Originalism: What good is it?

[KingOrfeo]

Sometimes I think originalists only get taken seriously because American culture is so Protestant-Biblicist, always striving to get back to the pure primitive truth of the original text, which is usually a pointless and misguided exercise. "Sovereign Citizens" and "Freemen on the Land" spouting their insane pseudolegal interpretations of the "common law" are infected with the same disease; they assume the common law is something eternal and unalterable like natural law, therefore discoverable in its original uncorrupted form, when in fact the common law is the most alterable legal system in the world and has been since before the Norman Conquest, any judge can alter it.

Originalism:

Originalism (or strict constructionism) refers to a school of thought concerning the interpretation of law, especially constitutional law, by a judge. The idea behind originalism is that a law must be interpreted from the viewpoints extant at the time of its inception and not those of the present day.

While not common in the rest of the Western world, originalism is popular with United States conservatives in general and conservative U.S. judges in particular. This can be best observed in the push for originalist judges to be nominated to positions where constitutional law cases will most likely be heard.

Why originalism?

Conservatives have grown fearful of conservative ideals losing their cultural place as a result of constitutional legal decisions that have been handed down in recent times due to modern interpretations of the constitution. They hope that if judges hold only to the original text and intentions of the laws when they were written, they may be able to better maintain their conservative ideals in society.

The general intent is to force originalist interpretations into all judicial decisions so as to limit the ability of judges to reinterpret the constitution to align with current societal thinking.

Problems with originalism

First Amendment

The First Amendment presents a real quandary for an originalist judge. The original interpretation, specifically, of the "free speech" is... particularly troublesome. Historically, at the time of the Bill of Rights' ratification, many states actively prohibited certain speech such as blasphemy and sedition. While the First Amendment did not apply to the states until its piecemeal expansion throughout the 20th century, state criminal prosecution of speech is problematic in the sense that originalism rests on the proposition that we have to get exactly into the heads of the Framers in order to understand what they produced.

Many of the states which prohibited the aforementioned types of speech also had provisions in their own state constitutions that protected freedom of speech. Thus, if the contemporary view at the time of the adoption of the Bill of Rights was that blasphemy, for example, was not speech, then judges today must not consider it as speech as envisioned by the First Amendment. Yay for liberty!

Moreover, around the time of the adoption of the Bill of Rights, there were also much broader traditions of press freedom as evidenced by writings of political leaders and the absence of prosecutions or civil actions for defamation in 18th century America.[1] Further, the Framers split on the issue of seditious libel (criticizing the government): some considered it protected to some point by the First Amendment, some did not, a dilemma evinced both by the opposition to the First Amendment by many of the Framers, and by the debate over the Alien & Sedition Acts of 1798. The issue was not definitely resolved until the 20th century, with the Holmesian revolution of First Amendment law. Holmes' interpretation of the First Amendment, and the liberalizing of the amendment, is a doctrine almost completely of judicial invention, created more in recognizance of what have become American values than what were American values, although it is consistent with the views of free expression widely expressed in 18th century America. This, clearly, is a great dilemma: supplemented by the fact that the text of the First Amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..."

... seems, textually, to compel a position more radical than most conservatives (and liberals) would take: absolute free speech[citation needed]. This conclusion is inescapable unless one admits that some texts - indeed, constitutional texts - require more nuanced analysis.

Eighth Amendment

The Eighth Amendment prohibits excessive bail fines and cruel and unusual punishment. Originalists have taken this to mean that it is okay to execute criminals since the death penalty was widespread in the 18th century. However, several other forms of punishment were also widespread at that time, such as public flogging or placing criminals in the stocks. Today, such punishments are considered very cruel and are very unusual (instead, we opt for the option of depriving people of their freedom for extended periods of time). Also, if one fails to adjust for inflation, the average bail fine today could be seen as excessive in the 18th century.

Ninth Amendment

The Ninth Amendment ensures that rights guaranteed in the Constitution are not the only rights that citizens can have. We don't have to explain what an originalist's take is on this.

Tenth Amendment

The Tenth Amendment reserves powers not granted to the federal government to the states. Although it is incredibly rare for a law to be struck down on the basis of the Tenth today[2] originalists and strict constructionists will often declare just about anything not specifically mentioned in the Constitution to be unconstitutional. See states' rights and the Tenther movement.

Criticism

"The government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today."

