Originalism

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ORIGINALISM

"Originalism" is a term used to describe the view that judicial decisions regarding the Constitution must be based on the original intent of those who participated in the framing and enactment of the original Constitution and later amendments. For example, originalists regard the issue of the constitutional validity of the death penalty as easily resolved by the explicit references in the Fifth and Fourteenth Amendments to the deliberate taking of life by government, indicating that the Constitution expressly contemplates the imposition of the death penalty. The Fifth Amendment states that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, … put in jeopardy of life or limb; … be deprived of life, liberty, or property …" and the fourteenth amendment, likewise guarantees that "[n]o state shall … deprive any person of life, liberty, or property.…"

Originalists justify their view on the grounds that focusing on original intent both limits the intrusion of the subjective political values of judges in constitutional decisions and gives due respect to democratic processes. Originalists argue that the intent of the Framers will sometimes accord with the personal views of judges and sometimes not. Application of this intent, therefore, will limit the ability of judges to impose their personal views on various issues upon the nation. Originalists also point out that the Constitution contains democratic amendment procedures and that the use of criteria other than original intent would enable judges to subvert both the democratic processes that led to the enactment of particular constitutional provisions and the democratic processes that provide for amendments. Finally, originalists argue that originalism is the only theory that can legitimate the institution of judicial review, which is a method of ensuring that the Constitution, as a superior law adopted by the people, constrains all organs of government, including the courts. marbury v. madison, 5 U.S. (1 Cranch) 137, 179–180 (1803).

Critics of originalism generally rely on two lines of attack. The first line is that the intent of the Framers is difficult and often impossible to determine. As Justice william j. brennan said: "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions." Doubt as to our present ability to learn the intent of the Framers fuels the suspicion among observers more cynical than Justice Brennan that lip service to supposed evidence of original intent is actually a façsade behind which judges weave their subjective political values into the fabric of constitutional law. Second, critics argue that our concepts of civilized rule constantly evolve and that originalism affords too niggardly a protection for profoundly important rights. Again, Justice Brennan put the matter succinctly in describing his position on the constitutionality of the death penalty: "Because we are the last word on the meaning of the Constitution, our views must be subject to revision over time, or the Constitution falls captive, again, to the anachronistic views of long-gone generations." He thus felt free to argue that the Eighth Amendment's prohibition on cruel and unusual punishment (applicable to the states through the Fourteenth Amendment) prohibits the death penalty notwithstanding the specific references to the death penalty in the Fifth Amendment, which was part of the bill of rights package that included the Eighth, and the more general reference to the death penalty in the Fourteenth Amendment itself.

In response to the first criticism—that the intent of the Framers regarding contemporary constitutional litigation is not ascertainable—originalists divide into what might be called an "intentionalist" school of thought and an "interpretivist" school of thought.

Members of the intentionalist school search for the actual state of mind of the Framers at the pertinent time, based on the language of the constitutional text, preconstitutional precedents, sometimes involving British law, or explicit legislative history. In their view, a judicial decision that is not based on explicit constitutional language or direct evidence of an actual intent held by the Framers is an illegitimate decision. The intentionalist school is best illustrated by the work of Raoul Berger. Berger has thus concluded that brown v. board of education of topeka (1954) was an illegitimate decision because of the lack of an explicit reference to desegregation in the Fourteenth Amendment and because of evidence that some of the Framers stated during the framing and ratification period that public, segregated, educational institutions would pass constitutional muster under the Fourteenth Amendment. He has also denied the existence of an executive privilege because of the failure of the Constitution to mention such a privilege and the lack of precedent in colonial or preexisting law.

interpretivism, on the other hand, insists only that constitutional decisions be, in Dean John Hart Ely's (not himself an originalist) words, "in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete reference will not be found there—because the situation is not likely to have been foreseen—is generally common ground." For interpretivists, the name originalism is thus a bit of a misnomer, at least to the extent that it suggests that express language of the Constitution or evidence of the actual state of mind of the Framers are the sole legitimate criteria for constitutional adjudication.

Interpretivists take the view that constitutional interpretation must apply the conventional legal criteria used by lawyers in interpreting other legal texts. As Judge Robert H. Bork, certainly the most noted originalist, has stated, the search for original intent is "the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court." These criteria, of course, are designed to determine the purposes of the text. Democratic processes demand that statutory interpretation be governed by legislative intent. Contract law stresses the purposes of the parties, estate law stresses the intent of the testator, and the doctrine of stare decisis stresses the meaning of prior decisions. Drawing on an analogy between these fields of law and constitutional law, interpretivists believe that constitutional law must stress the meaning of the document, which for them, as Professor Henry Monaghan has stated, is not so much the state of mind of the Framers as the " public understanding" of what particular constitutional provisions were intended to achieve.

Constitutional adjudication is thus for interpretivists much more than a search for express language, colonial or English precedent, or direct evidence of intent (or lack thereof) that produces a mechanical result in each case. Language or other direct evidence of intent is of course important in their view and dispositive when, as in the case of the death penalty, explicit consideration was given to the particular issue. Certainly, they would argue, the fact that the Fifth and Fourteenth Amendments prohibit imposition of the death penalty without due process of law is inconsistent with a judicial decision holding that the death penalty violates the Constitution in any and all circumstances.

