March 6, 2009

Professor John McGinnis on originalism.

Here's the audio from yesterday's event at the UW Law School, which was sponsored by The Federalist Society. McGinnis speaks for about 20 minutes, then I do a 10 minute commentary, and the rest is questions and answers. McGinnis contends that judges should interpret the Constitution according to its original meaning because this kind of interpretation will produce better consequences than other approaches to interpretation. He depends heavily on a belief in the superiority of a text produced by a supermajority — i.e., the Constitution — as understood by that supermajority. He chooses an interpretive methodology based on what is most likely to work out for the best even as he would exclude judges from thinking in normative or pragmatic terms as they decide particular cases.

35 comments:

Balfegor said...

McGinnis contends that judges should interpret the Constitution according to its original meaning because this kind of interpretation will produce better consequences than other approaches to interpretation.

Am I wrong in thinking this is an atypical justification of originalism? I've always understood it to be the preferred means of interpretation simply because it broadly promotes uniformity in application of the law, across time, even if, in particular cases it may conflict with lawyers' common understanding because non-originalist interpretations have dominated the jurisprudence (e.g. if Thomas were to achieve his long held dream of restoring the commerce clause to its proper place).

Ann Althouse said...

Yeah, usually originalism is justified more or less by originalism -- the original intent was to interpret it by original intent or some such circular thing.

traditionalguy said...

I see originalism as an attempt to keep the rule of law for an entire country. The Russian "scholar who is now predicting the break-up of the USA later this year, just as the USSR broke up 20 years ago, leaves out the common submission to the rule of law over the 48+1+1 "States. there may be 5, or 7, Regions in the USA with competing interests, as the Russian Professor has noticed; however, there remains our strong ties under the Constitutional compact ( Abe Lincoln, with Sherman's help, forever wrote that in the Blood of a certain regional interest,thereby forever settling one part of constitutional interpretation to be Dead Certain and not a Living Document). Therein lies the strongest arguement not to play with this Living document illusion when not absolutely necessary. We need originalism in arguments of the Supreme Court to keep our will to maintain our unity alive. A famous God/man said "a house divided against itself can not stand". On the otherhand we could trade Marin County California to China for a shipload of nuclear waste and win that bargain bigtime.

Balfegor said...

Therein lies the strongest arguement not to play with this Living document illusion when not absolutely necessary. We need originalism in arguments of the Supreme Court to keep our will to maintain our unity alive.

I think that puts a bit too much significance on the Supreme Court and the institutions of the central government. If Americans are a people, like other peoples, we must have some sense of common national identity above and beyond the accidental qualities of the State. The French have remained French under their Kings, their Bonapartist usurpers, and under a succession of republics. The Koreans have remained Koreans under Chosun, the Japanese Empire, and a succession of republics, constitutions, and military dictators. American culture and identity is, perhaps, less marked and less compelling, but if it's so weak that the only thing that binds us is a shared allegiance to some words setting a government above us, why should we be a single country under a single government? There's less logic in it than in the Hapsburg Empire.

G Joubert said...

Seems to me that originalism is the one and only way the Constitution was supposed to be interpreted. Why else have expended the time and effort to write and include Article V? It could have just said that the document can be amended by decree of the Supreme Court whenever it sees fit, if that's the power they supposedly already have. And why bother amending it at all anyway if the Court by majority vote can simply reinterpret away any amendments they choose to not like? Nah, a commitment to interpretation by finding the original intent the only thing that makes any logical sense.

Peter V. Bella said...

Originalism assumes that political agendas, opinions, or ideology have no place in juris prudence.

Justices base their opinions on their personal/political/ideological view. Justices are appointed and approved based upon their political ideology or perceived ideology as it relates to law.

Smilin' Jack said...

He chooses an interpretive methodology based on what is most likely to work out for the best even as he would exclude judges from thinking in normative or pragmatic terms as they decide particular cases.

Screw "most likely"--if you know what is the best result in a particular case, why not just use the interpretation that gives that result? Let a hundred interpretations bloom! Consistency is the hobgoblin of little minds.

traditionalguy said...

@ Balfeagor...I really can't understand how the Hapsburg Empire stood as long as it did.I do know that Americans who submit to the rule of law do so out of their faith in the Goodness of the American traditional social order which wills (Think Andrew Jackson ) to protect them from a European point of view (Think Roman Empire as Charlemagne used that term) which sees Americans as serfs stuck to land which is owned by the Better classes that must govern them. Query: does Idaho State create serfs not qualified to rule, while Yale/Harvard creates the Better class eligible to rule us using the Living constitution illusion to brag about their "intellectual superiority". And what college did Andrew Jackson attend anyway? Talking forever around this core issue is only a sophisticated filibuster.

TMink said...

Smilin Jack wrote: "if you know what is the best result in a particular case"

We are a nation of law, not a nation of preference.

Trey

Lance said...

Consistency is the hobgoblin of little minds.

