The futility of legal Originalism

by: Daniel De Groot

Sun Jul 11, 2010 at 10:30

The Intuitive Appeal of Originalism

Like so many issues that fall into a classic left-right divide, the right wing position on Originalism benefits from simplistic "common sense" virtues.  In daily life, words have meaning, usually unless someone is being clever with some kind of double entendre, poetry or witticism, their words mean one particular thing, and even if one can contrive another meaning out of the words, both parties usually know what the intended meaning was by the context.  Further, most everyone despises legal pedantry in the form of intricate and nearly indecipherably dense legal contracts ostensibly made necessary by disingenuous lawyers creatively interpreting clauses to twist the intended meaning.  So there's already some good reasons to favour plain language obvious interpretations coupled with the natural human tendency to believe that one's unthinking assumptions about the meanings of words are shared by all.

In daily life, this sort of originalism is useful and necessary.  When it comes to interpreting an email from your boss, or a note from your spouse, they probably aren't going to write something in a deliberately ambiguous way out of some inability to decide what meaning they want to convey.

This last bit often stops being true when it comes to legislators writing laws (including constitutions) over contentious issues.  Here's where it will often or nearly always become impossible to nail down the "original" meaning of any law, whether written in the 1700s or last week.  The usual approach has been to focus on the person who wrote the clause.  What do their other writings say?  What might they have said in legislative debates about the measure?  What did they say years later?  This has some value in understanding what the drafter might have been aiming for, but in no way can be assumed to resolve the issue definitively.  Here's some problems:

• Multiple drafters and editors.  The more important a law is, the more people probably participated in writing, revising and editing it.  How many committees worked on the Health Care Reform legislation?  What if they have conflicting understandings of portions of the law?  Whose meaning wins?
• Even more people have to vote to pass or ratify a law.  Once out of the drafting committees, laws need to be endorsed either by legislative bodies, but also sometimes by mass plebiscite.  What did the other legislators think the law meant?  What about the voters?  Was the media coverage accurate?  Did one side in the debate have a massive advantage in media presence?  It is easy to imagine a law being written with a certain intended meaning, but taken to mean something else and voted on for or against, on that basis.  How many zombie lies do we wrestle with today?  Was the past really much different on this?
• Language can be deliberately ambiguous.  What if the committee couldn't resolve an issue, and someone proposes language that can be read either way, in order to try and deceive the other side of the debate, or possibly to intentionally leave the issue unresolved for future generations because of a current deadlock and a need to move on?  Language could have been written to try and placate multiple conflicting voter constituencies as a cynical ploy by legislators giving lip service to the issue.  These legislators will swear up and down publicly that it meant one thing, but who really knows?  Some legislators are good at Kabuki, and detecting centuries old Kabuki is even harder.
• Shifting meanings of words and phrases.  Language evolves and words don't always mean the same thing 50 or 100 years later, sometimes dramatically so.  This is pretty well known, and in context to the gun debate, the meaning of "well organized militia" is a pretty obvious candidate here.
• Differing understandings of words or phrases within an era.  Anyone who has travelled through Europe has experienced the phenomena of accents varying over even very small geographic areas.  Sometimes street to street within a city!  This sort of isolation/evolution speaks to the very real possibility that contemporary legislators from different parts of the country understood a law to mean different things based on their localized linguistic norms.  Add the shifting meanings problem and consider legislators with a generational age gap also understanding language differently based on age differences.
• Human error.  The Bill of Attainder written to destroy ACORN had the humourous side effect of also banning government funds going some of the giants of the Military Industrial Complex.  Legislators are human, some are stupid and mistakes happen.  Usually the mistakes are not so glaring (and hypocrisy exposing) but that only makes them more difficult to sort out.  The more complex the issue the greater the propensity for error.

