The Debate About the Court

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Confirmation of a Supreme Court justice is a circus disguised as a graduate seminar. But amid all the pseudointellectual parading and posturing, there are real principles of constitutional interpretation at stake. From a libertarian point of view, I think that four basic schools of interpretation can be identified, each with its attractive and unattractive results.

1. The originalist school, in which the Constitution is interpreted according to the “original intent” of its writers. Predictably, the results are most attractive to libertarians where the freedoms explicitly mentioned in the Constitution (e.g., freedom of speech) are concerned, and least attractive where they are not (e.g., in most matters of local and state legislation).

2. The evolutionist or revisionist school, in which the Constitution is interpreted as “a living document” whose meanings constantly develop in accordance with judges’ attempts to “grapple with new conditions.” This is a very unattractive position for libertarians who want to preserve explicit constitutional rights (e.g., 2nd Amendment rights) from the social engineering of modern judges; it is more attractive to those concerned primarily with such contemporary issues as abortion and gay marriage.

Amid all the pseudointellectual parading and posturing, there are real principles of constitutional interpretation at stake.

3. The theoreticist school, in which the Constitution is interpreted, not according to its original intent, but according to its aboriginal principles, “the principles that inspired it.” For this school, the final meaning of the Constitution is found not in its words but in the theories that originally justified its words, and not in those theories as explicitly stated by, for instance, the words of John Locke, but in the system of ideas that can be found, undamaged by personal errors and contradictions, behind those words. Theoreticism sounds more abstruse than it is. It is an attempt to say that the framers worked with certain ideas of liberty; these ideas were their intellectual “intent”; and we must interpret their words as expressions of that intent, whether the words capture the whole of the intent or not. Theoreticism allows almost every constitutional controversy to result in a victory for traditional libertarian principles; it has therefore been very attractive to many libertarians. One of its unattractive features is that it allows judges with different ideas of “liberty” or the origins of “American ideas” to read the Constitution in that other light.

4. The proceduralist school is the dullest of all schools. It is not meant to be inspiring. It is meant to reduce the risk of constant judicial upheaval by demanding that judges follow orderly processes, paying due deference to stare decisis. We are hearing much of that principle these days, because modern liberals don’t want the Supreme Court to overturn past decisions that they favor. The decisions may have been reached hastily or arbitrarily, but if the results are favorable to what the liberals regard as liberty, they should stand. By the same token, conservatives challenge proceduralism — now. Proceduralism is a ball that anyone can kick. I imagine that few libertarians would want a Court that had no respect for precedent, continuity, and rules of judicial procedure; I also imagine that few libertarians would argue for the maintenance of decisions that they regard as contrary to their own theories, simply on grounds of precedent.

It would be absurd to read texts written by others without a governing respect for the authors’ choice of words.

In the battle over Judge Kavanaugh’s nomination, all these schools of thought will be used and abused, though usually without reference to the names I have given them. It will be interesting to see what Kavanaugh does with them. It’s only fair, however, that I should state my own position. I am a supporter of the first school, the originalist.

Why? One reason is my belief that most of the rights that libertarians value are clearly and originally expressed in the words of the Constitution. Another reason is that I am a literary historian, and it would be absurd for me to read texts written by others without a governing respect for the authors’ choice of words, claiming that the texts mean something that their words don’t say.

But here’s where originalism is itself misinterpreted. Originalism is about interpreting what Hamilton called in Federalist No. 78 the “manifest tenor of the Constitution” — “manifest” meaning clearly evident in the original words. Originalism is about interpreting a document, not the psychology or social position or personal aims or philosophies of the authors. Shakespeare’s purpose was to make money, but King Lear is not about the importance of making money. Chief Justice Taney, in the Dred Scott decision, thought that the authors of the Constitution, some of whom owned slaves, intended it only as a document for white people; unfortunately for him, that’s not what the document actually says.

A truly originalist reading would find little in the Constitution on which to base the vast and crushing edifice of the federal government.

To my mind, the best books on these subjects are still Validity in Interpretation and The Aims of Interpretation, by E.D. Hirsch. You can see what you think of their arguments.

The originalist school of interpretation will be least attractive to libertarians who want to claim certain rights that are real enough but are not in the Constitution, or to accomplish ends that cannot be accomplished, right now, except through revisionist courts. I am thinking, for instance, about the death penalty, which has put constitutional interpretation farther from the manifest tenor of the authors’ words than anyone could possibly have imagined. If the death penalty is bad, an originalist would say, it would be worse to try to abolish it by revisionist interpretation.

The good thing for libertarians is that an originalist reading of the Constitution — a truly originalist reading — would find little in that document on which to base the vast and crushing edifice of the federal government. And that, of course, is why we will probably hear least about true originalism during the political debates about Judge Kavanaugh. If the debaters took it seriously, most of them would be out of a job.




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Comments

Richard Ferris

When a judge swears to uphold and defend the constitution, he is swearing to defend #1 against #2.

Scott Robinson

Dear Richard,

I agree, he must defend the right of offensive speakers to speak on college campuses without Antifa thugs smashing windows with clubs and metal fences and setting trash cans on fire to block anyone from attending the talk. The law enforcement should have defended the offensive speaker's right to publicly speak and the public audience's right to attend and listen without their #1 being violated by a bunch of thugs using their #2 right. The #2 right is not the right to assault and batter with the arms that you are bearing.