Emerson actually said "A foolish consistency is the hobgoblin of little minds." He's been proved consistently right.

Chris said...

G. Joubert

Aren't you just +1ing Professor Althouse's post in the comments?

Originalism is a relatively strong place to argue from in the sophistry that is legal argument. Still, for someone whose dispute is adjudicated today, the law is what the judge says it is. Today.

+1 Balfegor's second comment.

Chris said...

This might be politically incorrect but I wonder if there is any correlation between religion and originalism?

Lem said...

Very good Professor.. I just have one question.

Am I to understand you talked contemporaneously w/o the aid of a teleprompter?

In my Judge Judyndian sort of way.. I liken originalism to a teleprompter.. Sure it helps avoid the Dan Quayle and Bush 43 mistakes... But its also a kind of straightjacket that may discourage the kind of discourse that is capable of persuasion.

The kind of discourse that can lead to a better constitution. If you follow me ;)

blake said...

Yeah, usually originalism is justified more or less by originalism -- the original intent was to interpret it by original intent or some such circular thing.

Whereas non-originalism is argued more-or-less by non-orignianlism -- the original intent doesn't matter so therefore the original intent doesn't matter?

raf said...

If the constitution is not bound by its language, why is any statute so bound? Why not let judges just rule according to their own sense of what would be a good outcome? Oh, wait....

Lem said...

Actually if I'm to understand our Secretary of State,Emely Bazelon and Arianna Huffington ... Simply bad things are not so bad after all.

You can allways fix it later....

Lem said...

bad things in the constitutional context... prohibition (of course).. women could not vote and... I'm forgeting something, oh yes.. African Americans.

Lem said...

Sorry If I'm sloppy.. Unlike, YO my man Yoo.. I'm not a lawyer.

To me the amendment process is as much anti-originalism as it is constitutional originalism of the first order.

Thats what I meant by fixing it later ;)

mark said...

In my mind the justification of originalism is that it brings legitimacy - the ties that make 300 million of us cringe and accept the pronouncements from 9 unelected Supremes and live with it, even if we disagree with the outcome. At least we hope that originalism had a small say in the outcome. Without that hope, it's pitchfork time anytime we don't like one of their rulings.

Lem said...

The problem with the Supremes is not entirely of their making.. IMHO The congress has simply wimpishly seceded their constitutional prerogatives over to the Supremes.

In some ways you cant blame this guys (and gal) for wanting to "do more" if you will.. They got lifetime appointment, they got the final say (unless by amendment)

Its a miracle all of them don't turn bleeding harts as soon as they sit. Mighty tempting to be liked.. to be liked and Supreme?

Send me an angel.

Kirk Parker said...

Balfegor,

"There's less logic in it than in the Hapsburg Empire"

Hold on a minute. It's not dedication to "some words", it's dedication to the concepts, such as the notion that governments "deriv[e] their just powers from the consent of the governed". The Hapbsurgs had nothing remotely like that.

Lem said...

Maybe seceded is not the right word.. more like abandoned their post.. they deserted the constitution. The congress has deserted the constitution.

Given the Congress INTENDED constitutional (we the people) supremacy, you think that they would welcome a wrestling match over abortion on demand and the rest of it.

They are a bunch of cowards.

Chris said...

Without our heroin addict like hunt for narrative who knows what we'd be. I confess an admiration for doctors who are taught to put things in black boxes.

traditionalguy said...

@ Chris...Historically the power of Special Men to administer a centraly governed Empire has been a dream that wont die in Eu-rope. To a large extent that dream has been kept alive by the Roman Empire's last organ of a central goverement administration by highly educated men using great political skills. The Roman Papacy. Their descriptive Catholic means they rule everywhere. That is a fine culture and many have enjoyed the peace and the mercy that it brings to areas where it has ruled. However, the American Republic has deep roots in another tradition of the unconquered protestants from Northern Ireland and Scotland where the Roman empire never conquered the inhabitants. Those men believe in ruling themselves and have bowed the knee only briefly to English rule from the1670's to 1770's when George Washington made them in America into his Army to destroy the English rule by Devine right Kings over here. The courageous leadership of Andrew Jackson kept that tradition dominant and the Civil War confirmed that American men intend to govern themselves in their own republic without interference from Royalty or Philosopher Kings sending out decrees under the authority of a "Living Document". Trash that tradition at your own risk! So, yes their has always been a "religious" tug of war going on between the advocates of these two positions.

Simon said...

Chris said...
"This might be politically incorrect but I wonder if there is any correlation between religion and originalism?"

Justice Scalia denies it, but I've wondered (and others have wondered, see generally, e.g., George Kannar, The Constitutional catechism of Antonin Scalia, 99 Yale L.J. 1297 (1990)) whether being brought up to think about one authoritative text -- viz. the Bible -- in a certain way disposes one towards thinking of authoritative texts generally in a particular way. On the other hand, you have to keep in mind that Justice Brennan - in some ways the evil opposite of Scalia - was a Catholic, too.

