Originalism Answer Sheet

“1 ) The Constitution is an evolving document”

The Constitution has been amended twenty-seven times from 1791 to 1992, in response to changing social conditions. An originalist knows that this was itself intended because the Founders included an amendment mechanism, and regards the original intent of the Constitution as the intent of the ratifying communities contemporaneous with each provision and amendment. The issue that divides originalists from others is the question of whether the mechanism for evolution should be the formal amendment process, which requires considerable democratic input, or the evolving views of the staff of the judiciary.

“2 ) We should return to the social order of the 18th century because it was close to perfect, and the problems associated with slavery and the oppression of women are just liberal exaggerations”

Apparently not, since the Constitution was amended in 1865, 1868, 1870 and 1920 in response to these problems.

“3 ) African-Americans have a right to respond to racist violence with force if necessary”

The Fourteenth Amendment extended the “privileges or immunities” of national citizenship to freed slaves. The drafter of this provision made publicly clear that its purpose was to make the states respect the same rights the federal government was obliged to respect by virtue of the Bill of Rights, one of which is the right to bear arms. Even if the Second Amendment was itself originally intended to only confer a right to participate in a state militia, the Fourteenth Amendment cannot be understood as conferring a right to freed slaves, still oppressed by their white neighbors and state governments, to participate in state government controlled and white neighbor dominated state militias. There is also little evidence that one of its central purposes was to facilitate hunting.

“4 ) State governments should be allowed to impose religious views on their people because the Founders were Christians”

See #3 above, but replace the last phrase of the second sentence with “one of which is the right to the free exercise of religion.” Since religious belief had played an important part in abolitionist sentiment, the Slave Power was mightily concerned to regulate it to its own ends, and the ratifiers of the Fourteenth Amendment were concerned to prevent this.

“5 ) The Fourth Amendment cannot protect you from police wiretapping, because the Founders did not know what wiretaps were”

No one thinks this. Legal provisions are intended to apply to a multiplicity of future facts which will have unanticipated features. If the unanticipated features are troubling enough when they arrive, people change the legal provision. The question of how abstractly a legal provision should be taken is independent of the question of whether or not consulting original intent is the appropriate method for interpreting law.

“6 ) It is a profound lesson of the Vietnam War that no one should be required to fight in a war, when they had no say in whether or not it was to be waged”

See the Twenty-Sixth Amendment, ratified in 1971 in response to political pressures, extending the vote to 18 year olds (who had already been subject to the draft).

“7 ) The ultimate source of Constitutional authority is a body of timeless political truths, discovered by the Founders in the 18th century”

There are many people who think this, but it is not an originalist idea. If timeless political truths were the touchstone for interpretation, then we could circumvent the Founders and their amendment-ratifying counterparts subsequently, and just consult philosophers. This would be an awesome idea, since philosophers are not only always clear and easy to understand, but also agree on everything.

“8 ) The ultimate source of Constitutional authority is the people’s will”

Reflection on originalist complaints about Roe v. Wade suggests that originalists are (perhaps implicitly) committed to a Rousseauist conception of popular sovereignty, and an Austinian conception of law as the command of the sovereign. On such a view, you have the constitutional rights that you do because, and only because, these are restrictions on state action commanded by the People themselves, in commands addressed to state and federal government, articulated in the Constitution itself. As the Preamble says, “We, the People […] do ordain and establish this Constitution […].”

In prior discussions of originalism, I have been surprised to hear opponents criticize the notions of popular sovereign and popular command as being nothing more than useful fictions (unlike presumably rock-solid notions like “moral principles”). This seems to presuppose that the notion of you and your intentions are not merely useful fictions too. Yet there are good reasons to think the notion of a self and its intentions are useful fictions as well. If everything is a useful fiction, one might well ask “fictional compared to what?

This Poseidonian is not an originalist, as there are many tools in his toolkit, and all of them have their uses. Asking what purpose a law was contrived to serve, what problem it was supposed to solve, is one of them. Asking the people who contrived it is one way to answer that question.

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2 comments on “Originalism Answer Sheet

  1. Pliny the Elder says:

    A couple of things (perhaps even worth remembering):

    1) the interpretive stuff only kicks in when a provision is unclear. There have been virtually no cases re: the age one must be to serve as Pres. because there is very little room for ambiguity, so an originalist and for instance a Marxist interpretation would both say 35. One could manufacture a bizarre hypo to try to test this, but why?

    2) there might be different approaches for a constitution and a statute or regulation (key CJ Marshall quote and genuflect). There functions are not quite the same so this might matter, a lot.

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