Thursday, March 10, 2005

Original Sins

Feddie of Southern Appeal responds to Legal Fiction's attack on the jurisprudence of "original intent." Since I also am of the opinion that original intent makes no sense, I'll respond to his arguments here.

Since Feddie's analysis is interspersed between sections of Publius' original post, it is hard to provide a summary of his argument with block quotations. But the thrust of his argument is essentially that original intent is the only just form of constitutional interpretation because it is objective. We take a situation, ask "what would James Madison do?" (WWJMD), and rule accordingly. Other systems are inadequate because they are subjective: they entail unelected judges determining what "is" justice, due process, speech, etc.. Furthermore, he argues, the originalist position is superior because it is the most representative of what the people voted for in the first place. If "the people" were told that they were voting for X, it is unfair to then expand X into X, Y, and Z. Finally, he argues that the extensive debate record and deliberation that went into drafting and ratifying the constitution proves that there is a deducible original meaning to its clauses, for the state's certainly wouldn't have agreed to cede so much of their powers to the central government if they didn't know what the terms of the bargain were.

There are a few problems with that however. The first problem is that Feddie is being just as subjective in elevating objectivity to the paramount value of the judicial system. I'm not contesting that objectivity is usually a good thing, but there are any number of values that are "good things," Feddie just assumes that objectivity should trump them all. The constitution doesn't agree though, for good reason: not all of the goals of the constitution can be encompassed via completely objective standards. That's why we have the "necessary and proper clause." What is "necessary and proper" to carrying out Congress' I.8 powers is subjective, debatable, and most importantly it is temporally variable. It was not necessary and proper for congress to impose limitations on local commerce in 1820 to regulate interstate commerce. However, by 1940, with our far more integrated and interconnected economy, then such actions may very well have been necessary to regulate ISC. The point isn't that the meaning "changed," it's that the meaning was always contingent on specific social situations which (as situations are apt to do) DID change. The N+P clause is thus a perfect example of the constitution allowing for subjectivity in our governmental limits, which is probably why originalists are so uncomfortable with giving it any vitality. But without that clause, the founders knew that the constitution would quickly become as impotent as the Articles of Confederation. Guilty beyond a "reasonable doubt" is another case of generally accepted subjectivity in our judicial process: it is impossible to provide objective benchmarks for what that term means, and trying to do so would defeat the purpose of the standard at all. We allow subjectivity in our judicial decisionmaking all the time without question, not because we adore judicial fiat but because we realize that the infinite number and permutations of relevant facts make every case unique and thus require some bit of discretion if we're going to achieve justice in the end. Whether to give a defendant 10 years or 20, whether or not negligence was "gross" or not, whether or not someone is "competent" to stand trial, all of these are subjective determinations, but ones that are necessary to the functioning of our constitutional system, and I highly doubt the framers would dispute that. But once we accept that subjectivity is an acceptable state for our judiciary to be in, then Feddie's case unravels, because it provides no warrant for even why the framers would prefer us to look at the "framers' intent," aside from "objectivity is a good thing."

A second problem with Feddie's claims is it assumes that the text and the framers' intent are compatible. To use Publius' structure, it assumes that what the framers wanted is within the "bounded indeterminacy" of the text. However, his jurisprudence gives us no guide at all on what to do if that isn't the case. Two examples are illustrative. The 1964 civil rights act includes a clause protecting discrimination based on "sex." That clause was added at the behest of Virginia Senator Howard Smith, whose purpose (and we are quite sure of this) was to cause the bill to fail. He hoped that giving equality to women as well would pick off enough supporters of the bill to keep it from getting through the Senate. Needless to say, the plan backfired, but under an originalist approach we are still left in a conundrum. The "intent" of the clause was to make the entire bill inoperative, but that intent has absolutely nothing to do with the clause as written! What are we supposed to do? And if the intent of the framers is the only way to discern the meaning of the text, then how are the Court's supposed to interpret the clause at all? These are intractable problems. If Feddie thinks that you can dodge that one because it was only one person with that view, then I'd submit "Laci and Conner's Law" as an alternative. As I noted here, the manner in which that bill was passed makes it clear that the "purpose" of the bill was either a) to try and set the stage for banning abortion or b) to make Democrats look really bad on election day. Neither one has anything to do with the text of the bill, but they still remain the "intent." Another example is the very one Feddie uses: obscenity. He says the framer's clearly didn't consider it to be speech. Those are lovely sentiments, except for the fact that there is no objective way to interpret the word "speech" without including obscenity as well, at least if we are going to generally incorporate books and artwork into "speech," which we do. Cast aside the fact that what is "obscene" is subjective (ah yes, that again), and temporally specific ("Ulysses," anyone?), but it is contradictory to what is present in the text--which does not even suggest that speech can be restricted because it gives pastors an erection. As I've argued previously, if the framers intent and the text are not in congruence, that doesn't mean we magically morph the meaning of the text to match the framers' expectations, all it means is that the framers contradicted themselves.

Finally, while I think the above two points are enough to defeat originalism, I also don't think that Feddie really warrants his claim that the constitution clearly has a unambiguous and static meaning that the electorate was aware of upon ratification. He wrote:
" If the men who wrote and ratified the Constitution did so, as Publius suggests, with the understanding that the fundamental meaning of the document's text would evolve over time, then why all the fuss? Why spend all of that precious time debating the meaning of the words to be used in the Constitution if the framers' understanding of those words made no real difference? Why use common law terms of art throughout the document if the framers/founders had no intention of incorporating the then existing (and corresponding) jurisprudence into the Constitution? And do any of y'all honestly believe that the ratifying States would have given up the bulk of their powers to the federal government in the absence of some consensus about the common meaning/understanding of the Constitution's text?"

However, to once again go back to Publius' standard, it is at least as reasonable to think that the debate was over the boundaries of our "bounded indeterminacy" as it was over some very precise static meaning. After all, if you're going to have an indeterminate text, what is considered "in" and what is considered "out" is certainly an important issue for debate. Feddie finds it inconceivable that anyone would vote for such a text. I don't see why that is: Feddie himself thinks that the constitution would be better if it banned the death penalty, couldn't the people have had the foresight to realize that new generations might have new moral insights which would expand and build upon the principles which they laid down? Feddie seems to think that the proper way to do this is via amendment. I disagree. I think the constitution should not be construed in such a way as to make it obsolete every thirty years. It strikes me as eminently reasonable to argue that though the abstract values of the constitution are eternal, granting these values any vitality requires the recognition that the situations and applications on which they are contingent are fluid and changing. And perhaps I have an overly bright view of the founding generation, but I think they took that view as well.

1 comment:

Steve Dillard (aka Feddie) said...


There are numerous problems with your analysis, which I will attempt to address at some point.

For the time being, I would simply clarify that I do not advocate or support "original intent." I could care less what any particular founder/framer intended the text to mean. What I look for (and I am paraphrasing Scalia here) is the original understanding of the text (i.e., how the text was understood by the men who wrote and ratified same). There is a significant difference between these two. So, when I read the Federalist Papers, I don't give any particular passage the effect of law simply because Madison, jay, or Hamilton wrote it. I am, however, interested in what those gents wrote to the extent it sheds light on how the text of the Constitution was understood when ratified. I hope this clarifes matters a bit.