One Person's Opinion

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Wednesday, March 19, 2003
So many people characterize the debate about the proper role of judges as between those who believe in enforcing the Constitution as originally intended and enforcing a Constitution that "evolves" to fit present-day norms that it is sometimes easy to forget that this is, at the very least, a gross simplification of jurisprudential debates. (Justice Antonin Scalia, of course, is a prime offender at this-- he'd like to believe that he is doing nothing more than neutrally applying the principles laid down in 1787, and that all of his ideological opponents are guilty of inserting their personal values into the document, so he repeatedly gives speeches where he endorses this intellectual framework.)

Clayton Cramer of the Volokh Conspiracy is another offender. In this post, he argues that only the original intention of the Constitution matters, denying that consistently applying such a standard could ever lead to disagreeable decisions and citing with approval an 1897 case that he says endorsed the originalists' method of interpretation of the Constitution.

It is important to note that Cramer goes farther than Scalia and other originalists. Scalia is often up front about the fact that his view of the Constitution can produce disagreeable results. Indeed, he considers it a badge of honor that he is able to reach results he personally disagrees with because his view of the Constitution requires him to reach such results.

Cramer responds to the oft-made argument that an originalist interpretation of the Constitution would remove needed protections against sex discrimination by saying the following:

"The rights of women? The Framers didn't write very much into our Constitution about sex. There is nothing in the Constitution that requires women to have a second class citizenship. There are no Constitutional prohibitions on sexual equality in the workplace. If there were, it would require a Constitutional amendment to remove those prohibitions. But I repeat: the Constitution is astonishingly free of language that puts us in a position of having to choose between original intent and equality of the sexes."

That statement is simply flat wrong. While there is nothing in the Constitution that requires women to have second class citizenship, the effect of an originalist interpretation of the Constitution would be that the Equal Protection clause of the Fourteenth Amendment would be interpreted to apply only to race discrimination, and not sex discrimination. In other words, there would be no constitutional impediment, as there is now, to governmental discrimination against women. Original intent means no constitutional requirement of gender equality, period. So we do have to "choose".

Speaking of choice, there are other legal protections for women that are found by courts in the Due Process clauses of the Constitution, including the rights to use contraceptives and to have abortions. Those rights would also go away if an originalist interpretation were adopted (indeed, those decisions are Justice Scalia's main targets). So again, originalism equals less rights for women.

Moreover, the very 1897 case that Cramer quotes from, Robertson v. Baldwin, indicates exactly how originalism would lead to disagreeable results:

"The first 10 amendments to the constitution of the United States, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply embodied certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the constitution, there was no intention of disregarding the exceptions, which have continued to be recognized as if formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons...."

Of course, in the 1960's the Warren Court held that many libels against public figures are protected by the First Amendment; I am not sure if laws against blasphemy still exist or have been struck down, but such laws would be clearly unconstitutional as both impediments to free speech and establishments of religion, and the Supreme Court has greatly contracted the scope of the obscenity exception to the First Amendment, a development one can observe by going to the adult section of one's local video store. Pure originalism of the sort that Cramer cites with approval from the 1897 case would invalidate all of these doctrines.

I don't know how Cramer feels about guns, but many on his side of the political spectrum (and a few on my side as well, myself included) believe in a more robust Second Amendment than has traditionally been enforced by the Courts and is referenced in the 1897 case Cramer quotes. So again, originalism can lead to disagreeable outcomes.

I might add that I also do not share Cramer's interpretation of the Robertson case. The Court is not saying that all Constitutional provisions are to be interpreted based on their understood meaning at the time they were adopted, but only that certain provisions of the Bill of Rights were codifications of common law rights with understood exceptions. Nothing in the quoted passage of Robertson indicates that original intent is the only proper means of interpreting the Constitution.

The truth is, originalism is one of many tools to interpret the Constitution. It is of limited utility, because original meaning is difficult to discern, and more importantly, because the nature of a Constitution is different from a statute or a contract. There is a strong argument that the Framers were setting down general principles, and intended that future generations apply those general principles in a manner that fit the times. Indeed, with respect to many issues, there is no framers' intent. The framers had no opinion as to what principles of free speech would govern a world-wide computer network, or whether the government would have to show probable cause before employing a wiretap. But there is a First Amendment which guarantees free speech and a Fourth Amendment that requires that searches and seizures be reasonable, and it is quite plausible that the Framers intended that we determine the legal rules that engender the best "fit" between those general legal principles and the specific problems of our times. For my money, that is the original intent of the Constitution.

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