I think that the best argument for originalism is that it is required by the principle of the Rule of Law. (Jeffrey Pojanowski’s contribution to an online symposium on originalism organized by Diritto Pubblico Comparato ed Europeo earlier this year makes this argument nicely and concisely.) So I probably brought some confirmation bias to a re-reading of Lon Fuller’s discussion of the Rule of Law requirement of “congruence between official action and the law” in The Morality of Law, which makes me think that he would have been at least sympathetic to originalism.
If law is to guide the behaviour of those to whom it is addressed, it is not enough that it be public, intelligible, stable, and so on. It must also be applied and enforced consistently with the way it is supposed to be. A failure of congruence, Fuller explains, amounts to nothing less than “the lawless administration of the law”. (81) It can result from a number of causes, some perhaps innocent, like “mistaken interpretation”; others having to do with the lack competence or intelligence; and in extreme cases “bribery”, “prejudice”, and “drive towards personal power”. (81) (The attempt at classification is mine; Fuller, somewhat oddly, presents this various causes pell-mell.)
Importantly, although one might be tempted to think that it is primarily the executive that has to be vigilant to ensure that it applies the law as written, Fuller was clear that the requirement of congruence is addressed to the judiciary too. The lower courts had to ensure that they applied the law as set out by the higher ones, but even an apex court has responsibilities towards the Rule of Law. After a detour into the importance of generality, coherence, constancy, and prospectivity in the articulation of adjudicative law, Fuller writes:
The most subtle element in the task of maintaining congruence between law and official action lies, of course, in the problem of interpretation. Legality requires that judges and other officials apply statutory law, not according to their fancy or with crabbed literalness, but in accordance with principles of interpretation that are appropriate to their position in the whole legal order. (82)
He proceeds to recommend the principle of articulation articulated in Haydon’s Case, (1584) 3 Co Rep 7a:
for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy.
Now, this quotation, which I have presented in the same way as Fuller does, is somewhat incomplete. Here is the full statement of “the office of all the Judges” according to Heydon’s Case:
always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
Fuller, instead of the reference to “the true intent of the makers of the Act”, adds one further element of his own,
a fifth point to be “discerned and considered,” which might read somewhat as follows: “How would those who must guide themselves by its [i.e. the Act’s] words reasonably understand the intent of the Act, for the law must not become a snare for those who cannot know the reasons of it as fully as do the Judges. (83)
In subsequent discussion, Fuller proceeds to criticise what he calls “an atomistic conception of intention”, which “conceives the mind to be directed … toward distinct situations of fact rather than toward some significance in human affairs that these situations may share”, (84) and denies the relevance of intention in interpretation, or at any rate in difficult interpretative questions, which arise in individual situations ostensibly not anticipated by the legislator. Intention matters, Fuller insists, but it is clear from the example he uses ― that of a dead inventor whose work must be continued from an incomplete design by another person ― that it is not an actual, specific intention that he has in mind, but the general purpose of the document to be interpreted that can be ascertained from its contents; indeed Fuller commends the exclusion of “any private and uncommunicated intention of the draftsman of a statute” (86) from its legal interpretation.
How does this all translate into approaches to constitutional interpretation ― which, after all, Fuller does not actually discuss? Many Canadian readers will no doubt be inclined to think that Fuller is advocating something like purposive interpretation, to which the Supreme Court of Canada sometimes professes to adhere. But, as Benjamin Oliphant and I have explained in our work on originalism in Canada, purposivism, especially as articulated in … is arguably compatible with some forms of originalism. Fuller’s purposivism, it seems to me translates fairly well into public meaning originalism, given its emphasis, on the one hand, on the circumstances of the law’s making as being key to interpreting it, and on the other on the reasonable understanding of those to whom the statute is addressed as one of the guidelines for the interpreters. Fuller’s exclusion of the “private and uncommunicated thoughts” reinforces my view that it is public meaning, rather than original intentions, originalism that he supported, while his rejection of the “atomistic conception of intention” shows that he would have had no time for original expected applications ― which, of course, most originalists have no time for either.
Of course, Fuller was writing before originalism became a word, and a topic for endless debate. It is perhaps presumptuous, as well as anachronistic, to claim him for my side of this debate. Then again, Fuller himself insisted that text are not meant to apply to finite sets of factual circumstances within their author’s contemplation. So long as the mischiefs they are meant to rectify remain, they can be properly applied to new facts ― something with which public meaning originalists fully agree. In the case of the dead inventor, were we to summon his “spirit for help, the chances are that this help would take the form of collaborating … in the solution of a problem … left unresolved” (85) ― not of the dictation of an answer. And failing that, if we stay within the inventor’s framework, and remain true to his general aim, we have done the best we could. This is a standard by which I am happy to be judged.