Bench Memos

Law & the Courts

Michael Paulsen on the ‘Logical Necessity’ of Originalism

Having fallen behind on my reading, I missed the excellent series of essays in the recent (Oct. 1) issue of National Review on the theme “In Defense of the Constitutional Order.” I’ll highlight here the piece by law professor (and sometime-but-not-often-enough Bench Memos contributor) Michael Stokes Paulsen titled “Originalism: A Logical Necessity.” Here is an excerpt:

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

But the strongest argument for Originalism is simply that it is the method prescribed by the Constitution itself. It is the only method consistent with taking the Constitution on its own terms, as a binding, written document intended to function as supreme law. It is the only method consistent with the terms on which the Constitution claims to be authoritative. It is the only method consistent with the very idea of written constitutionalism. If what one is doing is interpreting a written constitution intended to serve as governing law, as opposed to engaging in some other project, one must take that constitution (literally) on its own terms.

What does the Constitution say about how it is to be interpreted? Quite a lot, actually: First, it designates a single, specific, authoritative written text as supreme law. This is hugely significant. The Constitution says, in express terms, that it is the written text of the Constitution that has been adopted by the People and that is authoritative and binding. “We the People of the United States . . . do ordain and establish this Constitution for the United States of America,” the Preamble states. “This Constitution . . . shall be the supreme Law of the Land,” Article VI declares. Plainly, the reference to “this Constitution” is to the written text — the words of the document itself. The text constitutes the Constitution. The text specifies the text as the object of interpretation.

Second, by virtue of the specificity of its designation of “This Constitution” as supreme law, the Constitution seems clearly to imply that the written text is exclusive. Nothing not in the document constitutes any part of “This Constitution.”

Third, the Constitution specifies that “this Constitution” — the written text — is binding on judges and all other government officials. Right after designating the Constitution supreme law, Article VI provides that “the Judges in every State shall be bound thereby.” It further specifies that all federal and state officers, of every branch, “shall be bound by Oath or Affirmation, to support this Constitution.” All who exercise authority under the Constitution’s auspices swear an oath of fidelity to abide by the supremacy and binding nature of the Constitution’s text.

Finally, Article V provides an elaborate set of procedures and criteria for making amendments to the text, which then become part of “this Constitution.” The logic of Article V suggests that the document otherwise is permanent and must be taken as is. One must change the words of the text in order to change the content, the meaning, of “this Constitution.”

The conclusion seems inescapable: The Constitution’s text prescribes fidelity to a single, specific, exclusive, defined, determinate written legal text, designed to serve as permanent, supreme law, the content of which can be changed only by a formal process of changing the text itself.

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