—Thurgood Marshall

A significant problem with originalism, specifically relating to the Constitution of the United States, is that a document written in the 18th century cannot perfectly relate to the United States of the 21st century, so interpretation will always be required. In modern times, many issues come up which simply have no analog from the 18th century, and thus we must seek to guide ourselves, rather than trying to ask how dead men's opinions on other matters might tell us what to do.

Interestingly, asking one of those dead men (were it possible) would likely result in a response along the lines of "We already told you what to do," and point to Article 5, which had been put into the Constitution to specifically address this problem. and would be used quite a bit during the lifetimes of those original authors.

Ironically, in order to determine the "original intent" of the documents that are actually law, originalist scholars must resort to analyzing and interpreting many contemporary documents and papers of the principals involved in the process.

Legal scholar John Ely, author of Democracy and Distrust,[3] believes that originalism involves a certain requirement of lying to oneself, in that originalists support the theory because of the belief that, if nothing else, it is at least objective, and limits judicial activism or departure from established law. However, Ely notes that, since there are multiple versions of "tradition" and "original intent," and indeed multiple interpretations of history, originalism is inherently incapable of being as objective as it promises.

Hypocrisy

Don't expect to hear this drumbeat from an originalist on issues in which their positions run counter to the original intent of the Framers. For example, it has been historically understood that appointments to the Cabinet and judiciary are largely the president's prerogative, and the Senate's role, in confirming the president's nominations, is to weed out unqualified candidates. The practice of refusing to confirm nominees for not having the same political inclinations as the Senate's majority party is fairly clearly not the Framers' intent, but that doesn't stop Senate Republicans from leaving a host of positions unfilled even though they're the ones who typically bleat about "original intent."

(Now that Trump is POTUS Senate Democrats are also obstructing appointments for obviously political reasons, but, then, they're not the ones bleating about "original intent.")

 

[Rightguide]

Sometimes I think originalists only get taken seriously because American culture is so Protestant-Biblicist, always striving to get back to the pure primitive truth of the original text, which is usually a pointless and misguided exercise. "Sovereign Citizens" and "Freemen on the Land" spouting their insane pseudolegal interpretations of the "common law" are infected with the same disease; they assume the common law is something eternal and unalterable like natural law, therefore discoverable in its original uncorrupted form, when in fact the common law is the most alterable legal system in the world and has been since before the Norman Conquest, any judge can alter it.

Originalism:

Bullshit. It's the law of the land, it constrains the government like no other, and in the interests of our liberty, we want it adhered to. We have an elected legislation to make law. Unlike Democrats who can't sell their radical agenda to the electorate effectively through the democratic process and want judges to legislate from the bench, we, on the other hand, don't want an imperial unelected judiciary doing it for us.

 

[KingOrfeo]

We have an elected legislation to make law. Unlike Democrats who can't sell their radical agenda to the electorate effectively through the democratic process and want judges to legislate from the bench, we, on the other hand, don't want an imperial unelected judiciary doing it for us.

Bear in mind that the Roberts Court in the case of Hobby Lobby or Citizens United was legislating from the bench, no less so than the Warren Court in Brown v. Board of Education or Miranda.

 

[Rightguide]

Bear in mind that the Roberts Court in the case of Hobby Lobby or Citizens United was legislating from the bench, no less so than the Warren Court in Brown v. Board of Education or Miranda.

Bullshit.

 

[4est_4est_Gump]

KingO suffers from the conceit outlined in, among places, The Last Knight of Liberalism of societal evolution. Because we have new technology, we have an evolved society. An evolved society therefore only has to listen to the voices of current, more in tune, voices and the lessons of the past can be ignored.



That conceit includes the understanding that human behavior can be abrogated with the right carrots and sticks...

 

[KingOrfeo]

Bullshit.

What's the difference, then?

 

[BotanyBoy]

Why originalism?

Conservatives have grown fearful of conservative ideals losing their cultural place as a result of constitutional legal decisions that have been handed down in recent times due to modern interpretations of the constitution.

It's not conservative ideals they fear losing their cultural place.

it's AMERICAN ideals, like individualism, liberty and the freedom to pursue happiness that they fear losing due to LEFTIST interpretations of the Constitution.

People who seem to think freedom is a godlike government micromanaging every waking moment of every citizens life, telling them what they can do to make a living and then taking the super majority of that living away from the people for the privilege.

