As a law student, the predominant theory of constitutional interpretation was the “living Constitution.” That’s what we were taught. That’s what we believed to be right. It made sense, as the document ratified in 1789 couldn’t possibly account for all that would follow, and the only way it could survive was to evolve to address the needs of a nation over time. Frankly, I never thought all that hard about it at the time. All the prawfs said so, and so it was.
As the word “originalism” began to emerge as an alternative to interpretation, I was forced to give it some thought. I didn’t want to, as thinking was hard and could lead to unpleasant things, like headaches. Who needed that? But then, emanations and penumbras never really made a lot of sense, even when the outcome was something with which I agreed. As a principled approach, it was essentially, “we want to get there and, well, we got nothing, so emanations and penumbras, baby.” Sure, I would take it when it worked in my favor, but that nagging idea that it would eventually turn on me, bite me in the butt, was disturbing.
Not knowing much about originalism, a notion from Bryan Garner’s and Nino Scalia’s book, Reading Law, gave me some insight. Originalism was less mystical divining of what the founding fathers had in mind at the time of signing, but rather a textual basis for the interpretation of a document. Back then, words had fairly specific definitions; the dictionary definition of “gender,” for example, was not yet “whatever.” And they were constrained to use words to express the parameters of the Constitution. No gifs. No emojis. Just words.
So the question isn’t what the “real” intent of the founders was, as expressed by the words used in the Constitution, but the definitions of those words at the time it was ratified. It’s always possible, indeed likely, that signers and legislators who ratified the Constitution had disparate understandings of what was meant, of how it would play out. There were vagaries that left room for dispute, whether intentionally or to get beyond disputes and get it ratified. It’s likely they understood that vagaries would be worked out in time, and that circumstances would change over time necessitating fitting the Constitution to the nation as it developed.
But that’s not my understanding of the core concept of originalism/textualism. I hasten to add, I’m hardly an authority on the subject, as others are, and thus defer to others, both pro and con, for its definitions and parameters. Rather, this is just a working lawyer’s two cents, so take it for what it’s worth. If you want nuance and depth, there are plenty of originalism scholars. I’m not one of them.
If the Constitution said that every person has a right to a banana, and in 1789, the word “banana” was understood to mean plantains rather than the delicious fruit that could end up in your cornflakes or Foster, then every person would have a right to a plantain. Bananas, as we understand them today, weren’t included. Why? Because words have meanings, and when those meanings change from what they meant in 1789 to what they mean today, the constitutional application of those words didn’t.
The Constitution isn’t amended because somebody at Funk and Wagnalls decided to update the definition. Nor is it amended because we, the public, have commonly agreed that the meaning of a word, once fixed, has since changed in its use. There is a way to amend the Constitution. This just isn’t it. This is a hard concept for a lot of people to accept. After all, banana means banana, duh. It seems almost idiotic to suggest that a word could have a specific definition that isn’t the definition commonly accepted today. That’s the part that pisses people off.
But UC Berkeley law dean Erwin Chemerinsky has done a great service by writing an op-ed that exemplifies the point.
If constitutional interpretation must follow the specific intentions of the framers, the results often will be unacceptable, if not absurd. The world of today is so radically different from that of 1787, when the Constitution was drafted, or 1791, when the Bill of Rights was ratified, or 1868, when the Fourteenth Amendment guaranteeing equal protection under the law was adopted.
For example, Article II refers to the president and vice president as “he.” The framers undoubtedly intended that those holding these offices would be men. From an originalist philosophy, it would be unconstitutional to elect a woman as president or vice President until the document is amended.
Chemerinsky is an “emanations and punumbras” kind of guy. I get it. If the Constitution is a “living document,” the Supreme Court is free to extend, invent and reinterpret what might be best described as the “values” of the Constitution to adjust to modern times. And I agree that there are inferences that can, and must, be drawn from broad values in the Constitution, as the founding fathers couldn’t possibly have incorporated every potential nuanced application of the document to address every issue and cockamamie problem people could come up with.
But without parameters, the Constitution is meaningless. So what about “he”?
Up until a few years ago, as was the case when the Constitution was written, use of the male pronoun, “he,” was the accepted protocol for both gender inclusive and indefinite writing. If you knew that the pronoun only referred to a woman, then “she” would be used. But if the pronoun was to include both men and women, or people of unknown sex, then the word “he” was the proper usage. Today, this might outrage some, but that was the protocol, like it or not.
If Chemerinsky was made a Supreme Court justice (hey, it could happen), and felt any constraint by the actual text of the document, he would apparently rule it unconstitutional for a woman to be president based upon the inclusion of the pronoun “he” as understood by a certain group of people today. Yet, few would want that to be his ruling, as it’s wrong to hold that a woman can’t be president, and fewer still wouldn’t question Chemerinsky’s intellect for so ruling.
This is why notions of originalism, of textualism, are valuable in interpreting the Constitution. If we ignore the meaning of the words used, as Chemerinsky would have us do, then we end up precluding women from being president. That’s just not right, Erwin. It’s not at all unconstitutional for women to be president, and I’ll be damned if I’m going to sit idly by as Justice Chemerinsky so rules.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Prof. Chemerinsky, meet the Straw Man fallacy.
Sometimes, the straw man bites back.
Hmmm.
