CNN published this, so I assume they must think it's plausible.
I figured it would say things like, "It could force the transfer of Social Security and Medicare to the states, as there is no obvious Constitutional warrant for the Federal government to run things like that." Or "Great Society Programs." Or "the EPA, already under threat from the Trump administration."
What it says instead is that originalism is about taking rights away from minority groups. That's either a complete misunderstanding of what the philosophy is about, or else it's a willful slander of the first order. The rights of minority groups are protected by explicit Constitutional language. Insisting on the original understanding of, say, the 14th Amendment is a way of preventing rights from getting watered down.
So too with originalism pointed toward the Bill of Rights. The way that rights get washed away is very often by sliding words into new meanings. Originalism is a stronghold against that move: it insists that, if you want to strip away the right, you have to actually go through the Article V process. Nothing else but that process will do, ensuring that decisions to alter basic rights must enjoy very broad public support.
My guess is that the misunderstanding -- if it is that -- is created by the reality that the original Founders didn't trust everyone equally, especially with what we have come to call "voting rights." However, that misses the point: the Founders didn't consider voting to be a right in the same way that free exercise of religion or free speech was a right. They thought that citizenship was a kind of office. Like any office, it should be filled only by people who have shown they are qualified for it. That's why they imposed things like property tests, which demonstrated 'skin in the game' as well as a kind of practical economic independence. The last was important because they doubted that those who were wholly dependent on someone else could really reason independently of that interest, which meant that giving votes to servants (say) would really mean giving extra votes to the landlord.
Originalism does not threaten to restore that idea of citizenship, because the concept of voting rights was created through explicit Constitutional actions such as the ratification of the 15th Amendment. An originalist couldn't rule in favor of a return to the earlier conception of citizenship even if he or she thought it was a better idea, just because of their commitment to originalism.
This should be better understood. Originalism is the only mode of interpretation that should be supported in a candidate for the Supreme Court. Otherwise, the court exists not to apply the laws chosen by the People in accordance with the Constitution, but to make new laws and alter the Constitution. That is no proper role for the Supreme Court, not even when they vote unanimously.
9 comments:
In your first paragraph, I came to the same conclusion where the misunderstanding came from. It is not a misinterpretation, it is mere laziness. "Well, the founders owned slaves and women couldn't vote, so that must mean, y'know, that the Constitution is unreliable on that score and only protects rich white guys."
The idea of citizenship as an office is long gone, but it could do with some revival.
I don't see how you could have put it any better. This helps me think through what's going on with the current confused public debate about the Supreme Court.
It is not a misinterpretation, it is mere laziness.
It's not laziness. In her own direct examination of Gorsuch, Senator Klobuchar (D, MN) in pushing her anti-originalism meme, dragged out the old beef that wherever the Constitution says "men," it must mean males only. Never mind that in Johnson's Dictionary, contemporaneous with the authoring of the Constitution, the first definition of "man" is human being. Of course Klobuchar, responsible Senator that she is, did her research for this hearing carefully, and so she knew this.
Originalism is the only mode of interpretation that should be supported in a candidate for the Supreme Court.
Not at all. In fact, it's only second best. Textualism is better, relying as it does solely on the plain meaning of the words of the Constitution (and of the law, where that's what's before a court), a meaning easily accessible from the dictionaries of the time. Originalism has too much mind reading involved, dependent as it is on notes, diaries, and the like generated (or not) during the development of the Constitution or the law, stuff that may or may not still exist, and will do so to a decreasing degree as history loses stuff to time--and so mind reading. Mind reading with textualism begins and ends with the dictionary.
Eric Hines
Eric Hines is exactly right. The superior approach is that of textual interpretation consistent with the context of the statute or constitutional provision in question. When an issue regarding a statute arises it is the words of that statue that matter, not the nebulous intent of any one of the many legislators that voted in favor of the law. It is the words of the statute that passed both houses of congress and were signed into law by the president, not the subjective intent of the legislators. To quote Scalia, "What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."
I would tend to say that Textualism, as you present it, is a subset of originalism. Insofar as it looks to 'the dictionaries of the time,' and not to dictionaries per se, it is a form of originalism.
I see it as a 2-step approach. Where the text is clear in a given situation, textualism. However, there are cases where the application of the letter of the law is not clear. In that case, originalism becomes important.
I am skeptical of picking one dictionary and interpreting our Constitution solely through it.
