On originalism

Over at ConfirmThem.com, I offered the following brief explanation of what originalim is, and as a precis, I'm rather pleased with it:

There are several schools of originalism, the most common being original meaning, but there are also believers in original intent (a pretty lacklustre theory, IMO) and original understanding. What they have in common is a shared view that the text governs and the meaning of the text must freeze in time at ratification, if the document is to be reconcilable with democratic government. The differences between the various originalist schools largely revolve around: WHAT freezes in time? What is authoritative?

Believers in original intent posit that a) there is a discernable singlular intent of the framers b) that we can discover it and c) that it governs. Most serious originalists dismiss this theory as pretty vapid and facially incoherent, not least because it renders itself incompatible with textualism as a device for statutory interpretation, about which more anon.

Another school of thought, original understanding, says that what the framers (or, in some sub-groups, the ratifiers) thought they were enacting. This is a good, coherent argument, but I find it unsatisfying. Lastly, the school of thought I subscribe to, original meaning, says that the plain meaning of the document as the words would have been understood by a reasonable person at the time of ratification is what governs. This seems to me to be a good, reasonable theory which makes the governing instrument democratically accountable and does not clash with textualism.

So what’s textualism? Textualism is fundamentally a theory of statutory interpretation that says, “it means whatever it says.” Textualists are not concerned with what the Congress INTENDED to do (even assuming that 536 people can have a singular intent), nor with what the Congress THOUGHT it was doing (if you’ve ever perused the pages of the U.S. code, you’ll understand that the people who wrote this stuff had, at best, a torturous writing style, and at worst, a tenuous command of the English language). Textualists are concerned with what the law says; what is the plain meaning of the words that were enacted, as they would have been understood by any reasonable, educated person fluent in the English language, as 435 fictional reasonable Representatives, 100 fictional reasonable Senators and one fictional reasonable President should have understood the plain, ordinary meaning.

So textualism is essentially about using the plain, common public meaning of the words of a statute. Where does originalism come in? Why not just apply textualism to the Constitution? Answer: you should apply textualism to the Constitution, but in doing so, you must understand that the ordinary meaning of certain words in 1789 was not necessarily the plain meaning today. Originalism - as I view it, at least - is an error-correcting lense that sits neatly over textualism to adjust a plain textualist reading to take account for the toll of time on language.

Leave a comment: