In the first draft of this essay I set out to show that a method of constitutional interpretation primarily associated with conservative justices was flat-out wrong. I essentially argued that purveyors of constitutional textualism were led by blind faith rather than well-reasoned arguments. Ironically, I based my own efforts on virtually no reasoning other than my unwavering belief that, as a liberal, I must disagree with the method of constitutional interpretation supported by the likes of Justices Scalia and Thomas. In reworking this essay, I attempt to investigate and learn about a method of thought that previously I had merely disregarded.

What is Constitutional Originalism?

Lawrence Solum defines the four core ideas of originalist theory as 1) constitutional clauses have a fixed linguistic meaning at the time of their ratification; 2) the original public meaning of the Constitution is the original public meaning of the words and phrases as governed by the syntax and grammar at the time of ratification; 3) the linguistic meaning of the Constitution is the supreme law of the land; 4) there is a distinction between constitutional interpretation and constitutional construction. There are several theories of originalism, but this is the theory I think captures the core of the argument and the one to which I refer throughout the essay.

What do I like about Originalism?

I agree with originalism’s strong support for the rule of law. Originalism, as defined by Solum, focuses on the fixed linguistic meaning of the constitution in its original context. If lawyers effect change through words, it is important that these words and their meanings can be defined. If the meaning of a contract was subject to change over time, the value of contract law would decrease dramatically or become non-existent. Likewise, if the linguistic meaning of judicial opinions changed over time there would be little incentive for lower courts to submit to stare decisis when they disagreed with the settled meaning of the ruling. Words must have some fixed meaning to ensure confidence in a fair government and court system. Logically, the way to ensure this meaning is truly consistent across time is to assign words with the meaning they hold at the moment of their ratification. “Meaning” in this instance refers to the linguistic meaning the general public assigns a word. By using this definition of meaning, rather than a definition that takes into account the hidden intent of a word, a fair, consistent, and democratic meaning can be interpreted throughout time. In instances where the meaning the public at the time of the ratification would assign to a constitutional text is clearly decipherable originalism strongly supports the rule of law I also agree with originalism’s emphasis on democratic principles. The U.S. was founded on the principle of a representative government. For many Americans, the idea of a government of the people by the people is seen as the key element of our entire political framework. The people are able to voice their opinion and shape their government through their elected representatives who write and pass laws before facing reelection. If the people do not like what they see when they read newly enacted laws, elected officials must answer for their actions. Through these mechanisms of elections, public lawmaking, and more elections, the public is able to create real change in the type of society they wish to live in. The originalist’s focus on enforcing laws based on the public meaning of the text at the time of its ratification should theoretically ensure that laws supported by the will of the people and their elected representatives are upheld.

What do I not like about Originalism?

The aspects of originalism discussed above, the logic of which I cannot dispute, all focus on the first three tenets of originalism. Those tenets guide an evaluation of how to employ originalism. The fourth tenet is less about how to use originalism and more about when to use this method. So what is the distinction between constitutional interpretation and constitutional construction? Interpretation refers to the process of figuring out what the text means. Construction refers to the process of, after interpreting the text and defining its meaning, applying that meaning to the case at hand. In cases where interpretation yields one clear meaning (e.g. “each Senator shall have on vote”) the proper construction can easily be determined. However, in cases where interpretation leads to an ambiguous or vague meaning (e.g. “due process” or “unreasonable searches”) construction cannot proceed without looking at other factors—and it is at this point where the pitfalls of originalism can arise. Other factors to consider could be the intent of the Congress that passed the law, general constitutional principles, current moral attitudes. If no clear interpretative meaning can be assigned, the originalist principles cease to operate as a guide. An originalist might argue that this allows the method some flexibility when its principles no longer stand firm. However, a method that cannot be applied in vague or ambiguous circumstances loses much of its value as these grey areas are exactly where much of the biggest questions of constitutional law are decided. Another minor concern with originalism is that lawyers and judges are not historians. The true process of originalist interpretation requires tedious analysis of historical records to find the true linguistic, syntactic, and grammatical methods at use at the time of ratification. An incorrect interpretation would lead to wildly different, and perhaps unjust, results.

Lawrence Solum & Robert W. Bennet, Constitutional Originalism: A Debate Berger, Raoul (1997) "Jack Rakove's Rendition of Original Meaning," Indiana Law Journal: Vol. 72: Iss. 3, Article 1.