First, there were other dictionaries at the time. Do we have any reason to pick Johnson's over theirs? Why not use several and compare? Did the Founders stick solely to Johnson's?
Also, which edition of Johnson's? It was used for a century or more. Where there are differences in editions, which should we go with? Would later editions be more correct, or by getting away from the time of the Founding be anachronistic?
I haven't looked at Johnson's dictionary (although after Eric's endorsement of it and a bit of reading, I think I would like to) so how well does it handle technical uses of the language? Most dictionaries only document common usage and often fail to include technical usage such as legal definitions of terms.
Johnson, as I understand it, pretty much single-handedly wrote his dictionary, so it seems like it would inevitably express his biases of location, station, etc. Did he do anything to discover and document American usage? Surely there were already differences between American and British English by this time.
Grim makes a good point about 'dictionaries of the time.' Does relying on a dictionary mean we need different dictionaries as amendments and laws are passed over the centuries?
Johnson's Dictionary was prominent in the colonies at the time, just as Webster's and American Heritage are prominent today. Sheridan's Dictionary also was prominent in the colonies at the time; the two are virtual carbon copies of each other, an artifact of both the looser copyright laws of the time and the fact that words have particular definitions.
There's not a lot of reason to choose one over the other; the results would be the same. Just as there's little reason today to choose American Heritage or Webster's, one over the other, on the basis of definitions. American Heritage has, IMNSHO, a better appendix on proto-indoeuropean language evolution. That's the sort of thing, though, along with differing depths of etiologies provided with individual word definitions, that are the meaningful discriminants among dictionaries: which one provides better or more pleasing additional information.
Johnson's 10th edition is the one I use; it was published in 1792. That suggests that the 9th edition was contemporaneous with the writing. Sheridan's 2nd edition was published in 1789.
A generation or so later, Webster produced the first American dictionary; the definitions hadn't changed much; Webster's claim to fame in this context was his Americanization of spelling. Indeed, comparing today's American Heritage with Johnson's indicates very little change in meanings. It's only been 200 years, after all; definitions don't change all that much over so little time.
Does relying on a dictionary mean we need different dictionaries as amendments and laws are passed over the centuries?
In the vast majority of cases, changes in word meaning between then and now (two of those centuries' difference) are so trivial as to be meaningless. It's the principles espoused that matter: is right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures agnostic enough technologically to obviate a need for a specific wire-tapping law, or to govern by itself the idea of no presumption of privacy in the context of 20th century wireless telephones and their connection to a base station back in the house?
The search for umbras and penumbras, and the finding of such hallucinations, have little to do with word definitions and much to do with a judge's personal ideology.
In those rare cases where such subtleties matter, of course it's necessary to reach for the dictionary of the time. If that indicates that the meaning now gives a societally wrong answer, well, as I've said before, that's what Art V is for and the job of We the People. Not judges.
how well does it handle technical uses of the language? Most dictionaries only document common usage and often fail to include technical usage such as legal definitions of terms.
"Legal definitions" have relevance only in the mechanics of court procedure, not in the meaning of the Constitution or any particular statute. Or to allow judges and lawyers to sound cute: an appellate court, for instance, might take some action sua sponte instead of on its own initiative. Regarding the meaning of the Constitution or any particular statute, the Supreme Court has already ruled what had been thought obviously understood (except by a few especially egregious fee-seeking lawyers, hence the need for the ruling), that courts are bound by the plain meaning of the words. No one is bound by to the arcane jargon of a special guild. An ordinary dictionary is the canon dictionary for understanding any law.
Eric Hines
Thank you for the reply.
Maybe you are right, but I've done two master's degrees that required in-depth textual analysis of historical documents, and I am deeply unimpressed by the ability of dictionaries to lead us to a full understanding of a historical document. Repeatedly I've found that I had to look at the historical context of the document to make full sense of it.
On the other hand, I've never done this with a document like the Constitution. Maybe it is really different. But I'm skeptical, and I would need to know more to decide what I think.
That's why they imposed things like property tests, which demonstrated 'skin in the game' as well as a kind of practical economic independence. The last was important because they doubted that those who were wholly dependent on someone else could really reason independently of that interest, which meant that giving votes to servants (say) would really mean giving extra votes to the landlord.
Andrew Jackson thought differently and experimented with it a bit by giving unlanded "whites" the vote.
Of course the US Civil War proved that slaves who gave votes to the slave lords and whites who fought wars based upon the orders of their employers, weren't particularly immune to gaming the system.
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