These days, popular and scholarly debates about constitutional interpretation and the role of the courts in our public life are dominated by the clash between originalists and living constitutionalists. Originalists hold that the Constitution should have a fixed meaning, that it ought to be interpreted according to the mind of those who wrote and ratified it. Living constitutionalists contend that our fundamental law should evolve, that it should be understood in light of contemporary values.
This constitutional divide closely corresponds to our political divide. Conservatives tend to be originalists, and liberals tend to be living constitutionalists. This is not very surprising, given the general dispositions of the people in question. Conservatives are inclined to revere the past and to treat it as authoritative. It is no wonder that when they become constitutional lawyers, they will be attracted to originalism. Liberals are interested in progress, in moving beyond a past that they regard as morally inadequate. It is reasonable that liberal lawyers would be inclined to the living Constitution.
This relationship between political orientation and preferred method of constitutional interpretation naturally makes us wonder whether politics is really driving the decisions of those who are entrusted with authoritatively interpreting the Constitution. Is constitutional law just politics by other means? This is a troubling suggestion, because we generally expect judges to be the neutral servants of the law, doing its bidding and not using it as a vehicle for their own substantive judgments about what is good or just.
This troubling thought is thrust upon our minds all the time by the partisans of both approaches to constitutional interpretation. Conservatives regard the living Constitution as a kind of theoretical Trojan horse by which liberal judges can engage in the sort of social engineering to which ordinary voters would never consent. For their part, liberals often suggest that originalism is a just an invention of conservative judges who want to justify conservative constitutional outcomes.
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Both sides may have a point. No doubt we are all tempted to choose interpretive tools that reach outcomes we find congenial. Nevertheless, the liberal charge is weak in a very important respect. Conservative judges and constitutional scholars may be generally happy with the outcomes delivered by originalism, but it is impossible to seriously charge that they have invented originalism with a view to achieving any particular political ends. Rather, originalism is the traditional American approach to constitutional interpretation, pre-dating by centuries the present generation of conservative jurists, and largely uncontroversial until recent decades.
It is evident, for example, that John Marshall—the “Great Chief Justice,” who led the Supreme Court throughout its formative period—sought the original meaning of the words of the Constitution in his celebrated opinions for the Court. Certainly Marshall never claimed that the words could evolve to mean something new, nor did anyone on the Court in this period suggest such a thing.
Some proponents of the living Constitution spuriously appeal to Marshall’s famous remark in McCulloch v. Maryland (1819) that the Constitution is “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” But Marshall was clearly not calling for later generations of judges to read new meanings into the Constitution. He was instead defending a fixed interpretation of the federal power capacious enough to let future Congresses address the nation’s changing problems through the exercise of the legislative power.
Originalism, then, is not just an invention of conservative jurists interested in attaining conservative political results. It is rather the traditional approach to constitutional interpretation—one that modern liberals have, for their own political reasons, tried in recent decades to discredit and replace with a living Constitution.
Indeed, it does not go too far to say that originalism as an approach to constitutional interpretation is simply a matter of common sense—the approach we would certainly choose if we brought no political predispositions to the interpretive enterprise. This is the lesson of Ilan Wurman’s fine study, A Debt Against the Living: An Introduction to Originalism. As his subtitle indicates, Wurman does not attempt a comprehensive account of and defense of originalism—a project that could grow to an enormous size, given the massive amount that has been written on this topic. Instead, he offers a helpfully brief, and an admirably clear and engaging, explanation and defense of originalism—drawing on, popularizing, but in some cases also deepening arguments made by earlier scholars.
Originalism seeks to understand the Constitution in light of its original public meaning. As Wurman shows, this is not a politically motivated choice so much as it is the ordinary way that we would seek to understand the meaning of any written document—and indeed any communication at all. Communication is a public act, and language is a public phenomenon, the means of conveying ideas to others in a shared world of discourse. Thus we ordinarily interpret any utterance in light of the public meaning of the words used in it. Accordingly, when we turn to interpreting a communication from the past, we seek the public meaning of the words during that time period, because that is the meaning we have to assume that the writer or speaker intended and that his listeners or readers would have understood.
