Magazine | October 1, 2018, Issue

Originalism: A Logical Necessity

If we don’t stick to the Constitution’s meaning as written, we have no Constitution.

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaningnot the reader’s subjective understanding or preferred reading. And that meaning must be the original meaningthat is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the momentand, typically, to serve the interpreter’s desired political agenda.

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 textthe 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 textis 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.

The Constitution does not go into much further detail, true. It does not say, quite, that judges and other government officials may not change the meanings of the words and phrases of the Constitution. But that is logically entailed by the text’s designation of the written text as authoritative, exclusive, and supreme. If it were otherwiseif officials could effectively change the content of the Constitution’s provisions by “interpreting” them in ways that depart from their original meaningthat would completely undermine the Constitution as written, binding, and supreme law. The document would then not be supreme at all. The interpreter would be. For interpreters to change the meaning of the Constitution’s words is to contradict the authority, supremacy, and exclusivity of the written text. It is also to contradict the Article V amendment process: If interpreters can adopt whatever meaning they want to give the words, they can essentially do an end-run around the Constitution’s exclusive method for changing the Constitution.

The Constitution does not say, quite, that the meaning of its words and phrases is their original meaning. But again, this is necessarily implicit. The Constitution was written at a particular time, and the meanings attached to its words are the meanings they had at that time. (For example, “domestic violence” in the Constitution refers to riots or insurrections, not personal relationships. “Establishment of religion” is about government sponsorship of religion, not church organizations or buildings.) Any other approach invites absurd, anachronistic readings. James Madison wrote that it would produce a ridiculous “metamorphosis” in the Constitution if “the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject.”

No one urging the Constitution’s adoption ever suggested that the meanings of its words and phrases legitimately could change with time or that interpreters could change them. Madison condemned such a view. Alexander Hamilton explicitly denied it in his Federalist essays on the judiciary. The only people ever to suggest such a thing were anti-Federalist opponents of the Constitution, expressing dread about what courts might improperly do.

More important, nothing in the Constitution remotely supports such a meanings-change view. That is the sense in which the absence of any other interpretive instructions in the Constitution is relevant: Nothing in the Constitution contradicts the baseline premise, confirmed everywhere in the Constitution, that it is the words of the text, as understood at a point in historical time, that matter. If the Framers had meant the language of the Constitution not to be understood in its natural sense at the time, or for its meaning to evolve, they would have said so. They didn’t.

But why, some might ask, should we be bound by the original meaning of the words of the Constitution in the first place? Why should we be governed by the dead hand of a 230-year-old document written by (now) long-dead white men?

Good question. And the Constitution does not answer it. That’s because the decision to be bound by a particular constitution is a political decision external to the text of the Constitution. There might be things wrong with our constitution. It might not be a very good constitution. There might be better ways for a society to operate. Reasonable people can argue about such things.

But all that is beside the point. One might not have agreed in the first instance to be bound by a written document drafted more than two centuries ago. But once one has agreed to be governed by the U.S. Constitutionor agreed to accept governing power on the terms conferred by “this Constitution,” to be “bound thereby” in the exercise of power, and sworn an oath of fidelity to itthat decision has already been made. Having signed on to the Constitution, the task of interpretation is to apply its terms faithfully.

In the end, the “dead hand” argument is not really an argument against Originalism as the correct method for understanding the Constitution. It is an argument against constitutionalisman argument for not being bound by a written constitution (or any other) in the first place.

But what do you do when the original meaning of the Constitution is unclear, uncertain, or ambiguous? The answer is embarrassingly easy: Where the Constitution does not supply an answer, the Constitution does not supply an answer. “We the People” get to choose the policies we want, acting through the institutions of representative government.

No honest approach to constitutional interpretation provides clear, perfectly determinate answers to all constitutional questions. (Non-originalist approaches suffer from this problem rather severely.) Originalism at least yields a sensible default rule derived from the Constitution’s text and structure: Where vague or general language admits a range of meaning, actions of representative government falling within that range cannot be said to be unconstitutional. Ambiguity does not supply a justification for courts picking any answer they prefer. Just the reverse: The less clearly the Constitution addresses any issue, the less the justification for judicial invalidation of what elected branches have done. The more unspecific a text, the more room it leaves for democratic choice. This is a feature, not a failure, of Originalism.

Last and least, there is the purported problem of “precedent.” If the proper task of constitutional interpretation is ascertaining and faithfully applying the document’s original meaning, “precedent” can have only a limited role. It can inform, guide, and persuade, but it cannot properly dictate a decision contrary to the meaning of the Constitution’s words. Precedent can advise the interpreter, but it cannot revise the document. The Constitution is supreme; judicial decisions misinterpreting it are not. If the Constitution says one thing and judicial precedent interpreting it says something else, it is the Constitution that must prevail. Judicial decisions cannot amend the Constitution or change its meaning. My position here might sound extreme (and I caution that not all originalists agree with it). But I think it is right.

To treat the Constitution as a source of authority requires that it be taken on its own terms. Those terms overwhelmingly suggest that Originalism is the only proper method of constitutional interpretation. Any other approach severs interpretation from the document being interpreted and saws off the limb it is sitting on. To deny Originalism is essentially to deny that we have a binding, written constitutionwhich is to deny the Constitution itself.

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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