While amendment is difficult and requires more than a simple majority, such supermajority requirements may be democratically beneficial (McGinnis & Rappaport 2007). Any other method of alteration of the original meaning arguably undermines democracy because it denies people the democratic right to make rules (such as the requirements for constitutional amendment) that will be applied in the future.
(Continues...)
Excerpted from The Failed Promise of Originalism by FRANK B. CROSS Copyright © 2013 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1 The Undeniable Appeal of Originalism 1
2 The Meaning of Originalism 23
3 The Materials of Originalism 45
4 Originalism before the Warren Court 73
5 Originalism since the Warren Court 91
6 Evaluating the Supreme Court's Use of History 107
7 The Justices of Originalism 119
8 Ideology and Supreme Court Decisions 152
9 The Intersection of Ideology and Originalism 173
Epilogue 190
Cases Cited 195
References 199
Index 217