By Samuel Damren
This is the third commentary on Liberty of Conscience. The first commentary discussed Roger Williams' role in establishing individual religious choice in the American Constitution.
The second commentary focused on the history of religious conflict in Europe and England preceding the American Revolution and lessons learned from that experience.
This commentary concerns the theory of originalism, advanced by some judges and others as the "one true method" to interpret the Constitution.
Originalism contends that the meaning of provisions in the Constitution is static, fixed at the time the Constitution was adopted. Originalism came into vogue in the 1980s as an alternative to a judicial philosophy which saw the Constitution as a "living" document. It split into two camps. "Intentionalists" who believe the focus should be on the founders original intent. "Textualists" who believe the focus should be on the public meaning as understood at the time the text became law.
This commentary offers four criticisms of originalism.
(1) Historical findings are not jurisprudence.
When judges make "historical findings" of constitutional meaning following either variant of originalism, it is important to recognize what the court is and is not doing.
The court is not making a finding of fact in the manner of a trial court. In making historical findings dating back to the adoption of the Constitution, no witnesses appear before the court to testify. The court is not determining credibility; nor assessing the demeanor, character, or other factors attendant to the evaluation of witnesses offering in person testimony.
In this context, the judge's determination of meaning is not entitled to the same deference that the court's determination of the credibility of live witness testimony is accorded.
No rules provided by the Constitution guide or confine this version of judicial interpretation. Nor are there standards to assess whether a judge's selection of particular sources and prior historical interpretations and disregard of others to support a historical finding satisfy an objective test of reliability. There is no criteria to evaluate whether the basis for the judge's historical finding is "sufficient" and should be somehow binding as a matter of law.
Originalist judges are "arm chair" historians. The fact they possess gavels does not distinguish the merit of their historical findings from those of other arm chair historians.
(2) A policy that celebrates forward thinking should not bind us to the past
The underlying policy goals of originalism are self-contradicting.
On the one hand, originalists place the founders on a pedestal of American exceptionalism. They are celebrated as forward thinkers who envisioned and then created a unique form of government through the 1787 Constitution.
However, as a methodology to preserve the founders' contribution, originalists restrict the lens through which they interpret the Constitution to a world perspective fixed more than 230 years ago when the Constitution was adopted.
In practice, this tether to the past denigrates the value of forward thinking that originalists so celebrate in the spirit and achievement of the 1787 Constitution. As a result, when new expressions of individual liberty surface in present times, originalists do not celebrate. Instead, they apply "backward thinking" to evaluate whether the new expressions have any place in a supposed rigid and fixed constitutional framework.
(3) The assumption that constitutional meaning was fixed in 1787 is not defensible.
Everyone acknowledges that not all the founders who signed the Constitution approved of slavery. We also know that at the time it was signed, the signers recognized that the wording of significant parts of the Constitution were purposefully unclear; so much so, that it could and did mean different things to different Founders, particularly regarding the institution of slavery.
Some of the signers believed that the concept of "equality" under the Constitution only applied to privileged white men; others viewed "equality" as more expansive. That being the case, it is impossible for proponents of originalism to contend that the meaning of the Constitution was fixed when adopted.
As scholars observe, this underlying assumption of originalist theory is the product of faulty arm chair historical findings. Originalist's "cherry-picked" the historical record to find support for a theory of Constitutional interpretation which favors conservative values.
(4) Originalism as a theory does not and cannot account for the problem posed by amendments to the Constitution.
The final criticism of originalism in this commentary addresses the mechanics of its methodology.
If the meaning of the 1787 Constitution was fixed at the time of its adoption, then every time the Constitution was subsequently amended, a new "meaning" must also have been fixed. At a minimum, the new meaning would apply to the new words and phrases in the amendment. In other instances, however, the new "meaning" would extend to existing words and phrases in the original Constitution whose meanings were undeniably changed by the amendment.
Originalism thus requires that proponents of each amendment to the Constitution be viewed in their own right as a separate set of additional Founders and that the new "meanings" ascribed to each amendment be included in originalist analysis of the amended Constitution.
This clash of new and old meanings, original founders and later founders, is highly problematic to the mechanics of originalist methodology.
For example, no one disputes that if the 13th and 14th Amendments had been part of the original 1787 Constitution, it would never have been signed. Such knowledge requires one to assess what meanings in the 1787 Constitution were overridden by these post-Civil War amendments. Indeed, given that the original Constitution would never have been signed by the founders, it is fair to ask whether originalism's analysis of meaning should be required to fully re-start in 1868 without regard to meaningsfixed in the original Constitution.
Some originalists might prefer a less severe approach. They might attempt to "filter out" only the "meaning" that original founders from slave states attached to the 1787 Constitution. Another alternative might attempt to "filter out" only the "meaning" that founders from slave states attached to the concept of "equality" in the 1787 Constitution.
It is difficult to see how originalists can merge these clashes of "fixed" meaning involving different times, perspectives and sets of founders with one another in a coherent fashion.
The final commentary in this series will discuss Liberty of Conscience and common law as guides to establishing new expressions of personal freedom under state constitutions.
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Samuel Damren is a retired Detroit lawyer and author of "What Justice Looks Like."