Without naming names - the regulars here know who I have in mind - I can say that of the Judges I admire, who I believe are doing an outstanding job in precisely the right way, many are Catholics. Some aren't, however, and some of the very worst judges are Catholics. Correlation, then, may be too strong a word. Predisposition may be closer to the mark.

Simon said...

Ann Althouse said...
"the original intent was to interpret it by original intent or some such circular thing."

Of course Jeff Powell exploded that theory twenty plus years ago. Originalism is not the theory of original intent. Unless McGinnis is an outlier - I honestly don't remember, although I've read many articles by him - he doesn't care about the original intent any more than Scalia or I do.

vnjagvet said...

How is SCOTUS's proper method for interpreting federal statutes different from its proper method of interpreting the Constitution. Does the Marshall dictum that "it is a Constitution we are expounding" imply that these methods are somehow different, and if so, how?

John Bragg said...

On the Hapsburg empire, for most of its existence it was more like a holding comany than a nation-state.

For most of the history of an Austrian city like Graz, the emperor was more relevant as the absentee Duke of Styria. If he won or lost a war as King of Spain or Duke of Burgundy, subjects felt much the same as employees of a conglomerate observing the fate of a far-flung division--this could harm or hurt us financially (taxes), rather than this hurts our identity group.

Also, for most of its history most people didn't have an emotional connection to their state or national group. "Subjects", not "citizens."

TelecomEsq said...

"Yeah, usually originalism is justified more or less by originalism -- the original intent was to interpret it by original intent or some such circular thing."

Snark noted. What's the alternative? Arbitrary, subjective "interpretation" by unelected judges and law professors--the process that brought us Dred Scott and its substantive due process progeny and all of the subsequent parodies of principled decision making, all of which have made a mockery of the rule of law.

jsr said...

I suspect that on some level most of us formalists believe that formalism leads, instrumentally and pragmatically, to better results over the long haul.

Frauenhoffer said...

Activist judges who wish to be political players rather than referees should ponder the fate of Big Media.

Journo class also wanted to be players and kingmakers,to decree what issues were legitimate and what opinions were acceptable.

And how did that work out for Dan Rather?The Rockey Mountain News?
Not so hot,huh?

The media is dying,not because of the cost of newsprint or new technologies(and if they really are as scary smart as they've boasted,how did they miss that?).
Media is dying because they squandered their credibility by being politically partisan.

If judges insist on being political activists rather than honest umpires,they must also accept that they will be seen,and treated,as politicians,with all that means.

Tex the Pontificator said...

Contracts are construed according to the intent of the parties, to eh extent it can be ascertained. Statutes are construed according to the intent of the legislature, to the extent it can be ascertained. Why ever would the constitution not be construed according to some analogous standard? Original public meaning makes sense to me as the relevant standard, as the one most nearly analogous to the standards used for contracts and statutes.

Joe said...

Originalism is icky and full of contradictions, but the alternatives are much worse. The major point of the constitution was to prevent tyranny. In that regard it's failing miserably as seen by the massive overreaching of Congress. On major point of the separation of powers (and federalism) isn't to make government more efficient, but rather to make it less so.

The consolidation of fiscal power is an obvious contributing factor in the current economic situation. It is ironic, therefore, that that the response is to consolidate power even more. However, to be surprised would be to be naive--the primary function of all power structure, especially governments, is to obtain more power at the expense of everything else.

Chris said...

I don't think that McGinnis is so unusual in trying to justify originalism on normative grounds--Randy Barnett argues, for instance, that rule-of-law normative virtues are the main basis for originalism. Non-originalists also frequently make a straightforwardly normative case for rejecting originalism--Cass Sunstein's new book argues that originalism might produce good consequences in certain possible worlds, but we should reject originalism because we're not in one of those worlds. For my money, I don't think these sorts of arguments can be conclusive, because I think it's an open question whether our actual Constitution promotes the rule of law, or good consequences.

Ann's right, though, that a lot of originalists rely on things like Madison's views of the matter--e.g., his 1824 comment, "I entirely
concur in the propriety of resorting to the sense in which the Constitution was
accepted and ratified by the nation. In that sense alone it is the legitimate
Constitution." A lot of non-originalists claim similarly that only non-originalism can make sense of contemporary constitutional law. These 2 claims are important, but they only show that originalism, or non-originalism, is not self-defeating. Originalists won't really care that contemporary constitutional law is inconsistent with their view of constitutional meaning, and non-originalists won't really care that their view of meaning is different from Madison's.

So what should we do? Figure out what the Constitution means by "this Constitution" in Article VI. That'll give us a constitutional self-definition and tell us (if we swear the Article VI oath or argue to those who do) what should be interpretively supreme.

OldGrouchy said...

So, are we to presume that words are what we say they should mean or are they what is said? After all, it's merely a definition, isn't it?

However, it's easy to amend the Constitution by passing getting 43-states to agree with the change! So, what's the big deal?