When debating originalists, who will tell you loudly and at length how their theory is the only one that can provide any stable meaning to the constitution, I always am left wondering -- what if the text is intentionally left ambiguous? What if, for any number of reasons, the intent was leave certain things uncertain, in the hopes that future generations could work them out consonant with the ideals and best knowledge of the time?
I wonder the same thing when dealing with certain religious fundamentalists. There is ample grounds from within Jewish tradition to hold that ambiguity, uncertainty, and plurality are really important values. Yet, as Gershom Gorenberg reminds us, there are still plenty of fundamentalists in the Jewish faith who are fanatical in their assertion that Jewish tradition provides clear, unambiguous, and literal answers to all of life's questions.
The thing is that these debates are always cast in terms of more versus less religious adherents to the faith. But that concedes the argument before it gets started. The fundamentalist ethos bears more in common with other fundamentalists (of any faith) than it does with the totality of Jewish traditions. So I reject that they are more religious than I. Indeed, I think that their outlook is a deep perversion of Judaism itself. Were I inclined to such language, I might call them heretics.
More broadly, I don't like the norm that Conservative or Reconstructionist Judaism is just Judaism for Jews too lazy to be Orthodox. If we're going to hold these ideals, then we have to be prepared to defend them as the right interpretation of Judaism, not the right "balance" between being Jewish and being secular. Judaism is not inherently a series of concentric circles emanating from the Haredim at the center. Those of us in more liberal denominations have just as much right as anyone else to say that we're representing what Judaism ought to be.
"What if, for any number of reasons, the intent was leave certain things uncertain, in the hopes that future generations could work them out consonant with the ideals and best knowledge of the time?"
ReplyDeleteIf you haven't encountered originalists who say, "That's what the amendment process is for," UChicago ain't living up to its rep.
Though once you flip the burden and say, "Well, if the Court's decision is so bad, just amend the Constitution like we've done before (11th, 14th, 16th, 19th)," suddenly amending the Constitution is way too burdensome and not to be contemplated.
That's non-responsive. I'm not saying X issue should be left ambiguous, I'm saying "what if the constitution, as written and intended, was meant to enact said ambiguity."
ReplyDeletePut another way: Let's say I want to write an ambiguous clause into my constitution, leaving it up to future norms and standards of reasonableness to interpret. From an originalist perspective, is it even possible for me to write that clause? What would I have to write down for the clause to interpret it that way (short of smacking folks over the head with it: "This clause is deliberately left ambiguous -- future generations, interpret as you will.").
From an originalist perspective, why not write exactly that if you intend ambiguity?
ReplyDelete(From my perspective I care not one whit for framers' intent, though, so I get to sidestep this debate. Dead hand of history and all that.)
David,
ReplyDeleteThey could have written into the Constitution that it was to be interpreted in accordance with the meaning of the words at the time one is doing the interpretation. Contracts even back then would often have provisions stating under which nation/state's law they were to be interpreted, so it's not like the idea of directing interpretation was unknown to the Founders.
And that's the only way? It seems a bit forced to me -- one might think that vague and open-ended language might also insinuate that ambiguity is an integral part of the clause. There is no a priori reason to assume a textual clause provides a clear, literal rule as opposed to a vague, open-ended one.
ReplyDeleteone might think that vague and open-ended language might also insinuate that ambiguity is an integral part of the clause
ReplyDeleteI suppose it depends on what kind of norms you're bringing to your understanding of the Constitution. Perhaps because I've been doing a lot of work on contracts lately, I'm momentarily inclined to think of it the way we do with contracts, which is not at all to assume that "open-ended language might also insinuate that ambiguity is an integral part of the clause," but instead to do our best to fight out a definition for that language.
With contracts, we have the "meeting of the minds" ideal that is somewhat undermined by the fact that, not unlike political documents such as the Constitution, some contracts are also the products of compromise and a desire not to get too far into details that will result in the deal's not getting done. (And of course the most common contracts involve no negotiation at all.)
Still, a textual originalism might work here -- you can't claim that all the signers and then the states ratifying the Constitution meant the same thing by a word if in 1789 it had one of three possible meanings, but you probably can exclude meanings that the word didn't have at that time. Though I think we'd have to go outside just dictionaries for claims about the totality of a word's meaning in 1789, since they sometimes were just ratifying elite preferences or the author's whim.
A good point, and why I've always disliked the fact that liberal followers of any religion tend to be called "moderates."
ReplyDeleteI mean, if I wanted future generations to know I had left intentional ambiguity I would at least want to spell that out in case those generations hit a textualism craze.
ReplyDeleteGreat post.
ReplyDelete