A bit of luck here that “he” can be applied to gender unknown persons in traditional English, since it’s also obvious that the framers didn’t include women in the right to vote much less hold office. Cherminsky’s argument can be properly defeated, but only as a result of happenstance.
Whenever anyone starts with “Hmmm,” it’s almost always followed with something dumb. You might want to find a more substantive rhetorical tick. Now, for a bit of history. The Constitution said nothing about the women’s suffrage, but left it to the states to determine voter qualifications. In 1789, the only state that allowed women to vote was New Jersey, which it revoked in 1807. Why is it that “Hmmm” almost always precedes something completely wrong?
It’s hard to believe that Chemerinsky could be so ignorant of very recent standard English usage. If not, wouldn’t someone of his supposed cleverness realize it would make him look really stupid to anyone who has read any English literature written before about the 1990’s? Or did he expect his audience to be comprised solely of millennials and those who have had their memories recently wiped?
Are frontal lobotomies now expected procedures in certain parts of the legal academy?
He’s playing to a certain audience. It’s incredible that Chemerinsky doesn’t know what’s what, but it’s hardly incredible that he similarly doesn’t realize that those inclined to accept his position are dolts. He’s not going for the Supreme Court, but to be the manipulative king in the land of the blind.
SHG,
The problem for Justices with originalism properly understood–the effort to determine the public meaning of the words at the time they were written–is that it does not hold together as a theory. The Equal Protection Clause of the 14th Amendment could not have meant that black children and white children should be educated together at the time the Clause was written. Indeed, there is no theory of constitutional interpretation that withstands intellectually honest scrutiny including Breyer’s living constitutionalism.
Holmes told us long ago that: “the life of the law has not been logic; it has been experience. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
I readily agree that originalism is a useful tool particularly because it sometimes constrains judges. So too is the common law’s reliance on precedent or even the simple recognition that judges constantly face the counter-majoritarian paradox and as a result should be backward looking when asked to alter the status quo. But there is no unified field theory of judging.
In short, Supreme Court Justices should use originalism like other judicial tools when it is useful. It is not worthy of worship, however.
All the best.
RGK
PS. It is maybe worth noting that the debate surrounding originalism is almost irrelevant to federal district judges in their everyday judicial lives.
I’ve never been a slave to any theory of constitutional interpretation, except for the one that says whatever I think is right. It hasn’t caught on, unfortunately. But I’ve become a bigger fan of originalism as I’ve watched with dread the redefinition of words, or more precisely, the undefinition of words.
Would it be better to view it as just another tool? So we can pull out whatever tool serves our ends in any given case? It strikes me as more principled to use the Magic 8-ball than wrap up our chosen goals in whatever fancy bow makes it pretty and pretend it’s law.
SHG,
I take your point. But that is the false allure of originalism or any other theory of divining Constitutional meaning. To acknowledge that our judicial kings have no clothes and stand buck naked before us is unpleasant but true. Originalism or Living Constitutionalism is a fig leaf for the Justices but the legal realist still sees their junk.
All the best.
RGK
I don’t see how the fact that desegregrated schools cannot be derived from the 14th Amendment (assuming that it cannot) invalidates originalism as an interpretive theory. Your argument amounts to “this is critical to me as a policy matter or is essential in a just society; therefore, if it is not compelled by the constitution by ‘x theory,’ ‘x theory’ must be wrong.” “No interpretive theory can be right unless it produces the right result” doesn’t seem like a powerful criticism to me.
There are quite a few papers defending an originalist justification of brown v board of education. Alternatively, one could simply look to Justice Hugo Black. Justice Black, as both an originalist and a judge on the case, explains how he believed they fit together.
Wouldn’t originalism be a greater threat to the Second Amendment than whether or not a woman can be President. Surely ‘Arms’ meant something different back then than it does today.
No. Arms meant weapons. This isn’t hard.
But this is kind of the heart of the problem. Words can be intended to refer to a generic concept, even though the authors had a certain understanding of that general concept within their own historical context. It’s possible to construe a word either as broadly representing that general concept, or narrowly representing the authors’ specific experience of that concept, and its tempting to switch between the two to reach a preferred outcome.
This is why I offer no support to “intent” as opposed to language. Every person who voted to ratify could have had a different specific intent or understanding, but the words are what they are regardless of hidden meanings that may or may not have been held by any individual.
Right. And the First Amendment doesn’t protect radio, TV, the Internet, or even things written with a ball-point pen.
Or, in either case, evolving technologies do not change the nature of the right protected.
Another issue is that the pronoun is clearly used as a substitute for the Proper noun “President”. The constitution spells out the requirements for a “person” to be president.
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
I believe at the time of signing a woman was considered a person.
Excellent point. This doesn’t merely corroborate the use of “he” as the indeterminate gender, but spells out that any person who otherwise qualifies can be president.
What say you, Erwin?
Maybe he didn’t read that part. He’s a busy guy.
https://goo.gl/images/Qt554e
Everybody still jumbles up cadence and inflection too.
Cherminsky is either daft or dishonest. I know links aren’t allowed, so I’ll just sayt SCOTUSblog’s First Monday’s podcast this week was about how constraining textualism really is.
In the Carter Administration, at least to Alfred Kahn, “banana” meant recession. We probably all have a right to a banana in that sense, but not everyone is positioned to enjoy one.
It’s all according to where it’s strategically placed.