There may be others, but this list should suffice to caution anyone against blithely asserting to have determined the One True Meaning of nearly any law, never mind a law hundreds of years old like the Bill of Rights.  Returning for a second to the meaning of the Second Amendment, as the excellent reply to Gray's essay notes, John Paul Stevens' Heller dissent pointed out a much more explicit version of the Second Amendment that was not adopted by the first Congress:

"That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers."

Without digging too far into the muck here (as I am not trying to resolve the "original meaning" of the Second, and am instead arguing there is no such thing), it does appear that there were other proposals for the Second, and anyone claiming it absolutely means nothing but an individual right to bear arms, need to at least account for why clearer language was not adopted, and why that bit about militias is in there at all.  

Conservative Hegemony

Lastly there is the problem of falling into the hegemonic culture war trap laid by conservatives.  They like Originalism because the 1700s predates so much of the philosophical and social progress that liberalism brought, so it's quite obvious for them to continually appeal to the value preferences of a polity that much more closely adhered to their inegalitarian ideological vision.  Even so, they have to rely a great deal on historical revision in order to make the US framers more conservative than they were, but in general society was a lot more conservative on many issues in the 1700s than today.  When liberals adopt Originalism in this way, they're bolstering a whole lot of other silly appeals to authority of various dead people in support of many atrocious conservative causes.  

Besides, conservative Originalists have long proven themselves as mendacious in their penchant for always finding that the "original" meaning of every law favours the current preferred conservative outcome.  This sort of dishonestly is a little easier to cover up when applied to the wealthy white Protestant male dominated society that was the early United States.  It's more obvious when they try this on laws passed in liberal eras, like the Civil rights laws or pay equity legislation but that is all the more reason for liberals to stand united against Originalism, so that they have maximum credibility to point out this sort of hypocrisy.

If Not Originalism, what?

It must be said that Originalism does have some value in statuatory interpretation.  We can live with some flexibility but the stability of settled law has value too, lest meaning itself collapse into pure post-modern subjectivity.  While I am arguing it will be often impossible to settle on a single specific "original" meaning, it is usually possible to reject certain linguistically possible but historically unlikely interpretations.  If say, the current meaning of a word simply did not exist when a given law was written, it would be implausible to argue that a given law could have meant that thing.  An interpretation of a given law may have been only a fringe view in the day and should not be taken seriously;  So if some day a future administration tries to use the HCR bill to enpanel actual Death Panels, the existence of Tea Party crazies who actually believe the law means that shouldn't be given much weight in that (unlikely) future legal debate.  But when it comes time to ajudicate the Nelson/Stupak abortion language at a nitty gritty level, there are multiple interpretations of those clauses that need to be considered and given the above list, Nelson or Stupak's claimed intentions in the language cannot be taken as Gospel.

But if there is no single true meaning, how can it be resolved?  The answer here relies on a deeper appeal to the principles and values of the polity itself.   Laws are only an imperfect expression of principles, the whole Originalism thing tries to make virtues of pedantry and trivia, rather than dealing with the real reasons why a given law is contentious.  If a computer program were to analyze all US laws against some imaginary perfect understanding of English, it would no doubt detect many thousands of ambiguities.  Most of these are of no consequence since the other potential interpretations have no significant support.  For things like the meaning of the Second, there are good reasons this is debated, because it speaks to a much more fundamental debate about the nature of society.  

Beyond the technical reasons for the futility of Originalism, this is the real crime of it, that it tries to paper over deep philosophical conflicts instead of confronting them.  It's why Judges have to have empathy, and why they have to be more than human versions of a linguistic computer program.  It's why the consequences of a law have to be considered in order to assess how the actual results comport to the deeper philosophical values of society at large when choosing among competing potential interpretations.  It's difficult and contentious, but this sort of debate at least decides ethical questions based on values, rather than attempting to reduce them to dry linguistics and indeterminate history.  Ultimately the record of conservative Originalist jurists shows that they in fact do decide these questions on value grounds anyway, using the linguistics and history as a fig leaf.  Better for liberals to be honest about doing so openly.