ORIGINALISM IS IMPRACTICAL

ORIGINALISM IS IMPRACTICAL

1. ORIGINALISM IS PLAGUED WITH DIFFICULTIES IN APPLICATION

Gene R. Nichol, Professor and Dean Emeritus at University of Colorado School of Law, Colorado Law Review, Summer 1999, 70 U. Colo. L. Rev. 953, p. 968.

The theory of original intention, like other constitutional methodologies, is plagued with difficulties. The frequent scarcity of ratification debate records, the difficulty of attributing a single intention to so large and diverse a group, the vagaries of constructed history, the Framers' apparent ambivalence about intention, and the abstract and aspirational nature of many constitutional provisions cast significant doubt on the ability of original intention to accurately guide judges.

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. 15.

One basic problem is that the text itself leaves so much room for the imagination. Simply consider the preamble, which speaks of furthering such concepts as "Justice" and the "Blessings of Liberty. " It is not hard, in terms of concepts that fluid and that plastic, to make a linguistically plausible argument in support of more than a few surely incorrect conclusions. Perhaps a rule could be imposed that it is improper to refer to the preamble in constitutional argument on the theory that it is only an introduction, a preface, and not part of the Constitution as enacted. But even if one were to invent such a rule, which has no apparent grounding in the Constitution itself, it is hardly news that the remainder of the document is filled with lively language about "liberty," "due process of law," "unreasonable searches and seizures," and so forth—words that, although not infinitely malleable, are capable of supporting meanings at opposite ends of virtually any legal, political, or ideological spectrum. It is therefore not surprising that readers on both the right and left of the American political center have invoked the Constitution as authority for strikingly divergent conclusions about the legitimacy of existing institutions and practices, and that neither wing has found it difficult to cite chapter and verse in support of its "reading" of our fundamental law. As is true of other areas of law, the materials of constitutional law require construction, leave room for argument over meaning, and tempt the reader to import his or her vision of the just society into the meaning of the materials being considered.
3. ORIGINALISM IS AN INCONSISTENT ARGUMENT OF CONVENIENCE

Gene R. Nichol, Professor and Dean Emeritus at University of Colorado School of Law, Colorado Law Review, Summer 1999, 70 U. Colo. L. Rev. 953, p. 968-70.

But these drawbacks are rank pettiness compared to originalism's central difficulty: its principal advocates relentlessly refuse to stick by it. Originalism works if they agree with the outcome dictated by history. If history does not lead them where they want to go, they simply reject it. Judge Bork, of course, was famously guilty of such maneuvers. Bork's originalism provided energetic critiques of much of the modern liberal agenda. But when he became a candidate for the highest judicial office, for rather obvious political reasons, he was unwilling to cast aside staples of American constitutional law like Brown v. Board of Education and Craig v. Boren. As a result, the articulate, strident, and condescending jurist was reduced to ambivalent babble. In Printz, Justice Scalia faced a powerful historical claim directly refuting his proffered rule. But rather than give in, he put his head down and pressed on - explaining at every turn why the lessons of the founding period have nothing to offer. This, admittedly, has not been Scalia's typical pattern. Usually when history is inconvenient, he simply ignores it. Justice Scalia's takings jurisprudence, for example, is completely inconsistent with the original understanding that only a physical invasion presents a constitutional violation. He does not seem to care. His wholesale revision of the jurisprudence of the Free Exercise Clause in Employment Division Department of Human Resources v. Smith was accomplished without even a nod toward the original meaning of the provision. In Lujan v. Defenders of Wildlife, Scalia fashioned a powerful new Article III doctrine to invalidate a federal grant of statutory standing. Neither the text of the Constitution nor historical practice supported his bolstered injury requirement. So he simply did not talk about them. The act of Congress was invalidated because he and his colleagues thought it was a bad idea.

PROBLEMS OF HISTORICAL KNOWLEDGE MAKE ORIGINALISM IMPOSSIBLE

1. HISTORY’S INDETERMINACY MAKES ORIGINALISM INDEFENSIBLE

John Arthur, Professor of Philosophy and Director of the program in Philosophy, Politics and Law at Binghamton University, WORDS THAT BIND: JUDICIAL REVIEW AND THE GROUNDS OF MODERN CONSTITUTIONAL THEORY, 1995, p. 34-35.

Defenders of original intent stress that judges should ignore their own values in favor of the values of the framers, so presumably in this case we would need to ask what the framers would do, given their values, if they understood our world as we do. But it is by no means clear that the "values" people hold can be sharply separated from their beliefs about the "facts." The value the framers (or anybody else) place on privacy and the importance of a warrant will be influenced by their beliefs about the dangers posed by modern technology as well as the risks posed by police intrusions on privacy. But if (as this suggests) the framers' values would change as they learned what we know, then what is left of the original claim that judges should rule in accord with the framers' values but not their (now outdated) understanding of the world? How are judges to know what the framers' values were? The temptation, of course, will always be for judges to attribute their values and beliefs to the framers, thinking that if the framers were here they would see the world as we do. Put that way, however, it is no longer clear that we are talking about "the framers" as much as about ourselves. Since any judge would presumably think the framers would take a reasonable position on these issues, there will no longer be a sharp distinction between our own ideas about what the Fourth Amendment requires and what the framers understood it to require.