Best Wishes,
Scott

Geezer

By saying "swearing to defend #1 against #2," I think Mr. Ferris was referring to the first two "basic schools of interpretation" mentioned in the article:

  1. The originalist school, and
  2. The evolutionist or revisionist school.

If I am mistaken, Mr. Ferris can correct me.

Scott Robinson

Dear Stephen,

Good article about the never ending debate about what the Constitution and law mean. I think about the debate about the Second Amendment, "A well regulated Militia, being necessary to the security of a free state. The right of the people to keep and bear arms shall not be infringed." Many people get absorbed into the "well regulated Militia" part of the amendment and ignore all of the other plainly written text. They focus on the one word, "regulated" and interpret that as an endorsement of gun control regulations. However, they ignore that this first statement is ended with a period. This means that it is an ended statement. The statement that follows says that, "the right of the people...shall not be infringed." Those who contend for gun ownership prohibitions then say that this amendment is just about the right of the free state and the Militia. They ignore that the second statement does not say, "the right of the state" or "the right of the Militia", but says "the right of the people". This is an illustration of what the importance of words used in the text of a statement is. Then, what is meant by "the right of the people to keep and bear arms" requires a study of the history of the time when this was written and what other statements about this subject were made in the same era. I guess that this is what "originalism" means.

Another illustration of the importance of the words used in text is the opening statement of The Declaration of Independence, "We hold these truths to be self-evident. That all men are created equal, that they are endowed by their creator with certain unalienable rights. Among these the right to life, liberty, and the pursuit of happiness." I think of many people who protest about this statement being sexist because it says, "that all men are created equal". This requires a literalist interpretation and not an originalist interpretation. In Originalism, "men" is the abbreviated way to say "human". The opening line of The Declaration of Independence was the inspiration for Abraham Lincoln to fight the practice of enslavement which did actually get its prohibition in the Constitution with an actual amendment, perhaps relevant to what you mentioned about the problem of some reading unstated intentions into the text of the Constitution.

Best Wishes,
Scott

Geezer

Mr. Robinson is mistaken.

According to Wikipedia: "There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions. ... One version was passed by the Congress, and a slightly different version was ratified." The ratified version reads as follows:

"A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

In other words, it is a single sentence containing a comma and ending with a single period. The first thirteen words of the Amendment are a nominative absolute (see absolute construction), which is functionally similar to a subordinate clause. It might be rewritten thus:

"Because a well regulated Militia is necessary to the security of a free State, it therefore follows that the right of the people to keep and bear Arms shall not be infringed."

The men who wrote and ratified the Constituton and Bill of Rights understood the difference between a Militia (consisting of the entire population) and a Standing Army (consisting of a few government employees). As I like to point out: The People do not belong to or serve in a militia; The People are The Militia. See also the surprisingly informative Wikipedia article about the Second Amendment.

Mr. Robinson is also mistaken about "the opening statement of Declaration of Independence." The words he quotes begin the second paragraph of that document. The first paragraph asserted that the Laws of Nature and of Nature's God entitled the men who signed it to dissolve the political bands which connected them with another and to assume a separate and equal station among the powers of the earth. In other words, they claimed to have a right to secede from the current government. Abraham Lincoln conveniently ignored that paragraph when he waged a bloody war to prevent a different group of men from exercising that right.

Scott Robinson

Dear Geezer,

Thank you for including the references. In my defense, I was close enough for government work :).

Thanks,
Scott Robinson

Stephen Cox

Thank you, Scott. I’m always interested in your comments. Your point about what really is the business end of the second amendment is especially important and valuable—and memorable.

I adhere to E. D. Hirsch’s idea that the meaning of a text is what actually got into the words. (And I had to be convinced of that, by the way; the idea didn’t come naturally.) This is most obvious in the case of a contract — and of course the Constitution was intended as a kind of contract. If I write on a piece of paper, “I promise to pay Scott one thousand dollars on December 1,” someone may wonder why I wrote that and do a lot of research about my bank account and my psychology and where I came from and the other things I’d written and the things I’d read and the things that my friends had to say about the things we’d all read, but I still have to pay you one thousand dollars on December 1. If there’s a question about what “dollar” means, a judge can do some research and find that out. But you can’t say, “The dollar has been inflated so much since Stephen wrote his promise that now he has to pay me $1560,” and I can’t say, “Gosh, I forgot that December 1 was only three months away! What I really meant was, ‘I’ll pay him in five months.’ And also, I just remembered that I meant to add, ‘If he needs the money,’ because as you know, I don’t believe in giving money to people who don’t really need it. I’ve said that a million times.” No. Sorry. The meaning is there, in the words. Maybe someone can show that nobody who participated in the writing of the first amendment realized that freedom of the press includes the freedom to print porn, but that’s just too bad; we have the words, and that’s what they mean.

Of course, “all men” in the Declaration means “all people”--and it means it literally, because that’s what those words literally meant in 1776, even as today, unless an author put some actual words in a text to indicate that the meaning was actually “all males.” Justice Taney, in the Dred Scott decision, had to chase originalism all the way around Robin Hood’s barn to make “all men” mean “all men of non-African descent.” His was the kind of originalism that leaves literalism behind — a very bad thing to do.

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