Textualism vs Originalism vs the rest

[MarkD]

I consider myself to be foremost and Originalist, not a Textualist. That does not mean that I think most of the provisions of the Constitution and/or statutes passed by Congress have intended meanings noticeably different than the text. Us Originalists do not at all strive to portray law-making as being full of hidden implications, so that the texts of constitutions and statutes always have hidden meanings. The text will often, but not always, tell us what was intended.

In interpreting the law, textualism should always come first.

I doubt that many Originalists would disagree that the text is the first step. But even you admit that the first step isn't the only step:

I don't think textualism by itself necessarily gives you all the answers, ...

While I don't consider myself an originalist, I don't entirely reject it either. I think it can and should be considered as part of the larger whole of interpreting the words of the Constitution.

Conversely, while I consider myself an Originalist, I don't entirely reject Textualism either. Many times the text, by itself, will point the way, but not always.

The text is what we ultimately have.

But we also have historical evidence of what laws were intended to accomplish. That includes judicial opinions written by Supreme Court Justices who were aware of what certain provisions of the Constitution were intended to mean, and who explained it well. And there is historical context, too.

One of the most fascinating discussions about the respectability of Orignalism I have ever seen by a constitutional scholar was this passage by John Hart Ely in his seminal work, "Democracy and Distrust."

It would be a mistake -- albeit an understandable one in light of the excesses one witnesses at the other extreme -- to dismiss "the intent of the framers" as beside any relevant point. Something that wasn't ratified can't be part of our Constitution, ad sometimes in order to know what was ratified we need to know what was intended. ... Neither am I endorsing for an instant the nihilist view that it is impossible ever responsibly to infer from a past act and its surrounding circumstances the intentions of those who performed it. To frame the issue thus, however, is to bring to the fore what seems invariably to get lost in excursions into the intent of the framers, namely that the most important datum bearing on what was intended is the constitutional language itself. This is especially true where the legislative history is in unusual disarray -- as is certainly the case with the Fourteenth Amendment. ... [M]any of the records of the Fourteenth Amendment's ratification debates have not survived. Thus the only reliable evidence of what "the ratifiers" thought they were ratifying is the language of the provision they approved. ...

Every member of [a constitutional] convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. ... And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey. For as the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. ... (T. Cooley, A Treatise on the Constitutional Limitations *66-67 (2d ed. 1871)

These words were written, by Thomas Cooley, over one hundred years ago, but as today's self-consciously "historical" discussions of the Fourteenth Amendment continue to illustrate, their lesson has yet to be learned. (Ely, "Democracy and Distrust," pp 16-18.)

So Ely makes it seem as if Originalists truly have to be Textualists, especially when it comes to interpreting the Fourteenth Amendment. As good of a job as he did in explaining it, I still don't entirely agree. Especially not with regard to the Equal Protection Clause of the Fourteenth Amendment.

Lastly,

I saw a post bashing originalism as a fig leaf for right wing judicial activism, ...

I always feel as though I want to punch those people in the nose. It's so rude, insensitive, and extremely insulting to be told I'm a liar. Furthermore, every other judicial philosophy that people who say that ("the rest" in your thread title) are going to espouse will also be, inevitably, nothing more than a fig leaf for advancing their own political goals.

The nomination of Judge Bork forces liberals like me to confront a reality we don't want to confront, which is that we are depending in large part on the least democratic institution, with a small "d," in government to defend what it is we no longer are able to win out there in the electorate. (Attributed to Hodding Carter, State Dept. spokesman during the Jimmy Carter administration.)

[MarkD]

Two points:
1)

I always feel as though I want to punch those people in the nose. It's so rude, insensitive, and extremely insulting to be told I'm a liar. Furthermore, every other judicial philosophy that people who say that ("the rest" in your thread title) are going to espouse will also be, inevitably, nothing more than a fig leaf for advancing their own political goals.

At least non-originalists have the humility to admit that they care about advancing an ideology rather than pretentiously pretending to be some sort of objective figures who are "above it all".

Originalism is a political ideology because the Constitution is an inherently political document.

False.
Justice William O. Douglas was pretty much the most liberal Supreme Court Justice of all time, and he was certainly not an Originalist.  But he clearly engaged in a PRETENSE that he was OBJECTIVELY interpreting the Constitution, NOT APPLYING HIS OWN IDEOLOGY to his legal decision when he wrote the Court's majority opinion in Harper v. Virginia Board of Election, 383 U.S. 663 (1966), the decision which put the final nail in the coffin of poll taxes. "Our conclusion ... is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires."