 

[Rightguide]

KingO suffers from the conceit outlined in, among places, The Last Knight of Liberalism of societal evolution. Because we have new technology, we have an evolved society. An evolved society therefore only has to listen to the voices of current, more in tune, voices and the lessons of the past can be ignored.



That conceit includes the understanding that human behavior can be abrogated with the right carrots and sticks...

Eternal truths, revealed to Man by the great crucible of his experience, set to parchment by ink and the hand of genius, are to be cast aside now for our collective trust in a new exploration into the old dark corridors of tyranny.

Maybe it's time for man to be trodden upon again, to bleed, to lament his plight, and to suffer through millennia the arrival of a new enlightenment based on the trove of wisdom collected from his past and then sow again the seeds of liberty.

 

[Rightguide]

What's the difference, then?

The black letter of the law.

 

[KingOrfeo]

Bullshit. It's the law of the land, it constrains the government like no other, and in the interests of our liberty, we want it adhered to.

Adhering to the Constitution does not necessarily mean interpreting it in the exact same way 18th Century jurists would have.

 

[KingOrfeo]

The black letter of the law.

That's no answer. How did blackletter law determine the Roberts Court's rulings any more than the Warren Court's rulings? And why the black letter anyway? That has always been a dubious concept in common-law jurisdictions.

If the legal systems of Europe based on Roman law are like the French language, all codified by some Academy and with, in principle, a right answer to every stylistic question, the common law of England grew up rather like the English language. Some authorities were more prestigious than others and there were general points on which everyone could agree, but the common law, like the language of the people who lived under it, allowed for numerous decision-makers and incremental innovations, which might survive in practice or be rejected. Judges made the common law, basing their opinions on the opinions of other judges, citing principles so ancient that the memory of man ran not to the contrary. Even today, when most important areas of law have been summarized in civil and criminal codes, still the codes usually just adopt one or another set of common law rules. And when judges in common law countries interpret those statutes, they look first to the opinions of other judges rather than at the text itself.

For judges in England and the United States before the middle of the last century, the idea that the same "common law" still somehow applied in both countries, and indeed in every state of the American union individually, did not pose a conceptual problem. When the American colonies removed themselves from the jurisdiction of the British Parliament, it never occurred to them that they might be removing themselves from the sway of the common law. Parliament had not made the common law, though of course it had influenced the common law's development throughout history. The common law was never thought to be coincident with the natural law, but the English jurists tended to assume that it had been informed by the natural law. Judges, guided by right reason, could develop existing common law rules to better conform to the natural law. This was how the judge Lord Mansfield finally abolished slavery in England in the late eighteenth century (in the 1830s parliament got around to outlawing it in the colonies). The judges who did this sort of thing said they were not making law, but discovering it. The common law was complicated and often obscure, it rules sometimes manifestly unjust. However, lawyers trained in the common law tradition seemed to always have at the back of their minds the assumption that the common law was the real law. What parliaments and legislatures might decree from time to time would of course be obeyed, but the statutory law that tried to change common law was strictly and suspiciously construed.

 

[KingOrfeo]

Eternal truths, revealed to Man by the great crucible of his experience . . .

. . . are not necessarily eternal truths, since the great crucible of his experience has revealed to Man many different and incompatible "eternal truths" at different times.

 

[Rightguide]

Adhering to the Constitution does not necessarily mean interpreting it in the exact same way 18th Century jurists would have.

You asked about originalism, not its modification.

 

[KingOrfeo]

You asked about originalism, not its modification.

What you posted about "adhering to" the Constitution is no defense of orginalism, it merely begs the question.

 

[4est_4est_Gump]

Eternal truths, revealed to Man by the great crucible of his experience, set to parchment by ink and the hand of genius, are to be cast aside now for our collective trust in a new exploration into the old dark corridors of tyranny.

Maybe it's time for man to be trodden upon again, to bleed, to lament his plight, and to suffer through millennia the arrival of a new enlightenment based on the trove of wisdom collected from his past and then sow again the seeds of liberty.

I love the style of this post...


It could have been written by an "originalist."

 

[Adre]

It's not conservative ideals they fear losing their cultural place.

it's AMERICAN ideals, like individualism, liberty and the freedom to pursue happiness that they fear losing due to LEFTIST interpretations of the Constitution.

People who seem to think freedom is a godlike government micromanaging every waking moment of every citizens life, telling them what they can do to make a living and then taking the super majority of that living away from the people for the privilege.