Beyond such cases in which direct evidence of intent, such as language in the Constitution or legislative history, is dispositive, the interpretive view of originalism provides considerable scope for the exercise of judgment and for disagreement. This is not surprising because the conventional legal criteria applied by lawyers in interpreting statutes, contracts, or other legal documents extend well beyond language or express intent. Legal documents frequently provide evidence of only a very general purposebb that courts must adapt to the circumstances of each case. Courts legitimately, therefore, read into statutes commands or exceptions to commands that have no basis in the express statutory language, but are believed necessary to effectuate the overall legislative purpose. For example, in Reves v. Ernst Young (1990), the Supreme Court held that the phrase "any note" in the definitional section of the Securities Exchange Act of 1934 does not literally mean "any note," but must be understood in terms of what Congress sought to accomplish by enacting the statute; and in Haggar Co. v. Helvering (1940), the Court held in light of the statutory purpose that "[a] timely amended return is as much a "first return' … as is a single return filed by the taxpayer.…" Courts must do this because of the inability of drafters to anticipate the myriad circumstances in which the meaning of the statute must be divined, obvious drafting errors, or changes in the relevant industrial practice or technology. Similarly, courts may adapt contractual language to changed circumstances or impose duties, such as the duty to act in good faith where the contract accords considerable discretion to one party, notwithstanding the lack of express contractual language. Application of this mode of analysis to constitutional interpretation is essential because constitutional language is more general than most statutes and private contracts, and the interstices thus tend to be considerably wider.

Interpretivists believe that the Framers could not foresee all of the circumstances to which particular constitutional provisions might be applied and that judges must attempt to adapt what evidence of purpose there is to changed circumstances. Many interpretivists thus believe that contrary to Raoul Berger's conclusion Brown was fully legitimate. The interpretivists argue that the specific expectations of those Framers who stated that segregated education would survive the enactment of the Fourteenth Amendment were not faced with direct evidence that segregated educational systems were palpably inconsistent with the amendment's core purpose of relieving blacks of obstacles imposed by law. The interpretivist school thus takes into account the very limited experience these Framers had with both segregated schools and public education itself and feels free to override their particularized expectations in order to satisfy the basic philosophy of the equal protection clause.

Similarly, the interpretivist school is willing to adapt constitutional provisions to other changed circumstances. For example, in Ollman v. Evans (D.C. Circuit, 1984), Judge Bork wrote with regard to the interplay of the First Amendment and the law of libel :

We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the first amendment. But we do know they gave into the judges' keeping the value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the value at the core of these clauses. Perhaps the framers did not envision libel actions as a major threat to that freedom.… But if, over time, the libel action evolves so that it becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines? … It is no different to refine and evolve doctrine here, so long as one is faithful to the basic meaning of the amendment, than it is to adapt the fourth amendment to take account of electronic means of surveillance, the commerce clause to adjust to interstate motor carriage, or the first amendment to encompass the electronic media.…

Moreover, interpretivists feel free to draw what Professor Charles L. Black has called inferences "from the structures and relationships created by the Constitution." Again, this interpretive method is commonly used by lawyers and judges to interpret legal texts. The Supreme Court's opinions regarding private actions under the securities laws brim with inferences as to the scope and content of one remedial provision drawn from the scope and content of other remedial provisions. Interpretation of contracts also often requires courts to infer obligations from the structure of the parties' relationship.

Because the Constitution established a nation to be governed by a designated governmental structure, this interpretive method is particularly suited to constitutional law. Black has thus argued that an inference from structure reconciles the Supreme Court's scrutiny of state regulation claimed to discriminate against interstate commerce with the absence in the constitutional texts of any explicit prohibition of such state conduct; the freedom of commerce from local discrimination is implicit in the economic structure of nationhood and the fact that "we are one people, commercially as otherwise.…" One can similarly infer some form of executive, legislative, or judicial privilege from the Constitution's separation of powers. Were one branch routinely to compel disclosure of the internal decisional consultations of another branch, the latter branch might find its decision making skewed and the exercise of its legitimate powers subject to substantial encroachment by the other branch. This result would be contrary to the Constitution's purpose of establishing separate and independent branches of government.

Drawing inferences from structure and relationships is thus a legitimate method of determining the intent of the Framers. This intent, of course, is not the Framers' conscious thoughts or expectations, but the adaptation of the general principle they sought to establish to particular factual situations. Indeed, unless a judge is willing to draw such inferences, the intent of the Framers may go unfulfilled. For example, as Black has argued, even if the First Amendment had not been adopted, a judge might legitimately conclude that the various provisions for free elections for federal office could not fulfill their purpose if either federal or state governments were free to prohibit speeches by candidates for federal office or their supporters. To effectuate the purposes of the electoral provisions—to effectuate original intent—some form of protection for political speech similar to First Amendment doctrine would have to be fashioned by courts.

