Originalism and the Constitution, or, Originalism Is Crap
Facts are simple and facts are straight
Facts are lazy and facts are late
Facts all come with points of view
Facts don’t do what I want them to
Facts just twist the truth around
(Talking Heads, “Cross-eyed and Painless”)
I recently asked my grandson what he thought about the expression, “A rolling stone gathers no moss.” He thought for a couple of seconds, and then explained that moss cannot grow on a rock that is moving. Fair enough. That’s a fairly straightforward interpretation of the expression. If most (English-speaking) adults are asked the same question, they might give a literal response, but they are more likely to say that someone who is moving around all the time cannot put down roots, or something similar. In other words, they provide a more metaphorical interpretation of the expression.
Although I have addressed this issue before in an article about Amy Coney Barrett (here), I would like to address it again. For one, it’s just that important. People should be standing on rooftops shouting about this issue! For another, I want to approach it from a slightly different angle and focus more on the two competing theories of reading.
In short, originalism is a theory of interpreting and applying the Constitution. Some have argued that the Constitution is a living, breathing document and that our understanding of it must also live and breath and grow. For example, what would the phrase “all men are created equal” mean in the 21st century? In this interpretation, the argument would be that the authors of the Constitution would have us apply a general idea of equality but apply it to a vastly different demographic and society in 2023.
On the other hand, originalists would argue differently. Sometimes attributed to William Renquist, originalists argue that the Constitution is NOT a living, breathing document. For example, in 1995, the Federalist Society held a symposium on the question of originalism. In his contribution, Frederick Schauer defines “originalism” as:
Prescriptive language is to be understood by reference to evidence of the actual, contemporaneous mental states of the inscribers of the language at issue. (“Defining Originalism,” Harvard Journal of Law and Public Policy, 1996)
In other words, our understanding of the Constitution must be narrowly limited to what the authors of the Constitution had in mind when they wrote the document. It does not live and breathe. It is fixed and static. And it is entirely dependent on our ability to get inside the head of a few 18th century blokes.
In order to understand the “mental states” of the authors of the Constitution, lawyers and legal scholars must use the text of the Constitution, and must rely on contemporaneous materials, such as diaries, letters, and other publications and statements made by the authors.
Now, as Schauer points out, we need to be clear what “originalism” is a theory of.
Is originalism a theory of language? In other words, when someone says something to us, how are we meant to understand it? Can we only rely on what we think the sayer meant, and just how would we ascertain that? A word or an expression can hold multiple meanings (“a rolling stone….”). How are we to know which meaning is meant by the sayer? If my grandson had said that expression to me, he would have meant something different than I would have. Furthermore, even if that person tries to explain what they meant, each of the words used in the explanation carries multiple meanings. It becomes a vicious cycle.
Schauer concludes that “originalism” fails as a theory of language.
He suggests that “originalism” could also be a theory of law. In other words, we could accept that certain terms that frequently appear in legal documents have accepted meanings. In that sense, we would learn the meanings of these specialized terms, and we would be able to understand clearly what the author of the document meant according to those definitions. However, as Schauer notes, that theory fails, as well. He provides the examples of “contracts” and “defamation,” both of which are legally defined, and yet remain highly contentious in actual practice.
Schauer does not delve here, anyway, into the extra-textual elements though those seem to be crucial. Some originalists have argued that we can rely on letters and diaries to put ourselves into the “contemporaneous mental states” of the authors. And here, literary scholars and linguists have a lot to say.
Just as the two previous theories have failed (originalism as a feature of language, and originalism as a feature of law), so, too, does the theory of extra-textual justification.
Let’s return to our phrase, “all men are created equal.” We cannot know what the author was thinking as they wrote that phrase. Did they, in fact, mean all MEN? Did they mean a more expansive use of “men” as all people? Did they include non-landed men/people? Did they include slaves? Former slaves? What did they mean by “equal.” Equality of access or equality of outcome? Equality in all areas of public and social life? We can only imagine what that author was thinking. And because we are from a very different time and place, our ability to imagine what that person thought is limited.
We might, however, find extra-textual evidence (meaning NOT in the Constitution) such as a letter to a friend or spouse (we have copious letters between John and Abigail Adams, for example). And let’s say that the author is writing to his spouse about “all men are created equal.” That should make it clear, right? Hardly.
