Understanding the Constitution: Originalism Wasn’t Invented by Partisan Republicans


Above: A case involving an original legal method was reported by the Greek historian Polybius (c. 200 – c. 118 BC), but the case arose even earlier.

This test was first post in The old times September 14, 2022.

Several Supreme Court justices – most often Clarence Thomas – describe themselves as “originalists”. In a before period time column, I answered the question: “What is originalism?” I wrote:

“Although the originalists disagree among themselves on certain details, they share a fundamental belief: the courts should read the US Constitution the same way they read other documents…understand[ing] a document the way its creators understood it.

Without the discipline of originalism, judges can, and do, inject their own preferences into the Constitution. In other words, they become unelected legislators.

Sometimes we are not sure of the exact meaning of a constitutional phrase. In such cases, even the original judges must exercise discretion. But this discretionary power is narrower than the free rein assumed by non-originalist judges.

Serve an arbitrary power

James Wilson was one of our main founders. In a lecture at what is now the University of Pennsylvania, he made the following observation:

“Every plausible notion in favor of arbitrary power, appearing in respectable garb, is eagerly received, vigilantly guarded, and solicitously disseminated by arbitrary government.”

The truth of his comment is demonstrated by the plethora of professors who bow to arbitrary and centralized power. Because the Constitution controls and limits power, they often spread nonsense about the Constitution. And sometimes it’s nonsense on stilts.

An illustration of nonsense on stilts is the claim that originalism was a partisan political idea concocted by conservatives during the Reagan administration. The truth is that although the label “originalism” is new, the idea it represents is very old.

Old originalism

Originalism has been the standard way of interpreting most documents for centuries.

The historian of ancient Greece Polybius (vs. 200-118 BCE) describes a legal dispute where a key issue was the meaning of the word “abduction” in a particular law. When a party to the trial argued that a suggested interpretation “was not the intention of the legislator”, the magistrate allowed the party to explain why. Although the magistrate ultimately ruled the other way, the conclusion of the case is that the magistrate recognized the controlling force of “legislative intent”. (Polybius, “Histories” 12.16.9).

Another example: the Byzantine-Roman Emperor Justinian (527-565) ordered that Roman law be codified, that is, organized into a more usable form. The result, the Body Juris Civilis, is the foundation of modern European and Latin American law. The corpus juris also influenced our Anglo-American common law in many ways.

A passage in the corpus jurisbased on the comments of a prominent third-century commentator, explains how to interpret certain contracts: The reader should consider both the words of the contract and the chest of drawers for men— that is, the intention or understanding of the parties. (Justinian’s Digest, The passage gives an example that shows how intentional testimony can alter the apparent meaning of words.

Unlike the Greek and Roman legal systems, the English legal system was the direct ancestor of ours. For English lawyers and judges, the guide to interpreting legal documents was “the intention of the makers”, that is, the understanding of the parties.

If an English judge had to determine the meaning of a sentence in a contract, he would ask: “How did the parties to this contract understand this sentence?” And if the evidence is unclear on this point, what was their most likely understanding? »

Similarly, if the disputed language appeared in a parliamentary law, the judge asked: “How did the deputies who voted for this law understand the sentence? Or, if the evidence is unclear on this point, what was their most likely understanding? »

It’s pure originalism. And it was in full bloom 500 years ago, if not earlier. In a scientific paper from 2007 I explained how it works in practice (pdf).

Originalism ≠ Textualism

This is a good place for a related observation: many people confuse originalism with textualism. It’s not the same thing.

Originalism consists in applying a document according to the way its creators understood it. Textualism is a particular way of achieving this result. Textualism is sometimes appropriate and sometimes not.

Textualism means seeking understanding of the parts from the text of the document only. A textualist does not consider outside evidence, such as past history or testimony about the intent of the parties.

The question of whether outside evidence should be considered in a particular case is an age-old problem. It arises in many areas of law: thirty years ago I considered the issue in a book on land cessions—”Modern real estate deed law.”

A much more famous commentator, the late Justice Antonin Scalia, pointed out that individual members of Congress and staffers often attempt to distort the interpretation of a pending bill by injecting their own ideas into legislative history. . Therefore, according to Scalia, when reading modern federal statutes, we should ignore legislative history and examine only the enacted text.

In other cases, however, including constitutional interpretation, outside evidence is often quite reliable and worth considering. So in constitutional interpretation, it’s not a good idea to be a pure textualist. English jurists had a Latin maxim that said:Qui haeret in literal haeret in cortex» – « Who sticks to the letter, sticks to the bark. This means that reading the text only gives you a superficial understanding of the document. You also have to look at the context.

Early American Originalism

Even before the US Constitution was written, judges began to apply originalist principles to state constitutions. An example is the 1782 case in Virginia Commonwealth v. Cato. Six of the eight justices who decided the case were prominent American founders, and all eight justices interpreted their state’s constitution according to the understanding of its “makers.”

In Cato, the “makers” of the state constitution were the legislature that adopted it. However, the “creators” of the United States Constitution (as the founders made clear) were the states ratifying the conventions that converted the recommendation of the Constitutional Convention into the supreme law of the land.

In 1803, after the United States Constitution had been in effect for 14 years, the Supreme Court decided the famous case of Marbury v. Madisonwith Chief Justice John Marshall writing for a unanimous court.

In marbury, the court had to interpret a federal statute. Then he had to interpret the Constitution to see if the law was consistent with the Constitution. The tribunal applied originalistic methods to both: first, it interpreted the law according to “the intention of the law”. Next, he interpreted the Constitution’s grant of “judicial power” according to “the intention of those who gave that power”.

Later history

Originalism remained the standard way of interpreting the Constitution well into the 20th century. However, during the 1930s and 1940s, “progressive” Supreme Court justices (most of whom had no prior judicial experience) replaced originalism with methods of reading the Constitution that exalted federal power in the detriment of individuals and states. (See my Epoch Times series“How the Supreme Court rewrote the Constitution.)

In other words, the methods applied by the “progressives” are the new partisan inventions. Originalism is the norm bequeathed by the ages.


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