Robert Bork's reply: "Douglas must have enjoyed that line ... stating emphatically that the Court was not doing precisely what the Court was doing." ("The Tempting of America," by Bork, pp 90-91.)

Hugo Black's reply: "The Court denies that it is using the 'natural law due process formula.' It says that its invalidation of the Virginia law 'is founded not on what we think governmental policy should be, but on what the Equal Protection Clause requires.' I find no statement in the Court's opinion, however, which advances even a plausible argument as to why the alleged discriminations which might possibly be effected by Virginia's poll tax law are 'irrational,' 'unreasonable,' 'arbitrary,' or 'invidious,' or have no relevance to a legitimate policy which the State wishes to adopt. ... I can only conclude that the primary, controlling, predominant, if not the exclusive, reason for declaring the Virginia law unconstitutional is the Court's deep-seated hostility and antagonism, which I share, to making payment of a tax a prerequisite to voting." (Dissenting opinion in Harper, supra, 676-677.)

John C. Hughes's reply: "Douglas's formalist rhetoric should not be taken seriously." ("The Federal Courts, Politics, and the Rule of Law," Hughes, p. 187.) (Legal Formalism: the uncontroversial application of accepted principles to known facts to derive the outcome in the manner of a deductive syllogism. Formalism has been called an "autonomous discipline," in reference to the formalist belief that judges require only the facts and the law, all normative issues such as morality or politics being irrelevant. If judges are seen to be simply applying the rules in a mechanical and uncontroversial manner, this protects judges from criticism. For this reason, formalism has been called "the official theory of judging." Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing the judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers. Formalism seeks to maintain that separation as a "theory that law is a set of rules and principles independent of other political and social institutions.")

2)

It has been argued, by Ronald Dworkin among others, that the claim of proponents of original understanding to political neutrality is a pretense since the choice of that philosophy is itself a political decision. It certainly is, but the political content of that choice is not made by the judge; it was made long ago by those who designed and enacted the Constitution. It was a choice between a judicial branch that is a policymaking arm of government and a judicial branch that implements the policies made by otChers. That, as we have seen, is what the separation of powers was designed to accomplish as it affected the courts. ...
Constitutional philosophies always have political results. They should never have political intentions. The proper question is not what are the political results of a particular philosophy but, under that philosophy, who chooses the political results. The philosophy of original understanding means that the ratifiers of the Constitution and today's legislators make the political decisions, and the Courts do their best to implement them. That is not a conservative philosophy or a liberal philosophy; it is merely the design of the American Republic. A theory of judging that allows the courts to choose political results is wrong, no matter in which direction the results tend. ...
In one sense, the liberal activists of today are right: the philosophy of original understanding does have political consequences, though not political content or intention, and my presence on the Court would have tended to make outcomes more conservative. But that would not have been because I imposed my politics. Rather, it would have been because when the Court of the past fifty years departed from the historic Constitution it consistently did so in order to legislate liberal results. A slowing or cessation of that tendency, a return to political neutrality, would mean fewer liberal results legislated in the name of the Constitution. It would also mean that no conservative results would be legislated in the name off the Constitution. Only those who think that the Court is properly a political body can object to that.
Perhaps those liberals who want a political Court are correct in their confidence that in the modern era judges will usually be more liberal than the electorate. If so, they are right, in terms of their immediate self-interest, to oppose original understanding and judicial nominees who insist upon it. That stance is, however, profoundly antidemocratic, and it is dangerous to the long-term health of the American Republic. ("Tempting," Bork, pp 176-178.)

(I should point out, of course, that Bork wrote that about 11 years before the Bush v. Gore decision, and I happen to strongly oppose that decision, whereas Bork was merely embarrassed at the official majority opinion in that case, but nonetheless supported the conclusion the Court reached by agreeing with Chief Justice Rehnquist's concurring opinion. I absolutely do not agree with either the per curiam opinion in Bush nor the concurring opinion. I am absolutely certain that Bush v. Gore was conservative judicial activism.)

So, in reply to your second statement, Fergie, of course the Constitution had subjective, political intentions in its drafting and ratification, and "Originalists" who successfully apply their philosophy to interpreting the document will produce results that the ratifiers wanted. If you object to that, you probably object to all the people who drafted, proposed, and ratified the Constitution and all of the amendments to it, and you probably object to their ethics, their politics, and their morals.

