Philosopher views

THE CONSTITUTION’S TEXT REFUTES ORIGINALISM

1. “ORIGINAL INTENT” CONSTITUTIONAL INTERPRETATIONS LACK TEXTUAL GROUNDING

Laurence H. Tribe, Tyler Professor of Constitutional Law at Harvard University Law School, and Michael C. Dorf, Professor of Law at Columbia Law School, On Reading the Constitution, 1991, p. 10-11.

Another proponent of locating the ultimate interpretive authority in the Framers' intent, Raoul Berger, has argued that the original intent of the Framers is "as good as written into the text" of the Constitution. That viewpoint became something of a manifesto for former Attorney General Meese, who often spoke and wrote of a "jurisprudence of original intent. But consider the practical difficulties of applying such a theory when, for example, Berger looks at the Fourteenth Amendment, a text proposed to the states by Congress and voted on by no fewer than thirty-seven state legislatures. Berger purports to know that the original purpose of the Fourteenth Amendment was far less noble than some of us have come to believe; the primary intended beneficiaries of the Fourteenth Amendment, he tries to show, were racist white Republicans. And therefore, he says, giving the Fourteenth Amendment the meaning that the Supreme Court has given it in modern times is ahistorical and illegitimate. Let us suppose that Berger's history is correct—that one really could make that confident an assertion about something as fleeting and elusive as collective intent. In fact, suppose that the real purpose of those who wrote the Fourteenth Amendment was to deny equality to the freed slaves to whatever degree would prove politically possible. That is, suppose the Fourteenth Amendment was a palliative designed to preserve peace, but that the reason for not writing so racist a credo into the Constitution's text was a sense that some of the Amendment's support might not withstand such candor. Even if this supposition were historically correct, and even if you believed that original intent should control constitutional interpretation, it still does not follow that it would be legitimate to read the Fourteenth Amendment to effect the hidden racist agenda. Why not? For one reason, because the Fourteenth Amendment became "part of th[e] Constitution" in accord with Article V—the provision of the Constitution that describes how amendments become law. They become law when they are ratified through a specified process by a certain number of states. There is nothing in Article V about ratifying the secret, hidden, and unenacted intentions, specific wishes, or concrete expectations of a group of people who may have been involved in the process of enacting a constitutional guarantee.

Eric J. Segall, Associate Professor of Law at Georgia State College of the Law, Constitutional Commentary, Fall 1998, 15 Const. Commentary 411, p. 424.

So, Dworkin asks, why does the "resolute text-reader, dictionary-minder, expectation scorner," change his mind when it comes to the "most fundamental American statute of them all?" Dworkin hypothesized that a true textualist-originalist would conclude that many of the provisions of the Bill of Rights were written so generally and vaguely that the Framers must have intended them to be interpreted over time. Had the Framers intended these provisions to have a fixed meaning, they would have written them differently, more specifically. Of course, this generally means that judges will have great discretion to interpret those phrases, which explains why many modern-day conservatives, like Justice Scalia, reject semantic originalism - it affords judges too much power. But Scalia has already rejected looking at the expectations of the Framers at the expense of the text. Scalia's textualism-originalism, therefore, is selective and inconsistent. A true originalist, according to Dworkin, would interpret the Constitution the way the Framers intended - as embodying broad principles that judges must apply to differing factual situations by employing independent moral judgment. This "magnet of political morality is the strongest force in jurisprudence," and the Constitution reflects that principle in its broad provisions protecting liberty and equality.

ORIGINALISM DOES NOT PREVENT JUDICIAL ACTIVISM

1. ORIGINALISM DOES NOT PREVENT JUDICIAL INTERVENTION IN POLITICAL AFFAIRS

Earl M. Maltz, Distinguished Professor of Law at Rutgers University School of Law, RETHINKING CONSTITUTIONAL LAW: ORIGINALISM, INTERVENTIONISM, AND THE POLITICS OF JUDICIAL REVIEW, 1994, p. 19.

Most discussions of the efficacy of an originalist approach to judicial review have been shaped by the premise that originalism is synonymous with noninterventionism. As Robert W. Bennett has noted, this assumption is fatally flawed.'" Admittedly, from an originalist perspective the Tenth Amendment does operate as an important restraint on the freedom of action of the federal courts—a point whose significance will be explored later in greater detail. Adoption of originalism does not, however, amount to a complete renunciation of judicial interventionism. Some of the interventionism required by a pure originalist analysis would no doubt be applauded even by left/center constitutional theorists. For example, even under the narrowest view of the original understanding of the First Amendment and the Reconstruction amendments, the Court would be required to provide some protection for freedom of speech and the rights of racial minorities, respectively. The degree of interventionism mandated by originalism on these matters would no doubt be insufficient to satisfy the desires of left/center theorists, but the results would nonetheless be clearly distinguishable from a stringently noninterventionist regime. Further, originalist analysis would support interventionism in some areas where left/center theorists have typically been strong advocates of judicial deference. Among the best examples are such provisions as the contracts clause and the takings clause of the Fifth Amendment, which were plainly understood to render substantial protection for the rights of property holders and other members of the wealthier classes.

Richard A. Posner, Judge for the United States Court of Appeals for the Seventh Circuit and Senior Lecturer at University of Chicago Law School, Stanford Law Review, July 1990, 42 Stan. L. Rev. 1365, p. 1372.

Although Bork derides scholars who try to found constitutional doctrine on moral philosophy, it should be apparent by now that he is himself under the sway of a moral philosopher. His name is Hobbes, and he too thought the only source of political legitimacy was a contract among people who died long ago. This may have been a progressive idea in an era when kings claimed to rule by divine right, but it is an incomplete theory of the legitimacy of the modern Supreme Court. There are other reasons for obeying a judicial decision besides the Court's ability to display, like the owner of a champion airedale, an impeccable pedigree for the decision, connecting it to its remote eighteenth-century ancestor. And Bork knows this, for he believes that judges should give great weight to precedents, even when a precedent rests on a mistaken interpretation of the Constitution.
3. ORIGINALISM IS CANNOT SUPPORT LEGITIMACY THROUGH TACIT CONSENT

John Arthur, Professor of Philosophy and Director of the program in Philosophy, Politics and Law at Binghamton University, WORDS THAT BIND, 1995, p. 31-32.

Indeed, I will argue, originalism cannot successfully link tacit consent with its conception of constitutional interpretation. There is no plausible defense of the claim that the people, today, consent to the specific, historical limits on elected officials envisioned by the framers. To begin, it is clear that modern-day citizens are not generally aware of the actual, historical meanings historians might tell us were in the minds of the framers at the time the Constitution was ratified. Indeed, historians are themselves often at odds about such questions. But how, then, can citizens today be said to have tacitly consented to those specific meanings, if they cannot and do not understand them? Suppose, for instance, that historical research showed that the widely accepted, settled meaning given by the current generation of judges to a constitutional provision was not the one shared by the framers. Would originalists then argue that the Constitution has been wrongly understood because the people had consented to those original limits on their legislature instead of the limits the Courts have settled on? That seems completely implausible.