Originalism and Democracy
In a March 22, 2017, New York Times’ op-ed, LSU law professor Ken Levy argues against the jurisprudential principle of 'originalism' that was famously championed by Antonin Scalia and is now advocated by his potential replacement, Neil Gorsuch. Prof. Levy gives a fair summary of what this jurisprudential principle entails:
Originalism says that if the words [of the Constitution or any law] are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification….
Prof. Levy claims that originalism is motivated by a specific concern:
The main motivation for [originalism] is to limit judicial discretion. As Justice Scalia argued, if judges are not bound by words and history, they will inevitably exceed the limits of their judicial authority and, like “activists” or “super-legislators,” make the Constitution say whatever they want.
Here, too, Prof. Levy is fair. Originalists are indeed worried about judicial overreach — but why? The reason is because it undermines the essential conceit of democracy: that the law derives its authority from the consent of the governed, not from the wisdom of the black robe. This fundamental principle of law requires that at the time of enactment, the law means whatever the people who enacted it think it means. Any other view would upset the basic idea that the 'voters' determine what the law is. Sometimes these 'voters' are the electorate (in a referendum) or legislators (as to statutes) or ratifiers (of the Constitution), depending on the law at issue. In the case of the “cruel and unusual” prohibition in the Eighth Amendment (Prof. Levy's example), "cruel and unusual" must have originally meant what the people who voted for it thought it meant.
I hope that much is uncontroversial. But then Prof. Levy argues that sometimes we should vary from the original meaning of the text: when the meaning of the text’s individual words change, then the meaning of the law should change, too. Indeed, he goes further – he argues that the founders used language that was particularly susceptible to change in order to allow future generations to adapt the text of the Constitution to their needs.
The founders were not dummies; they knew that society would evolve in unforeseeable ways — morally, socially, politically, technologically — and that this inexorable evolution might well bring about unforeseeable applications of the same words. For example, instead of using the imprecise phrase “cruel and unusual” to lock in any particular punishment (like the death penalty), it stands to reason that they meant it to lock out whatever punishments future generations deemed unconscionable. So true originalism — genuinely following the founders’ intent — requires us moderns to interpret constitutional language in light of our own, not their, moral and linguistic norms.
It is interesting that Prof. Levy casts his vision as “true originalism" – thus seemingly acknowledging that interpreting the Constitution first requires "genuinely following the founders’ intent.” Prof. Levy rushes past this common ground, perhaps afraid it will be considered a concession.
In any event, Prof. Levy says the “cruel and unusual” clause was intended to “lock out whatever punishments future generations deemed unconscionable.” So the founders did not intend to prohibit only then-existing punishments that were cruel and unusual, but also as-yet-undreamt-of tortures that might be invented in the future. By identifying a class of illegal punishments – rather than itemizing specific ones – the founders allowed the reach of the “cruel and unusual” prohibition to vary over time, according to society’s technological progress, changing moral intuitions, etc.
There's something very attractive about that idea... but it begs the crucial question: just how is a judge to determine the meaning of "cruel and unusual," if he cannot just rely on what the founders thought it meant? Prof. Levy advocates "principled pragmatism."
Principled pragmatism says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as we moderns interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and — yes — the public policy consequences of each possible decision. Once these additional factors are taken into account, they may still point in the same direction as the ratifiers’ intent. But they may also point in a very different direction.
Prof. Levy claims this is not "pure subjectivism" as critics worry, but it is not clear what constrains the judge under this rubric. The judge is supposed to rely on his own intuitions not just as to legal matters like the "structure of the Constitution," but also as to highly political matters like the "public policy consequences" of the decision. What judge can resist doing what he thinks is best, under such circumstances? Indeed, what would give him any reason to resist?
In fact, Prof. Levy has engaged in a rhetorical sleight of hand that transforms his reasonable-sounding premise into a democratic nightmare. He initially argued that we must update the meaning of the text of the Constitution so that it conforms to the consciences of "future generations" – but then he interprets this to mean that judges should do what they think leads to the best result. In other words, rather than let the Constitution vary with the consciences of future voters, Prof. Levy wants it to vary with the consciences of future judges. The phrase "future generations" sounds like he just wants the law to reflect contemporary conditions, but then he shifts the power to determine what those conditions are from a representative body (Congress, a constitutional convention, etc.) to an unaccountable one (the federal judiciary).
Prof. Levy has not only failed to address the judicial overreach concern of originalists, he in fact embodies it. He thinks judges should craft decisions that yield the right public policy consequences, in their opinion. The result is "pure subjectivism": judges simply do what they think is right, without regard for whether their decisions have the consent of the governed. Prof. Levy does not attempt to show that this form of judicial totalitarianism ever had the agreement of the founders or any other majority of Americans.
But perhaps an even more damning rebuttal to Prof. Levy is that the purported problem he claims to solve is actually not a problem at all. There is in fact no controversy about ‘updating’ the meaning of the Constitution to reflect contemporary conditions — when "future generations" already agree as to how those new conditions should affect Constitutional principles.
For example, the First Amendment guarantees “freedom of the press,” which originally meant citizens’ freedom to utilize a printing press. Yet it is uncontroversial that this blog is protected by the First Amendment, even though no printing press was used to create it. This is because there is social consensus that technological development has expanded the Constitutional meaning of “press” to include all kinds of publishing, from Twitter to skywriting to typewriters to laser printers. Prof. Levy's "future generations" agree that "freedom of the press" includes blogging.
But “future generations” do not agree whether the death penalty is “cruel and unusual” – and if future generations do not agree, why does an individual judge (or five justices) get to 'update' the meaning of the Constitution to reflect his (or their) own beliefs? Obviously judges do that today, but their misappropriation of democratic power is slowly transforming the judiciary into an unapologetically political beast. Down that path lies the death of the rule of law, as each decision becomes motivated by political rather than legal criteria. Some would say we are far down that path already.
The only solution is to return to the basic tenet of originalism: judges must interpret the law as it was actually enacted, not the law they think might be enacted if it were enacted today. Where there is genuine social consensus that modernization requires an 'updating' of the law's meaning, doing so will be uncontroversial. But when such consensus is lacking, it demonstrates that a judge has no authority to 'update' the meaning of the law – and proves that the task is instead one for the appropriate voting body.
If you wish to discuss this post with me, I'd welcome receiving an email from you. Please email me at language.on.holiday@gmail.com.
P.S. We usually think of this problem as one affecting primarily Constitutional interpretation, where it has more purchase because the text is so old. But judicial activists are beginning to 'update' the meaning of regular statutes just a few decades old. In a recent decision, the Seventh Circuit determined that the Civil Rights Act of 1964 prohibited discrimination on the basis of sexual orientation – something neither the Congressmen who enacted the law nor any subsequent majority of Congressmen have supported. So why should it be the law now, if we still claim to live in a democracy?