[MarkD]

This is one of my biggest issues with originalism. Originalism does exactly what you say it does not. As I said above, there are those that would argue that the freedom of speech protected by the First Amendment is something far less than what we have today, that the right only covers political speech. If I remember correctly, one of those individuals was Robert Bork. Not that I want to engaged in a debate about the 14th Amendment, but the Equal Protection Clause is generally interpreted by originalists to only cover race or [another] factors close to it (such as alienage [national origin]). Once again, there is nothing in the text to suggest such a limitation and those that adopted the amendment could have easily established such a limitation. They did nothing of the sort, though they most certainly could have. I would have said that the 15th Amendment was clear in its text and is not debatable, but the VRA stands gutted at this moment.

FTFY.

[MarkD]

I'm sorry that this has been a while getting composed and eventually posted.

And quite to the contrary, there is much to admire about the men who actually framed the 14th Amendment. Remarkable contrast between reading, say, John Bingham's remarks in the House debates and the sort of cramped construction both the Slaughter-House court and MarkD insist on placing on the words.

Quite. The clause was an invitation, indeed almost a stricture, for the courts to create a whole body of judge made law, since laws by definition are often unequal and pick winners and losers. So thus the courts had to devise formulas for what was deemed toxic inequality, and what not. ...

Please put the 14th into historical context: what had been the most recent major decision rendered by the SCOTUS before the 13th, 14th, and 15th Amendments were adopted? Dred Scott v. Sandford, a decision hated by the very people who proposed and ratified the three Civil War Amendments. The people I referred to just now were the Northerners/Republicans, including Abraham Lincoln – who consistently condemned the Dred Scott decision every time he talked about it. After a ruling like that, would the people who were adopting the Civil War Amendments have been likely to admire the SCOTUS and think that it was full of wonderful people who should take the helm at determining how much freedom everyone has, from state governments, and determining when people should be treated equally by the laws? After Dred Scott, do you really think that admiration for the SCOTUS in making laws about these matters was prevalent? Did John Bingham say that he admired the SCOTUS and trusted that it would always make wise decisions about how much freedom do people deserve to have and when do people deserve to be treated equally? Re-read the conventioncenter.org article you linked and find out if he said anything like that.

Getting back to Abraham Lincoln, here is something he said during his first inaugural address: “[T]he candid citizen must confess that if policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” (Richard N. Current, The Political Thought of Abraham Lincoln, (1967) pp 175-176.) I doubt he meant that there should not be any judicial review at all, but at least he was saying that the Court should not be able to exercise judicial review over every imaginable topic, such as all of the ways that state governments will possibly deprive people of “liberty,” and all the ways they will, inevitably, impose inequalities.

One syndrome associated with all these interpretative tools, sometimes inconsistent, and sometime subjective in their interpretation, is that it allows judges to rule any way they want based on their personal preferences, and then reverse engineer legal justifications to cover their tracks based on the well stocked tool box they have in their desk drawer.

These people stopped fooling me, long, long ago.

I hope you don’t think that’s what I’M trying to do to you – or to anyone else! Which brings me to my next quote:

The sad fact is that original meaning, like original intent, is most often simply a way to launder conservative policy preferences through a universalist veneer. ... The whole philosophy relies on observers uncritically accepting the dogma that the populations of yesteryear were uniformly conservative, that they therefore interpreted laws in a conservative manner, and that these conservative interpretations were and/or are reasonable. None of this is even close to true.

Regarding the remainder of your comment that I quoted above, that is your spin, but your spin is just as far from the truth as how you say the Originalists are trying to portray the past. But one thing I will remind you of is that the proposers and ratifiers of the 14th did not allow women to vote; they would have referred to gay men as “sodomites” in common, every-day conversation. I do not say that as if I think the views of the past ARE REASONABLE, I am only pointing out the reality of what were the prevalent views of the time in order to discern what the 14th was, and was not, intended to cover. Those “incorrect or outdated” views do not control all of us, they only inform us of what the EPC was not intended to do. How we want to treat women and gay people is now, as it always had been (before Reed v. Reed and Romer v. Evans, up to us.

The second issue is that it's possible for old understandings of certain words or ideas to be plainly incorrect or outdated. For example, imagine a law which says that employers may not fire anyone for choosing to wear a certain color to work. My client is fired for wearing blue to work, and I am preparing to sue when some so-called originalist comes along and says "aha, but at the time blue was 'originally understood' not to be a color!" Let's even further suppose that he's right and he proves this fact beyond any doubt somehow. Why should it matter? Believing blue not to be a color is absurd.

Yak, yak, yak; blah, blah, blah. Was that an effort on your part to demonstrate that you know some basics about engaging in legal reasoning? Yes, it is a widespread, universal element of the teaching and practicing of law to contemplate and elaborate about hypothetical analogies. But IRL, the analogies that you think about and talk about should be plausible and realistic, not this kind of absurd, far-fetched analogy.