I'm not familiar with the "freedom" you describe, or the country. I chose the living I pursued, and paid the government roughly twenty percent to provide for defense, highways, postal service, potable water, and a few other goodies, some necessary, some not. I pretty much go where I choose, do what I choose, live how I choose. What country are you in where godlike powers are forcing you into a life not of your choosing?

 

[Rightguide]

. . . are not necessarily eternal truths, since the great crucible of his experience has revealed to Man many different and incompatible "eternal truths" at different times.

The enlightenment I speak of is the intellectual evolution of a framework ideas based on human experience, the tried and true, not a new set of theoretical justifications for a failed tyranny of the past with a new name.

 

[Rightguide]

I love the style of this post...


It could have been written by an "originalist."

Thank you. I have to admit to being an originalist. One of our limited few still willing to speak in its defense.

 

[KingOrfeo]

The enlightenment I speak of is the intellectual evolution of a framework ideas based on human experience, the tried and true, not a new set of theoretical justifications for a failed tyranny of the past with a new name.

Neither is really relevant to this discussion. The Warren Court's "judicial activism" had nothing to do with theoretical justifications for tyranny, but for freedom and equality; and intellectual evolution did not end in the 18th Century.

 

[BotanyBoy]

I'm not familiar with the "freedom" you describe,

That's because the left has been assaulting it for quite some time now.

It's called capitalism and liberalism, something the US used to be all about.

I chose the living I pursued,

That's nice, that's not really an option for most though.

Most are stuck being someone else's bitch for a set price, usually a rather shitty one.

and paid the government roughly twenty percent to provide for defense, highways, postal service, potable water, and a few other goodies, some necessary, some not. I pretty much go where I choose, do what I choose, live how I choose.

Because we aren't anywhere near as left as people like KO and I think you for that matter want us to be.

What country are you in where godlike powers are forcing you into a life not of your choosing?

I'm not, and never claimed to be in a country like that. But there are those who seek to turn this country into one like that though.....all the Sanders fans, Hillary fans too and most of the GOP fans as well.

 

[4est_4est_Gump]

20%?


Double the tithe of the church?

 

[KingOrfeo]

It's not conservative ideals they fear losing their cultural place.

it's AMERICAN ideals, like individualism, liberty and the freedom to pursue happiness that they fear losing due to LEFTIST interpretations of the Constitution.

People who seem to think freedom is a godlike government micromanaging every waking moment of every citizens life, telling them what they can do to make a living and then taking the super majority of that living away from the people for the privilege.

That's because the left has been assaulting it for quite some time now.

It's called capitalism and liberalism, something the US used to be all about.



That's nice, that's not really an option for most though.



Because we aren't anywhere near as left as people like KO and I think you for that matter want us to be.



I'm not, and never claimed to be in a country like that. But there are those who seek to turn this country into one like that though.....all the Sanders fans, Hillary fans too and most of the GOP fans as well.

Well, that's all rather beside the point. Even if it true, it would amount to no more than a pragmatic argument for originalism, and that sort of pragmatism goes clean against originalist thinking; they defend their interpretation of the Constitution not because it is best one for us to use but because it is in their minds the only true and legitimate interpretation.

 

[BotanyBoy]

Well, that's all rather beside the point.

Only because you're desperate for the US to be far far.....far far far more left than it actually is.

Even if it true, it would amount to no more than a pragmatic argument for originalism, and that sort of pragmatism goes clean against originalist thinking;

It's not at all against originalist thinking.

they defend their interpretation of the Constitution not because it is best one for us to use

I never said it was the best one to use or that was their reasoning.

but because it is in their minds the only true and legitimate interpretation.

Exactly. Because USA....not USSA.

 

[Rightguide]

Neither is really relevant to this discussion. The Warren Court's "judicial activism" had nothing to do with theoretical justifications for tyranny, but for freedom and equality; and intellectual evolution did not end in the 18th Century.

Where have you been? The judiciary has routinely expanded the power and scope of government from the very beginning, the Judiciary in particular. A good example is the recent court rulings against the travel ban. Willfully inserting itself into the "plenary" powers of the Congress and the Executive where it has no constitutional role. Over 228 years it has construed the Constitution into a form the 13 colonies would never have ratified.

 

[Christobal]

Need I bring up how how the Federal Interstate Commerce law has been used to erode state rights? It seems to be applied to anything. Originalists fear a powerful Federal government. From what I seen that is a proper thought.