NRPLUS MEMBER ARTICLE H arvard Law professor Adrian Vermeule thinks that we should abandon originalism in favor of what he calls “common-good constitutionalism.” What one will not find in the instantly controversial essay where he makes his case is any rigorous argument against originalism’s substantive claims. Instead, Vermeule offers various sociological and historical claims about originalism that are supposed to show the venerable legal theory is no longer needed, as though conservatives’ embrace of it was always utilitarian rather than principled. To hear him tell it, originalism was “initially developed in the 1970s and ‘80s” to help “legal conservatives survive and even flourish in a hostile environment.” And because it has now “outlived its utility,” we should embrace his alternative.
One can of course quibble with these implausible claims. It is simply not true that originalism was an invention of modern American movement conservatism; the theory’s roots go back centuries in our Anglo-American legal tradition. (To take just one of many, many historical examples, in the English case Millar v. Taylor (1769), Mr. Justice Willes was recorded as saying that, “The sense and meaning of an Act of Parliament must be collected from what it says when passed into law,” and not from extra-textual legislative sources.) But however one receives this canard, originalism’s origins clearly cannot form any basis to suppose that it is wrong on its merits.
Why do we principled, non-consequentialist originalists believe that it is right? Originalism says that texts mean what they meant when originally written. That seems plausible enough. If we were to discover an English manuscript from the 14th century and wished to interpret it correctly, we would not use a modern dictionary or proceed as if it had been written yesterday; we would strive to understand how the words were used at the time the document was written. Nor would we apply our own moral priors to the interpretation of the text; the old manuscript might express utterly wicked views, so to understand it properly we would have to approach it in a value-neutral way. Doing otherwise would mean reading in our own preferred moral views, ascribing them to the writers of the document, who produced it in an entirely different moral and social context. (Vermeule apparently thinks this is appropriate in interpretation. He explicitly says in his essay that “moral principles . . . should [be] read into” general and ambiguous provisions of the Constitution.)
Correct interpretation, then, consists in discovering what a text originally meant. If this linguistic rule does not suddenly change when legal texts are the object, then one who wishes to interpret them correctly must be open to the possibility that they will not always endorse views with which one morally agrees.
But principled originalism is not merely a thesis about linguistic meaning. It is in addition the view that those charged with interpreting legal texts, including our Constitution, ought to do so in accord with their original meanings, at least in part because the linguistic thesis is true. These two theses are logically distinct. For example, one can consistently acquiesce in the general linguistic theory but for consequentialist reasons believe that judges ought to interpret legal texts to yield good outcomes. So there is a gap between originalism’s linguistic thesis and its moral command, one that originalists must bridge.
One way in which originalists have sought to bridge that gap is called the Oath Theory. Article VI of the Constitution provides that “all . . . judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution” (emphasis added). According to the Oath Theory, the constitutional oath generates a moral obligation for officeholders to give legal effect to, or abide by, the Constitution’s original meaning. That is of course controversial. What ought not be controversial is that at a minimum, the constitutional oath requires judges to make a faithful attempt to correctly interpret the Constitution and to give correct interpretations legal effect. That is, correct legal interpretation is part of faithfully discharging the duties of the judicial office, and to say that some constitutional provision means what one knows it does not mean is to fail to support this Constitution.
Versions of the Oath Theory have been defended in the academic literature by Professor Chris Green, among others, and in popular responses to Vermeule’s essay. A more formal statement of the version of the argument I shall defend is as follows:
- The constitutional oath requires that judges make a faithful attempt to correctly interpret legal texts and to give legal effect to those interpretations (i.e. to apply the interpretations to the cases before them).
- Correctly interpreting any text consists in saying what the text actually means.
- What any text actually means is what it originally meant.
- The Constitution is a legal text.
- The constitutional oath requires that judges make a faithful attempt to say and give legal effect to what the Constitution originally meant.
Vermeule thinks that the Oath Theory is circular. But whatever the merits of that charge when applied to other versions of the argument, it clearly does not hold up when applied to this one, because originalism is not in any of the above premises, and one can accept any single premise without being a committed originalist. What is more, we have already seen that the premises are evidenced by arguments that are independent of the conclusion. As I pointed out, originalism includes (3) but is not identical to it, for one can accept that linguistic theory without committing oneself to originalism. So commitment to the Constitution’s original meaning is not entailed by (3) alone.
Constitutional originalism — the view that the Constitution ought to be interpreted according to its original meaning — is found only in the argument’s conclusion, together with the plausible thesis that one ought to comply with one’s oaths as a moral matter. And it should now be clear what work the oath is doing: It bridges the is–ought gap between the linguistic theory and originalism’s moral command. That is, if the linguistic hypothesis is true, then judges are morally obliged to make a faithful attempt to apply originalist interpretations to their cases.
It follows that any reply is going to have to embrace an alternative account of linguistic meaning if the antecedent is denied: the notion that the meaning of texts is not fixed, that they can acquire new meanings alien to the linguistic community for which they were written. This alternative account, in turn, is going to have to explain away the common-sense intuition that a document has to be understood in its own sociohistorical context rather than ours.
Because the interpretation of language is at issue, an account that carves out an exception only for the meaning of legal texts is clearly going to be ad hoc and thus impermissible. The reason why a linguistic account is important is because judges swear to uphold and support a written instrument. Given the oath, Vermeule all but excludes as inadmissible his common-good constitutionalism when he admits that “it is not tethered to particular written instruments of civil law or the will of the legislators who created them” (emphasis added). Judges are bound by the oath to support and faithfully interpret a written instrument that may or may not conform with the moral law or any particular conception of the “common good.”
There is one last objection that should be addressed. Professor Cass Sunstein thinks that the Oath Theory, if true, would mean that non-originalist judges regularly commit “impeachable offenses” because they “act inconsistently with their oath of office.” There is nothing whatever to this assertion. The oath requires that one faithfully discharge one’s duties, which allows for the possibility of sincere mistakes.
If Sunstein promises to teach his students well and he accidentally misstates a rule of law, he has fallen short of that promise, although he is not necessarily blameworthy for the lapse. Judges who sincerely believe that the Constitution’s meaning can change or who sometimes make incorrect decisions are in that same category. So the Oath Theory does not entail that non-originalist judges ought to be “locked up,” as Sunstein would have us think. Only intentional oath-breaking would warrant such a drastic remedy as removal.
Given, as Vermeule concedes, that “originalism has prevailed,” its critics are going to have to deal with the arguments that have been advanced in its defense if they are going to change its supporters’ minds. Until then, originalist judges should continue to uphold the Constitution according to the meaning that was fixed when its provisions were ratified.