The first problem is that the "original meaning" of a text is even less knowable than its "original intent." There are basically an arbitrarily large number of contemporary perspectives on any given text, recorded and unrecorded; how are we to determine what is the "reasonable" interpretation?

First of all, you seem to be hinting, like politicallefty in a post above, that it is possible to differentiate between “original intent” and “original meaning,” and that there are some Originalists who do actually differentiate between those terms. I’m not in any school of thought like that. I cannot fathom how anybody can differentiate or distinguish between “original intent,” “original meaning,” and “original understanding;” to me, those terms all mean the same thing. Secondly, like Bork said, if there is such a thing as a clause somewhere in the Constitution which does not have a discernible “original intent” – if neither the text nor the historical context could tell us what a certain clause was intended to mean – then that clause has to be meaningless, and not a rule of law that anyone will have to obey. Thirdly, let’s stick to the topic of the Equal Protection Clause – since my comment above about that clause is what you responded to – would you please tell me this: are you suggesting that it is possible that some intelligent, informed people do not know whether the EPC was intended to guarantee racial equality?

I have multiple reasons why I say that the EPC should be limited to ONLY racial equality. First of all, the EPC cannot be taken literally. All levels of government engage in massive displays and massive amounts of unequal treatment of people. Imagine what it would be like if no level of government were allowed to “discriminate” against anyone based on age, or income level, or educational attainment, and on and on. All human beings have multiple characteristics that distinguish them from other people, and a theory that no government in the United States is allowed to treat people unequally based on any and all of the characteristics that people have is laughably impossible. So the EPC has to mean something narrower than what it says. Racial equality is the only known purpose to that clause.

Quite clearly the Supreme Court is cheating. It is applying to very different [rational basis] tests while claiming to apply only one. This type of cheating has serious consequences. … [T]here are no standards at all to restrict the Court’s discretion. … But there are important reasons to be concerned about the Court’s sloppy reasoning in Romer. While the Supreme Court’s decision was widely viewed as a victory for gay and lesbian rights, it is a victory that is narrow and perhaps Pyrrhic. While Romer is something of a breakthrough for gays and lesbians, the case really represents in change in sentiment rather than a change in law. Gays and lesbians are still at the bottom of the equal protection hierarchy. … By formally adhering to rational-basis scrutiny, the Court left gays and lesbians at the mercy of judges’ sentiments about fairness and morality. … When a law discriminates against racial minorities, women, illegitimate children, or even white men, these groups are entitled to a substantial degree of constitutional protection. Gays and lesbians are still entitle to nothing.
By silently increasing the level of scrutiny in Romer the Court failed in its most important role, that of chief interpreter of the Constitution. … [T]he Romer case has left the law of equal protection even murkier than before. …
This is not equal protection of the laws. It is the very opposite of equal protection. It is a loose conglomeration of state legal principles that are, in fact, ignored, and unstated de facto rules that allow courts to apply different standards to different groups at different times based on judicial sentiment rather than judicial reason. The courts can do better than this. (Gerstmann, The Constitutional Underclass; Gays, Lesbians, and the Failure of Class-Based Equal Protection, 1999, pp. 133-139.)

Lee Epstein and Thomas Walker, co-authors of Constitutional Law for a Changing America, take note of the fact that the Court has explicitly laid out three different legal standards for adjudicating equal protection cases on their docket -- the rational-basis test, the heightened scrutiny test, and the strict scrutiny test. And after thoroughly explaining those tests, how and when they are used, they say, "To be sure, this three-tiered approach can be confusing, and the Supreme Court as not been clear and consistent in applying the principles." (Page 464.)

Prof. David P. Currie had some long-winded ways of describing the Court's sloppy reasoning when it was first slowly, gradually concocting the rational-basis test, and I won't repeat it all here. But then he eventually took note of the fact that the Court also concocted a three-tiered approach, and concluded his analysis of what was wrong with all of it by saying:

[T]he case of sex discrimination points up the fragility of the Court's initial decision to extend equal protection beyond the racial classifications that the Court once agreed the clause was all about. No doubt it was a little late by the time the gender cases were decided to limit the clause once again to race, but that does not make any less regrettable the Court's original failure to justify turning what might have been a firm guarantee against racial discrimination into a flexible tool for striking down any laws found to be unreasonable by five unelected judges. (Currie, The Constitution in the Supreme Court; The Second Century, 1888-1986, 1990, page 500.)