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But Why Do We Disagree?
If "we are all originalists now" in matters of jurisprudence, why do we still disagree on so much?
(This is part three of a three-part series derived from a term paper I wrote in a previous semester titled “We Have All Always Been Originalists”, read part 2 here)
We still have our underlying question. If “we are all originalists now” and if, as I have attempted to demonstrate, originalism when defined as considering the intention, text, and context of the laws constitutes the core of what jurisprudence is, then why is there still such intense disagreement?
First, let’s discuss the most obvious issue that judges must face: the nature of the laws themselves. Whether we’re talking about the US Constitution or some vague aspect of tort law, we’re not talking about a book or an essay with a single author whose intentions are easily decipherable.
Laws are group projects that require major buy-in from multiple coalitions, who often have very different intentions for the legislation they are crafting. A good example is the three-fifths compromise in the US Constitution. This compromise is found in Article 1, Section 2, Clause 3 of the original document. It established that “all other persons” (meaning slaves) would be counted as “three fifths” a person for the purposes of establishing representation in the House of Representatives.
There’s little doubt that the pro-slavery South viewed the inclusion of this compromise as a victory for its intentions, for it made the practice of slavery part of constitutional canon and it gave them more representation. However, it was also a coup for the Northern states who sought to limit the power of the Southern states and, we can presume given certain abolitionist tendencies of many Northern delegates, there was hope that the compromise would someday allow for a turned tide against slavery. Given these extremely different intentions for this piece of constitutional law and the controversial context of its creation, how were judges supposed to consistently interpret the law? They could not, nor did they. And, today’s laws are no less fueled by complicated combinations of various perspectives and motives.
Added to this uncertainty of intent is the increasingly ambiguous language with which laws are written. In the present hyper-partisan atmosphere, legislators are increasingly wary of the unforeseen consequences they face for supporting or opposing legislation. This has led to more and more legislation crafted with unclear language in order to gain support for passage. This puts judges in frustratingly difficult situations where cases are brought before them regarding the application of law without clear textual basis for determining just judgements.
Ideally, judges could simply announce the law void and return the question to the legislative branch, but in the midst of legislative gridlock, such an across-the-board approach would add to the growing problems in society that are arising from government’s failure to address many serious issues. The judicial branch must engage in some give-and-take or lose a certain level of credibility from an electorate that could come to view the courts as being disruptive and obstructive.
Finally, when we talk about judges and justices, we’re talking about human beings. No amount of “artificial reason” can fully arrest biases or persuasions and every person who puts on the robe will fail to fully ignore their leanings and preferences. As Scalia concedes, “The main danger in judicial interpretation of the Constitution–or, for that matter, in judicial interpretations of any law–is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely.”
Justices and judges are not robots, and the requirements we put upon their duties will tax even the best humanity has to offer. But thankfully, we have a system that allows for multiple swings at the ball. Cases must rise through a process of lower-courts and, even if a question rises to the Supreme Court, the ultimate judgement will derive from the combined perspectives of nine very different people.
And, no judgement is ever a closed book. We keep re-evaluating, we keep arguing, we keep finding our way towards better law and better interpretation of law. If we ever reach a point where some judicial theory leads to a monolithic interpretation of law, we wouldn’t be celebrating but would have great reason to be concerned. Good law and good interpretation of law are achieved when we have the most perspectives as possible at the table.
We are indeed all originalists now and, to the extent that jurisprudence is the consideration of the intentions, text, and context of law, we have always all been originalists. In making her observation, Justice Kagan wasn’t kowtowing to a new trend in jurisprudence but was assenting to the overall trend of jurors, judges, and justices over the course of history.
And, as history has shown, there can never be a monolithic theory of jurisprudence that tends to total agreement on the understanding and interpretation of intentions, text, and context. Disagreement, debate, and dissent are the pillars of discovery that allow for better law and interpretation of law.
No theory of jurisprudence should be expected to end disagreement, debate, or dissent. To the contrary, we should value approaches that allow for broad consideration of all the factors and leave open the door for compromise. To offer a final quote from Scalia, “Originalism will...end up as something of a compromise. Perhaps not a bad characteristic for a constitutional theory.”