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Originalism is Jurisprudence, and Jurisprudence is Originalism
If the US Constitution were loosely constructed and meant to be interpreted based on the evolution of thought in society, we would have no need for a judicial system.
(This is part one of a three-part series derived from a term paper I wrote in a previous semester titled “We Have All Always Been Originalists”)
Originalism is not a monolithic dogma that leads to a unity of thought. As an approach to jurisprudence, it is a device that grounds the courts to the intention, text, and context of the laws. Justice Kagan can rightfully say, “We are all originalists now,” not only because the most persuasive arguments in recent decades have been ones related to intention, text, and context but because this is a foundational concept in historical jurisprudence.
But there still are, and there will always be, differences in how judges view the responsibilities of the court, the degree to which originalism is adhered to, and simple disagreement over what the intention, text, and context of law are.
What is originalism? Does it mean the same thing to different people? Is it consistent with historical approaches to jurisprudence or is it something new and wholly different? When liberal justices such as Elena Kagan say “We are all originalists now,” are they thinking of originalism in the same way as conservative justices?
“Non-originalism” is the Aberration
First, let’s address Kagan’s thinking a little bit more. In her confirmation hearing, she said, “Sometimes [the founders] laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So in that sense, we are all originalists.”
Justice Kagan is considered a liberal justice, but this is an originalist statement. She is saying that when the Constitution, or any law, is specific on an issue there should be very little wiggle room for the conscientious judge. While her statement leaves an opening for the broader interpretation of non-specific law, it is not in a way that adopts a living constitution approach but one that concedes that a judge sometimes has to fill in the gaps left by unclear legal language.
But while Justice Kagan seems to be asserting a “middle way,” her assertion angered many observers who felt she was nodding her head to a conservative theory that had invaded the judiciary. But is this a story of Justice Kagan surrendering to a new theory as introduced by Justice Scalia, or is she simply hearkening to a historical jurisprudential tradition?
Various historical figures, such as Alexander Hamilton or William Blackstone, have pronouncements that don’t sound altogether different from Scalia’s views on law or Kagan’s soft echoing of it. In Federalist No 78 Hamilton says, “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
Hamilton, perhaps, was echoing Blackstone’s Commentaries on the Laws of England which said, “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”
These utterances from more than two hundred years ago indicate that considering intent, text, and context of law were typical procedures in both the British common law tradition and in the early American Republic. In this sense, we have always all been originalists, and non-originalism, if it has actual adherents, is the aberration.
Originalism is Jurisprudence, and Jurisprudence is Originalism
Here, we can get down to the fundamentals of why an independent judiciary might want to ground its rulings in the intentions, texts, and contents of law. Hamilton again observes that if a judge substitutes will for judgement, it “would prove that there ought to be no judges distinct from [the legislature].”
If the US Constitution were loosely constructed and meant to be interpreted based on the evolution of thought in society, we would have no need for a judicial system. As Scalia asserts in his seminal address on originalism in 1988, if the US Constitution contained, “a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature?”
It could be argued, then, that, at least to a certain extent, originalism is jurisprudence and jurisprudence is originalism. If the courts were to be the purview of arbiters instead of judges who could alter the very meaning of the law based on changing views in society, what then was the purpose for separating jurisprudence from legislative prerogative?
To quote Scalia once more, “the legislature would seem a much more appropriate expositor of societal values.” If the evolution of values is the highest concern, why aren’t we emulating the Ancient Greek custom of putting all matters before a body that represents the undiluted will of the people?
It would seem that our system of government is founded on the lessons learned in history, exemplified by the arbitrary judgment laid upon Socrates by a democratic body unmoored from any grounding principles of justice. The very purpose of establishing a Constitution is to lay down timeless principles to which the ages must adhere...upon which a just government is constituted.
In a constitutional framework, only after much consideration and by decree of an overwhelming majority of the people should a constitution be altered through amendment. In such a framework, the purpose of a judiciary seems to be to hold the line of agelessness in an established Constitution in the face of immediate concerns and anxieties.
Again, from Scalia, “A democratic society does not...need constitutional guarantees to insure that its laws will reflect ‘current values.’ Elections take care of that quite well. The purpose of constitutional guarantees of individual rights...is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable.” Justice, if it is anything, is a consistency in the application of law. Consistency is the foundation of the rule of law. The judicial system holds as its foundational task ensuring the presence of justice in society and meting out judgments that reflect the rule of law.
This is only possible if there is a certain consistency in how laws are interpreted and the only consistent way to interpret laws is by hearkening to the intents, text, and contexts of the law. We can call it originalism, precedent, deference, stare decisis, or a million other theoretical frameworks that diffuse a judge’s personal biases and establish an expectation to hearken to the purpose and spirit of the laws, but at the end of the day, we are talking about the core of why we have a judicial system. Without these frameworks, we would be better suited to dissolve the judicial system and allow the legislative branch to determine the constitutionality of a law and interpret the application of the law.
Read part 2 here.