Tuesday, December 11, 2007

Pseudo-Originalist Arguments

In a previous post, I unpacked the originalism trinity, exploring how the broad term "originalism" really encompasses at least three subtly different interpretative theories. To follow-up that one, I thought I'd write a post on "pseudo-originalist" arguments -- ones that often drape themselves under the label of "originalism", but really are something else entirely. Specifically, I've noticed that often, nominal originalists simply cite the fact that a proposition or position is old in lieu of proving that it constituted the original intent, meaning, or understanding of the clause in question. For example, Scalia and Thomas, the Supreme Court's prominent originalists, defend the "color-blind" principle, which is quite old (the term dates back to Justice Harlan's Plessy dissent in 1896, and Justice Thomas has tried to date it back even further to the writings of Fredrick Douglass) and has a long pedigree in American racial thought. But there is very little evidence to show that this is the original meaning of the 14th Amendment -- a fact that becomes evident when one remembers that Plessy was decided nearly 30 years after the ratification of the Amendment. Another good example would be the debate over whether the federal government only has powers "expressly" delegated to it. John Marshall answered that question in the negative in McCulloch v. Maryland, holding that the omission of the word "expressly" from the 10th Amendment (in contrast to the Articles of Confederation, where it was included), showed that the original intent of the constitution was to give the central government broad powers. But as Kurt Lash argues in a upcoming paper, that conclusion appears to be incorrect -- the framers did, in fact, think that the powers of the federal government were supposed to be limited to that which was expressly enumerated.

This mistake tangles up two very different justifications for legal decision-making. To be sure, there are perfectly good reasons to take the longevity of a given legal principle into account when deciding how to rule on present cases. But these reasons aren't the same as the one's that motivate originalists. Originalism is normally justified on two grounds: that it is more democratic, because it enacts the policies people actually and consciously chose to vote for, and that it represents the "true" meaning of the clause, before it was muddled about by interpretation. Appeals to the longevity of a rule (through stare decisis or other means), by contrast, are defended on two rather different premise: that people have come to rely on the prior rule (predictability), and that the fact that the rule has "stood the test of time" signifies that it is working.

Two sources might be the cause of the mix-up. The first is that both originalism and, to coin a term, temporalism are both appealing to historical texts in opposition to a contemporary re-interpretation. The second is that both the reasoning used by originalism and that used by temporalism are appealing to modern-day conservatives -- they (say they) like democratic deference and absolute Truth (originalism), but the also are strong proponents of social stability and relying on received wisdom (temporalism). It is unsurprising that the two might be blended together, as they both make arguments that judges of similar political alignments will find persuasive.

But that notwithstanding, originalism and temporalism are actually very different. The latter is more pragmatic and Burkean -- it draws its power not from the "legitimacy" of the interpretation, but the fact that society has already adopted it as the "rule" and has creating working institutions relying on that. Originalism, by contrast, is ideological -- it claims supremacy because it shows the "true" meaning of the law in question and because it's interpretation is democratically ratified. It doesn't particularly care about how the change in law will work in practice.

Why does this matter? The blurring together of originalism and temporalism, in effect, gives conservative jurists two bites at the apple when seeking to justify their preferred policy ends as legally mandatory. Some policies are legally defensible under an originalist regime, but not a temporalist one, others vice versa (and some both, and some neither). People who think of themselves as constrained by an interpretative philosophy, of course, are not free to simply hop from theory to theory until they find the one that fits their preference for the case. But that self-check only kicks in when the judge is cognizant that this is what she is doing. When originalism and temporalism are not seen as separate, that constraint falls away.

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