A) Is the author being sincere and honest in writing to his spouse? Maybe he’s posturing to her. Maybe he wants her to believe (unlike Adams) that he is being inclusive and wants his own wife to feel included under the new laws. Maybe he’s just spitballing ideas and doesn’t yet now what he means. B) Does the author even really understand his own motivations in writing that? Perhaps he’s been influenced other texts he’s read. Democracy and freedom were very much in the air in the late 18th century. Maybe he’s heard the phrase but doesn’t fully understand it. C) Does the author understand how readers of the Constitution would understand that phrase? What does the reader bring to that expression? What is the reader’s understanding of the phrase? It can hardly be a settled legal term (see above) and have a standard meaning in 1776.
Given all of that, it hardly seems that extra-textual writing could reliably shed any light on the authors “contemporaneous mental state.” No, this argument relies on what literary scholars call the “intentional fallacy.” In other words, it is a fallacy to try to understand a text based on what the author intended. It cannot reliably be ascertained.
If the intention of the author cannot be the basis for understanding a written text, then that shifts (as Schauer suggested) to the words themselves. But as Schauer notes, that, too, is unreliable. The meanings of words are not and cannot be fixed. He provides the example of “defamation.” The author may have had very clear intent when writing “defamation.” We don’t know. However, the word “defamation” has had a meaning in law, and when people read the word defamation in a legal document, they know what it means. However, we know that it is not fixed. We know that courts and lawyers and defendants argue all the time on exactly what “defamation” means and whether or not an act is defamatory.
So, then, the third option is in the reader. What does the reader think when they read the text (of the Constitution)? How does the reader understand the words on the page?
And THAT, is an act of interpretation.
In his 1987 book, Before Reading, Peter J. Rabinowitz notes that interpretation can focus on what happens after someone reads a text, or even while someone reads a text. Instead, he focuses on what happens before someone reads a text. He writes:
Readers need to stand somewhere before they pick up a book, and the nature of that “somewhere,” I argue, significantly influences the ways in which they interpret (and consequently evaluate) texts. (2)
In other words, everything about us affects how we read a text. Our socio-economic background, our educational experience, our interpersonal experience, our reading history, and our theory of the world. Each and every one of these things (and many more) will affect how we interpret a text.
I have not yet mentioned the word “canon,” but it is relevant here. For most, I suspect, the word “canon” has religious connotations. Canon has the force of religious law. Canon law prescribes what one can and cannot do within a religion. For many others, “canon” will refer to entertainment franchises. Is a particular character or a particular event part of the accepted world of that franchise or does it break the convention? Not quite the force of law, but similar. For literary scholars, “canon” refers to the set of “sacred texts.” The canon is the set of texts held to be important and worthwhile and, therefore, has weight. (The politics of canon formation are controversial and merit their own essay.) Canon formation is closely related to interpretation, and how a book is, or is not, included in the canon.
What does “canon” have to do with interpreting the Constitution? Well, a lot. Canon carries a lot of weight. Canon is also one of those things that happens before reading. What is considered canon and what is considered NOT canon will affect the way we read and interpret something. Canon means we bring some preconceived notion of the text when we read it. Canon (in two of the above meanings) has a lot to do with the way in which the current conservative Supreme Court Justices are interpreting the Constitution.
Originalism is built upon a theory of language that does not work in reality. The Supremes can sit in their ivory tower and pretend that they are reading the Constitution as it is, but that is a lie. Further, I suspect — though I cannot know for certain — that they know it is a lie. They do not read it as the founders intended, but, rather, as they interpret it.
Their interpretation serves an ideological purpose, and that ideological interpretation is given the cover of a theory that places the culpability on the authors of the Constitution. The originalist Supremes relieve themselves of responsibility and culpability.
We need Supreme Court Justices who understand how to read the Constitution. Too much is at stake to allow them to perpetrate this ruse.
Ritch Calvin is an Associate Professor of Women’s, Gender, and Sexuality Studies at SUNY Stony Brook. He is the author of Queering SF: Readings, Feminist Epistemology and Feminist Science Fiction, and edited a collection of essays on Gilmore Girls. His most recent book is Queering SF: Readings (Aqueduct Press).
