I’ve been holding onto this post for a long time as it is one of those “philosophical” type posts that interest me a lot. Unfortunately, it’s not only densely written, it’s long – Rob Natelson is a good writer and by golly, I wanted to bring it to you. However, I’ve not discovered a good way to do so that allows me to bring value so I’ll just say “read these snippets and then go read the whole thing in context“. It IS important to we, American Citizens, re-learnhow far our legal system has strayed from the intent of our young Founders.
Understanding the Constitution: Originalism Wasn’t Invented by Partisan Republicans
“Although originalists disagree among themselves over some details, they share one core belief: The courts should read the U.S. Constitution much the same way they read other documents … [understanding] a document the same way the document’s creators understood it.”
Without the discipline of originalism, judges can, and do, inject their own preferences into the Constitution. In other words, they become unelected lawmakers. Occasionally, we aren’t certain about the exact meaning of a constitutional phrase. In such cases, even originalist judges must exercise discretion.
<snip>
James Wilson was one of our leading Founders. In a lecture at what is now the University of Pennsylvania, he made the following observation:
“Every plausible notion in favour of arbitrary power, appearing in a respectable dress, is received with eagerness, protected with vigilance, and diffused with solicitude, by an arbitrary government.”
Translation: not a fan.
The truth of his comment is shown by the plethora of professors who pander to arbitrary, centralized power. Because the Constitution controls and limits power, they often spread nonsense about the Constitution. And, sometimes, it’s nonsense on stilts. One illustration of nonsense on stilts is the claim that originalism was a partisan political idea cooked up by conservatives during the Reagan administration. The truth is that, although the label “originalism” is new, the idea it represents is very old.
<snip>
Unlike Greek and Roman legal systems, the English legal system was the direct ancestor of our own. For English lawyers and judges, the guide for interpreting legal documents was “the intent of the makers”—that is, the understanding of the parties. If an English judge had to determine the meaning of a phrase in a contract, he asked: “How did the parties to this contract understand this phrase? And if the evidence isn’t clear on this point, what was their most likely understanding?”
Similarly, if the disputed language appeared in a parliamentary statute, the judge asked: “How did the members of Parliament who voted for this law understand the phrase? Or, if the evidence isn’t clear on this point, what was their most likely understanding?”. This is pure originalism. And it was in full flower 500 years ago, if not earlier. In a 2007 scholarly article, I explained how it worked in practice (pdf).
This is a good place for a related observation: Many people confuse originalism with textualism. They are not the same thing.
Originalism is applying a document according to how its creators understood it. Textualism is a particular way of achieving that result. Textualism sometimes is appropriate and sometimes not. Textualism means searching for the parties’ understanding from the text of the document only. A textualist doesn’t consider outside evidence, such as prior history or testimony about what the parties intended.
Like I said, go read the whole thing. I will leave it as an exercise for the reader to think about the last part of his post under “Later History“. C’mon back afterwards and tell me what you think in the comments.