Having concluded that neither the constitutional text, legislative history, nor inferences from structures and relationships address a claim of a right, originalists believe that courts should not recognize that right. Originalists thus typically argue that roe v. wade (1973) was incorrectly decided because there is no evidence that either the generalized right to privacy relied on in the decision's brief doctrinal discussion or the specific issue of abortion has even been addressed by any constitutional provision. This view is fortified in the minds of originalists by the seeming disarray among Wade 's defenders as to the doctrinal basis for the decision, which ranges from an implied right of privacy protecting individual autonomy in sexual or procreative matters to the First Amendment's religion clause, to the equal protection clause, and to the thirteenth amendment's prohibition on involuntary servitude.

In some cases, evidence of purpose or inferences drawn from structures or relationships may yield no guidance for interpretation of a particular constitutional provision. In such a case, originalists believe that judges should accord no judicially enforceable meaning to that provision because the only available criteria for establishing that meaning are the judiciary's subjective views of what is good constitutional policy. Originalists thus typically view the ninth amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people") or the privileges and immunities clause of the Fourteenth Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") as such clauses. The language of these provisions does not make any cogent choice between alternative legal rules, and their history appears to lack any evidence of judicially enforceable purpose. This being the case, originalist theory holds that judges should not undertake to attribute meaning to these provisions. To the argument that the Framers may have intended that courts undertake the task of giving meaning to such clauses, originalists generally answer that there is nothing in the constitutional record to suggest that such substantial power was to be accorded to the judiciary.

On one issue—adherence to precedent—originalist theory is unclear. As the preceding discussion has indicated, the interpretive school of originalism calls simply for the application of conventional legal criteria to constitutional interpretation. In nonconstitutional areas, such criteria certainly include judicial precedent. Thus, one does not infrequently encounter statutes whose interpretation over time seems to have departed rather far from their language or legislative purpose. The doctrine of stare decisis, however, generally precludes courts from undoing settled interpretations. Similarly, contractual clauses are used by lawyers to achieve particular purposes, even though the purposes and the particular language seem at best distantly related. Lawyers continue to use them, however, because courts have previously attributed to these clauses the purposes in question.

One would therefore expect interpretivists at least to put a heavy weight on precedent and to overrule precedent only infrequently. However, this expectation clashes with the argument that a reluctance to overrule precedent gives an advantage to those who would base constitutional decisions on criteria deemed by originalists to be invalid. Unless originalists are willing to overrule precedent, it can be argued, the Constitution will, over time, spawn a body of law considerably at odds with original intent. Indeed, Professor Monaghan has pointed out that much of present constitutional law "is at variance with what we know of the original understanding."

With regard to the criticism that originalism affords inadequate protection for profoundly important rights, originalists rarely answer with a denial. Originalism does not claim to offer a comprehensive formula for civilized rule or an optimal set of individual rights. Rather, it purports to offer the correct role for the judiciary in a democratic society. It posits that lodging the ultimate decision-making power of the state in a nonelected branch of government must ultimately subordinate the elected branches and subvert democratic rule itself. It denies the existence of a natural law that can be discovered and applied by judges in a manner consistent with democratic principles. Originalists see in the various attempts by scholars to fashion nonoriginalist criteria for constitutional decision making faintly disguised political movements seeking to achieve in court what they have been unable to secure in elections.

At bottom, then, originalism is based on the view that judges must confine their role to the application and enforcement of principles that have become constitutional law through the adoption of the Constitution or the amendment of the Constitution itself. Originalism is neutral with regard to particular rights in the sense that a persuasive argument that a right is necessary to civilized rule will not carry the day in court without an anchoring of that argument in the Constitution; nevertheless, originalism is not a nihilistic philosophy. Rather, it prizes democratic rule and demands that restrictions on this rule be the result of the adoption and amendment procedures set out in the Constitution. Originalists thus view the orderly democratic procedures of the Constitution as superior to claims of substantive rights that have not been adopted through such procedures. For originalists, rule by judiciary is not the road to civilized rule or optimal individual rights.

The future of originalism is unclear. The Senate's failure to confirm Judge Bork was based in part on the criticisms of originalism previously described. Many originalists are puzzled at the recent controversy over their view because many of their critics seem not to quarrel with the application of conventional legal criteria to other legal texts such as statutes or contracts. Moreover, originalists view their methodology as politically neutral. Nevertheless, the Bork controversy illustrated the difficulty of defending originalism in a political context. Because originalists do not believe that the Constitution enshrines every right necessary to avoid every wrong—including serious wrongs—originalists can be mistakenly perceived as favoring those wrongs. Judge Bork was thus depicted by some as favoring poll taxes because he had written that such taxes did not violate the equal protection clause.

Originalists fear that the difficulty of defending their position politically will fundamentally alter the American system of government. In their view, judicial nominations and Senate confirmation proceedings may, in the worst-case scenario, become highly politicized in the sense that nominees may be required to make commitments about future decisions equivalent to political promises. These promises will be made to appease groups that seek to constitutionalize their claims and have sufficient political power to extract such promises. If so, originalists fear, constitutional law will become an incoherent body of rules having no connection with the document and resulting from random constellations of political forces and the idiosyncratic views of particular Supreme Court Justices.

Ralph K. Winter
(1992)