This post is co-written with Mark Mancini
The nomination of Amy Coney Barrett, an originalist scholar and appellate judge, to the US Supreme Court provoked a flare-up of interest in originalism from people who do not normally spend much time thinking about constitutional interpretation. That would be all to the good, if this engagement did not all too often rely on myths and misconceptions, some of them dating from the early days of modern originalism, others bearing little relationship with what any serious originalists in the US and Canada believe. (An entire Twitter account has now sprung up to collect some of these misconceptions.) In this post, we address a couple of myths about constitutional interpretation that underlie the memes, tweetstorms, and political zingers, and call on our readers to engage in more fruitful conversation about constitutional interpretation.
Myth 1: Originalism freezes the preferences and intentions of the founders in law
The overall view of originalism held or propagated by most of its lay critics and, alas, many professional ones, is that it is meant to keep it exactly as the framers of the constitution intended, obstinately refusing to recognize any changes in society that have occurred since the framing. Hence the much repeated claims that, for example, Justice Barrett couldn’t even be appointed to the Supreme Court since the framers of the US Constitution had not anticipated women judges. In the Canadian context, those who hold this view insist that a rewriting of the Constitution Act, 1867 by living constitutionalist judges was necessary to make women eligible to serve in the Senate, since the Fathers of Confederation did not mean for them to do so.
These claims are based on several misconceptions. One has to do with the nature of the originalist enterprise. Most originalists today recognize that it is both wrong and, in all likelihood, futile to seek to give effect to the intentions or expectations of the framers of a constitution. Wrong, because only that which is enacted through the relevant constitution-making process, can be binding. Intentions, hopes, and expectations are not. Futile, because―as the critics of early versions of originalism pointed out―constitutional texts are typically compromises reached by large and diverse groups of framers, who do not necessarily share intentions and expectations as to what their handiwork will achieve and how it will be applied in practice.
The task of the originalist constitutional interpreter is to focus on that on which the framers of the constitution agreed and which is binding law: the text. This is not to say that originalism is equivalent to “strict constructionism”. A good originalist knows that text is read in context, and some originalist theories, at least, even accommodate the idea of unwritten constitutional rules. A good originalist, like Justice Barrett, also knows that legal texts can be written at different levels of generality, and that they can employ standards as well as rules, and seeks to give effect to the language as written, neither narrowing it if broad nor expanding it if narrow.
This, incidentally, is another reason why an “expected applications” approach to interpretation is not good originalism. If the framers of the text used language that calls on its interpreters to engage in moral or practical reasoning, for example by prohibiting “cruel” punishments or “unreasonable” searches, the interpreters who would confine the text to what was regarded as cruel or unreasonable when it was enacted would disregard these instructions. To the extent that this is what the derisive label of “frozen rights” or “frozen concepts” interpretation refers to, the derision is justified. But, while in fairness to originalism’s doubters such criticism could be levelled at its early practitioners (including, sometimes, Justice Scalia), contemporary originalists know better than to make this mistake.
As a result, more often than not, originalism has no difficulty applying constitutional rules to changing and developing society. Broad constitutional language will encompass cases not anticipated by its framers. The so-called “Persons Case” is an example: it is probably true that the Fathers of Confederation would not have expected women to be appointed to the Senate, but they used language that, as Lord Sankey shows, naturally extended to women, and therefore did not need to be construed as barring their appointment. Another example from the United States: infrared technology, used to “search” homes from the outside, were clearly not in the contemplation of the framers. But Justice Scalia, originalist though he was, held in Kyllo that using it was indeed a search for the purposes of the 4th Amendment, which protects the privacy of the home from invasion by new means as well as old.
That said, originalists do not believe that constitutional language, even when broad, let alone when precise, is infinitely malleable. As Lord Sankey says in the Persons Case, had the framers of 1867 chosen to specify that Senators were required to be men, no legitimate interpretation could have bypassed or overturned this choice. Indeed, few, if any, living constitutionalists would disagree. This brings us to the next myth.
Myth 2: Originalists just don’t want the constitution to change
What if the Constitution Act, 1867 had specified that being male was a qualification for being a Senator? Originalists believe that such an unfortunate drafting choice of the constitution’s framers would have had to be undone by constitutional amendment, and welcomed such an amendment. Originalism is an approach to interpreting a text as it stands from time to time; it does not counsel against that text being amended when it is no longer in tune with the needs of society, provided that the amendment is carried out by means provided in the constitution, rather than by the courts. The claims, made by originalism’s American critics, that originalists would somehow disregard constitutional amendments that protect the rights of African Americans, women, and other groups are quite without foundation in any originalists’ actual commitments. They also ignore voluminous originalist research into the meaning of these amendments.
In Canada, any appeals to the possibility of constitutional amendment tend to be dismissed as fanciful. Our constitution is said to be impossible to amend. But this simply isn’t so. Indeed, given that Canada is a federation, it is difficult to imagine an amending formulate less restrictive than the “7/50” that the Constitution Act, 1982 makes the default. It is worth recalling that prior to 1982 convention required at least as much consensus, and possibly unanimity―and yet amendments to the Constitution Act, 1867 were made from time to time. This is not to deny, of course, that convincing our fellow-citizens and legislators that our favourite constitutional reform projects are worthwhile is difficult. But this is as it should be in a constitutional democracy, and no reason for seeking to implement these projects through judicial fiat.
