There’s a new article on SSRN about originalism entitled “Originalism’s Living Constitutionalism,” which Jonathan Rowe pointed out to me because it cites me. The thesis is that there is so much disagreement between people who describe themselves as “originalists” as to undermine the coherence of such a category as “originalists.” Write Colby and Smith, “originalism is a jurisprudential theory with its own living constitutionalism.” This, they claim, undermines originalism’s claims to superiority as an interpretive method.
Although I’ve not read the article, I suspect I might agree with them at least to some degree. Tara Smith’s recent article on originalism has really shaken my confidence in that label. I had hoped that we could salvage the term “originalism” from the conservative positivists like Bork who simply have no rightful claim to that label (since their approach has virtually nothing to do with the actual views of the framers). But as Smith makes clear, approaching the Constitution on an epistemological and ethical basis really renders talk of the “original views” of anybody rather irrelevant, at least as a descriptive term for one’s approach. What I mean is, if we say the Constitution should be interpreted to give meaning to all its terms, or that the word “liberty” has an objective meaning which applies regardless of the subjective notions of the framers, well then why bother calling ourselves “originalists” at all, since the definitive elements of our approach aren’t the “original” founders views of this or that or the other thing. It’s not that the founders views are to be ignored, but that they are simply not the defining characteristic of the approach.
That being said, I think it’s rather silly to say that originalism as a project should be condemned simply because “today’s originalists reach results markedly different from those reached by originalists thirty years ago.” Any intellectual pursuit is going to start out with some stumbling, some errors, some corrections, and so forth. And if Colby and Smith are arguing that this fact contradicts originalism specifically, then they’re playing a linguistic game of “gotcha.” Originalism—at least, as far as I know—is entirely compatible with the idea that our understanding of the text will improve as scholarship advances. What originalism rejects is the idea that the very meaning of those terms will change with time, or that we can consciously decide to revise the way we implement the text due to changing factual circumstances. None of this is vitiated by the fact that originalists disagree with each other over interpretations, or that they have revised their understanding of the text upon deeper consideration. Originalists admit that a subject’s understanding can grow. That doesn’t mean that the objects of our understanding are in flux.
The bottom line is, there’s nothing inherently unoriginalist about dialectic, or about me saying “Robert Bork has no idea what he’s talking about, the actual views of the founders were about natural rights,” and Bork saying “no, they were positivsts,” et cetera, et cetera.
My friend Ed Brayton reports on an ACLU victory against what must be the most unconstitutional law I have ever heard of. As Brayton explains it, the law "provides [that] voter party preference information collected during the primaries" may be disclosed "to the Republican and Democratic parties but makes it a crime to give that information to any other party." Party preference information is a statement by the voter which declares which party that voter allies himself with, and it was collected by the state in the January 2008 primary. The law then requires the state to give this information to the chairmen of the Republican and Democratic parties, but criminally prohibits conveying it to any other party. How many hotpoints of Constitutional law could a statute possibly hit? What possesses a legislature to enact a law like this? Isn't there a single lawyer in the state house in Michigan who could raise his hand and point out a few of the flaws in such a proposal? (Hat tip: Alan)