Quick Notes on Originalism

Tom Bell (who spoke to my Koch Fellow class last summer, and on whom I have a greater-than-small crush), discussing why he rejects Originalism:

We often speak of consent in binary terms, boiling it down to “yes” or “no.” In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This article reviews how a wide range of authorities regard consent, discovering that they treat consent as a matter of degree and a measure of justification. By abstracting from that evidence, we can outline a theory of graduated consent. This article concludes by testing a graduated consent theory against such problems as enforcing standardized agreements, justifying political coercion, and reading a constitution. In those and other applications, a theory of graduated consent can help to advance legal, moral, and economic reasoning.

I like this argument. Bell uses a “contract” frame for my favorite anti-Originalism argument, that a judge cannot claim adherence to “original intent” if he gets to both define the relevant words and decide how they apply. Scalia’s brilliance and command of the language is pretty breathtaking, but I get frustrated with his jurisprudence sometimes when he acts like an intellectual bully, taking liberties with definitions and legal standards that are not true to the purposes of maintaining a coherent body of law.

Here’s a bit of my (fairly poorly rendered) reaction to J Scalia’s “A Matter of Interpretation” (after the jump).

Some branch of government will have to interpret the laws. Be it the President who (faithfully) enforces them, the Legislature that enacts them (and addenda, as necessary), or the Judiciary that curtails them, some branch will dictate what the laws mean. In seeking his originalist roots, Scalia does not deny that the Judiciary is that final interpreter. He accepts an active role in the process – arguably more active than the Framers intended. Indeed Scalia is even more active than the average jurist, because he disagrees so emphatically with what the Court has been writing in the last fifty years.

It is also important to note the distinction between interpreting legislation and interpreting the Constitution. While the Constitution is an enduring contract between the people and The People, legislation creates law. When legislators write a bill, they know that the history will remain intact and, ultimately, become a part of the public record. Judges can decide for themselves whether they care to consider legislative intent. If judges began en masse to ignore it, legislation would likely begin to look different. Legislators would more hotly debate disputed elements, or memorialize the final agreement more clearly.

Similarly, the Framers of our Constitution did hotly debate controversial terms. They memorialized a fairly conclusive text and entrusted it to the ages. Textualism is the most pure method of interpretation, but exceptions – like stare decisis and occasionally considering legislative intent – are inextricably built into this rule.


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