A call to Dialogue
Now, originalism is not above criticism or beyond reproach. For example, we might usefully debate the feasibility of inquiries into the original public meaning of constitutional texts, the worry that a public meaning originalism that acknowledges the underdeterminacy of much constitutional language fails to usefully constrain judges, and the possibility that self-proclaimed originalist judges will only use their ostensible commitments as a smokescreen to hide their implementation of favoured policies. Originalism faces theoretical challenges, such as the issue of its relationship with the principle of stare decisis (to which Judge Barrett devoted much of her scholarship), and―especially in the Canadian context―the need to make sense of significant unwritten constitutional rules.
We would welcome engagement with these issues, so long as it took originalism as a serious theory and practice, rather than a self-evidently mistaken unCanadian aberration. For all the protestations of the Canadian legal academy (and, more rarely, of the courts) that originalism has no place in our jurisprudence, it is simply beyond doubt that something akin to originalism is often, although by no means always, an important factor in the Supreme Court’s decision-making. If the Court is wrong to reason in this way, the critics should explain why, instead of insisting, in the face of evidence to the contrary, that it doesn’t.
We would also welcome a clear articulation of the critics’ own interpretive commitments, which is curiously missing from Canadian (and, mostly, even American) scholarship. We are admonished that the Canadian constitution is a “living tree”, but seldom told what precisely this means. For example, when are the courts entitled or required to “evolve” constitutional meaning? On what should they base their decision to do so? Are there limits to their power? By what means does living constitutionalism protect against judges who are less enlightened than the framers of the constitution or who think that changed circumstances require restricting rights instead of expanding them? Without an explanation on these and some other matters, it is difficult to compare the plausibility of living constitutionalist and originalist theories, and assertions of the former’s superiority fall to be taken on faith, which is antithetical to serious scholarly or even political debate.
Such debate would be to our mutual advantage, originalists and living constitutionalists alike. After all, we are not merely trying to score rhetorical points or preserve our positions, whether in politics or in the academy, from competitors. We are trying to answer difficult but consequential questions about the way in which judicial power ought to be exercised and our fundamental laws are to be applied. If we are to have any chance of getting at the right answers to these questions, we need to make our best arguments and measure them against the best arguments of those who disagree with us. Come, let us reason together.
9 thoughts on “Let Us Reason Together”
The US Supreme Court, even with supposed originalists dominating, certainly had no problem discarding with the Framers’ intent, as we saw with Chiaflo v Washington earlier this year, which allowed Faithless Elector laws to stand. The intent of the Framers, made clear in the Federalist Papers, was that the Electors would form a body that would decide the best man to be president. Now admittedly, the 12th Amendment, which by and large created the two party system in the US, marginalized the Electoral College to some degree, but the fact remains that the intent was, as Bagehot stated in The English Constitution “The Electoral College of America is so. It was intended that the deputies when assembled should exercise a real discretion, and by independent choice select the
president.” Further Bagehot wrote “Washington and his fellow-politicians contrived an electoral college, to be composed (as was hoped) of the wisest people in the nation, which, after due deliberation, was to choose for
President the wisest man in the nation. But that college is a sham; it has no independence and no life. No one knows, or cares to know, who its members are. They never discuss, and never deliberate. They were chosen
to vote that Mr. Lincoln be President, or that Mr. Breckinridge be President; they do so vote, and they go home.”
And yet, Faithless Elector laws apparently passed constitutional muster, and the EC remains, just as it was in the 19th century, a rather pointless non-entity. Originalist interpretations seem as self serving as “living document” interpretations.
Only text (in context), not the intentions or expectations behind it, is binding law. As I explained here, Chiafalo is a good application of public meaning originalism: https://doubleaspect.blog/2020/07/08/keeping-faith/.
It is rarely noted, but Justice Kagan (former Obama Solicitor General and reliable progressive) recognized that Myth 1 was a myth at her confirmation hearing and said, “We are all Originalists now.”
Of course, that does bring into question what normative bite originalism has. While it implies that courts cannot decide that a 34 year old can be president of the United States or that PEI’s Senators can be reduced to two, it may be compatible with any number of applications of the essentially-contested provisions everyone cares about.
I don’t think “any number” is quite right. It’s true of course that modern originalism, especially the kinds of originalism that accept a construction zone, does not purport to be fully determinative of every question. Justice Barrett says so (with respect to statutory textualism) in the talk I blogged about just before her nomination. But it still reduces the set of possible answers in a way living constitutionalism, as actually practiced by the SCC or by its advocates, tends not to.
I agree that an originalist has to be committed to a distinction between legitimate interpretation/construction and amendment. But if the text refers to concepts that liberals and conservatives (for example) legitimately disagree about, it can’t asymmetrically constrain one side.
Comstock, even though it is a statutory case, shows this pretty well. In 1964, virtually no one thought it was discrimination based on sex to disadvantage gay or transgender people at work. But what they committed to was a principle that people should not be disadvantaged at work based on their biological sex. A very liberal lawyer like Pam Karlan was able to construct an argument that a conservative like Neil Gorsuch could accept, based on this distinction between application and the principle.
I don’t see why this couldn’t also apply to whether the death penalty is cruel and unusual or whether it is an infringement of liberty without due process of law to ban contraception in Connecticut. The same point could be made for the major Warren Court cases that inspired the originalist counter-revolution in the first place.
I don’t really see why “some of the early originalist counter-revolutionary claims were misguided” is a problem for me or any contemporary originalist. I think this is also a very useful take on originalism producing results constitutional (or statutory) framers didn’t expect and, perhaps, want: https://reason.com/volokh/2020/10/30/originalism-and-accidental-outcomes/.
I am not saying that it is a problem for originalists that early claims were misguided. I think originalism is true! I do, however, also think it is less useful than many originalists claim since the constraints it imposes – at least when it invokes broad normative concepts – are not particularly stringent.