Proponents of the living Constitution contend that the Constitution, a document written and ratified in the past, ought to be interpreted in light of contemporary conceptions. That can sound attractive based on the results that some might want to achieve. But if we put those results aside and ask only what is a sensible approach to understanding a document from the past, we know that we must seek the original public meaning and that we will be led into the most ridiculous blunders if we do not. To take one obvious example, if we read a letter from the seventeenth century and find someone referred to as “a gentleman,” we will go far wrong if we think that this means he is a nice person—which is what we would mean today. It means rather than he belonged to a particular social class, that he came from a particular kind of family. We would, of course, go even more wrong if we applied a twenty-first-century meaning to a seventeenth-century description of a person as “gay.”
If we are trying to interpret—to correctly grasp the meaning of—a document from the past, then originalism is clearly the right tool. Here, however, we are talking about not just any document but about a constitution, which is a kind of law. This raises another question and another difficulty. A law does not just communicate ideas and information to us but purports to exercise authority over us. A law tells us what we must do. And it immediately occurs to anyone—even to children, as parents know all too well—to ask: why should I do what you tell me to do?
This question is raised by the defenders of the living Constitution. As they have famously asked, why should we be governed by the “dead hand of the past?” Although originalism is certainly the founding-era approach to constitutional interpretation, the challenge posed by this question also has deep roots in our history. It was raised by no less a figure than Thomas Jefferson, who held that one generation has no authority to bind future generations. In 1789, Jefferson, in a letter to his friend James Madison, held it to be “self evident” that “‘the earth belongs in usufruct to the living;’ that the dead have neither powers nor rights over” it, and that “by the law of nature, one generation is to another as one independent nation to another.”
This Jeffersonian objection might appear decisive. After all, we live in a modern democracy, in which tradition has very little authority. Fortunately, Wurman provides an answer to Jefferson’s challenge—an answer coming from no less a modern and American figure than James Madison.
Madison responded to his friend’s claim by making an important distinction:
If the earth be the gift of nature to the living, their title can extend to the earth in its natural state only. The improvements made by the dead form a debt against the living, who take the benefit from them. This debt cannot be otherwise discharged than by a proportionate obedience to the will of the Authors of the improvements.
Of course, the political societies we inhabit, and the systems of law on which they are based, are not the gift of nature but “improvements” devised by our predecessors. Therefore, in Madison’s view, they have a presumptive claim on our obedience.
This sounds rather Burkean. If Madison is to be taken as a guide—and who can deny his authority?—then a kind of conservative submission to inherited norms as binding on the living is compatible with our modern, democratic, and rights-based regime. Indeed, Wurman notes that Madison’s conservatism is more consistent with the Declaration of Independence than is Jefferson’s radicalism. After all, the Declaration says that men should cast off traditional authority not because it has no power to bind them at all, but only when necessity compels them to do so.
Once again, Wurman’s argument reminds us that originalism—here meaning not just an interpretive approach, but the idea of being bound by the authoritative decisions of past generations—is not so much a politically motivated, partisan choice as it is simple common sense. The living constitutionalist asks: why should we be governed by the dead hand of the past? We may respond: it happens all the time. Being bound by the dead hand of the past is the most ordinary thing in the law, in the most commonplace private matters as in the grandest public ones.
There is presumably no more common legal instrument than a will. It is based on the supposition that the dead have a right to control us—that, contrary to Jefferson and consistent with Madison, they have a right to be obeyed in regard to the “improvements” they have made. Turning from the private to the public, every functional nation treats the legal norms it has inherited as presumptively binding. It does so out of a natural respect for those who built the society the present inhabitants are blessed to inherit. And it also does so because the alternative would be chaos—constant efforts to establish, disestablish, and then reestablish the public order, a process as likely to end in tyranny as in freedom.
This is not to say, of course, that we may never depart from the old ways. As Madison teaches us, reason points not to an absolute obedience to the past but to a due obedience. The Founders themselves chose to depart from the old ways because the abuses of the existing government compelled them to do so. But that grave decision—which affects so many cherished interests and principles—must surely be the decision of the nation itself, exercising the amendment process that the founders established and used themselves, and not the choice of unelected judges, who are no wiser than anybody else about what conditions would justify such a change.