Wednesday, September 28, 2005

Living Originalism

Jonathan Rowe writes of a brand of originalist constitutional interpretation that is free of the absurd Scalia fetish of the 'original intent' while giving full homage to the Constitution as supreme law of the land.

He points out that there are many situations and questions about which the Constitution says nothing, and shows how the standard originalist modus operandi of asking what the constitution's text specifically says about the issue does not usually shed any light. He suggests that it is necessary to go one level of abstraction up from the text to see what the general idea embodied in specific language is, rather than focussing what the Founders' history-specific intent was. As an example of this type of critique, he analyzes the Declaration of Independence.

Let’s focus on the Declaration of Independence. The words state “All men are created equal.” The original intent of the Framers might ask, “how did Jefferson, Adams and Franklin, understand and expect those words to apply?” Did they, for instance, think blacks are covered under the norm? If we asked instead, how did “the people” expect those words to apply, arguably we get an outcome that is far more illiberal than asking the Framers that question. Jefferson et al. because they were more reflective than the average Joe of the Founding, arguably did think that blacks had rights under the Declaration and were thus very troubled by the institution of slavery. Your average Joe of the Founding thought “all men are created equal” meant “all white Protestant Males” were created equal. But again, regardless of how the average Joe expected the words to apply, the Declaration doesn’t say that. It makes no distinction between blacks and whites. Original meaning would instead ask what did those words generally mean in a dictionary sense. For instance, “All” meant “every”; “men” arguably meant “mankind” (which term would include women with men) or “human beings,” and “equal” meant, not “equal in abilities” but rather equal in deserving certain basic rights which governments are in the business of securing. So as a matter of logic, we would ask not, “did the Framers or the people” think that blacks and women had equal rights under the Declaration. The answer is arguably “NO”; but rather, “are blacks and women human beings?” And the answer to that is most certainly yes. Thus blacks and women by nature are entitled to “equal rights.”

This type of common-sense approach to constitution interpretation, I believe, is why we have human beings sitting on the Supreme Court rather than a Westlaw terminal. Overeagerness to depart from the text of the constitution can stem from an underestimation of the value of a functioning system of checks and balances in the face of an issue of the moment; overzealousness in the worship of the word-by-word constitutional text may betray the mistaken belief that the foundation of our government is somehow eternal, rather than temporal. But a philosophy based on 'original meaning' is a practical compromise between the twin needs for order and liberty.

Hat tip to Dipatches from the Culture Wars.


At 11:22 AM, Blogger J. James Mooney said...

I was wondering your thoughts on the Avian Flu of Southeast Asia. Should I be doing something to prepare or is this Y2K all over again?

At 2:36 PM, Blogger fmodo said...

the short answer is that it's something to worry about at a policy level, but there's little you or i as individuals can really do to prepare, other than get vaccinated, and to send home any co-workers who look like they have the flu and are too obstinent to go home themselves (to slow the spread of conventional flu and thus elmininate some of the 'noise' in detecting an outbreak).


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