Recently there have been calls in conservative quarters to move away from a commitment to originalism in constitutional interpretation. Often these missives do not call for a total abandonment of originalism, merely for relegating it to one tool of many. Whether these calls arise from a frustration with recent applications of originalism (or its close cousin textualism), from opportunism now that six nominally conservative justices control the court, or from a more principled view that other interpretive methods are better in some way, is immaterial. Those who argue that other principles should sometimes take precedence are missing an important piece of the puzzle; originalism is the bulwark of one of America’s first principles, that of self-governance.
When a court interprets a single party legal document, for instance a will, the whole enterprise is intended to suss out the subjective intent of the individual writing the document. While the beneficiaries of a will might have a great deal at stake in the interpretation of the will, what they want is unimportant to the court. They had no authority over the estate. If it is well established that a deceased eccentric millionaire used the term “cookie” to refer to gold bullion he had socked away, and he then directs the executor to divide his “cookies” equally among his descendants, a court would be out of line to insist that this meant only the Oreos in his kitchen. The subjective will of the deceased matters.
When two parties come together to form a contract, its interpretation is supposed to match the subjective expectations of the two parties, but unlike a will, since there are two parties to a contract, the objective meaning of the words is given greater weight. If one party refers to gold bullion as “cookies,” the court will have to determine if the other party shared this linguistic anomaly. If both parties meant the same thing, the contract will be interpreted in accordance with their understanding. If not, the court will likely nullify the contract completely, as the two parties never agreed to the same meaning, even though they agreed to the same words. The subjective will of the parties matters a great deal, but they will have to work hard to show that they intended something other than the ordinary meaning of the words in their contract.
The more parties there are to a legal document, the more likely it is that the ordinary legal meaning of a word will control. In a group the size of a legislature it becomes difficult to determine any intent other than the plain meaning of the words of a law. Courts should be reluctant to determine a legislative intent beyond what is actually contained in the law (the “four corners of the document”) because different legislators likely had different reasons for voting for the same bill. This is the reason for textualism – a reading of laws constrained to the objective meaning of the law as written.
Originalism is a close cousin of textualism. It hews to the same principle – that the meaning of a law or constitution is based on a collective understanding of the words in context. Unless the law defines “cookie” to mean gold bullion, and everyone agrees to the law with that meaning; cookie means a baked sweet. But originalism adds one wrinkle: since most constitutions are very old documents, and the meaning of words can change a great deal over time, originalists look to the objective meaning of the words at the time they were adopted.
Why does any of this matter? Because We The People instituted a government by the consent of the governed. Except where we have amended it, the government ought to run based on an 18th century understanding of the words We The People used to institute a government. If we allow judges to start changing the meaning of the words of our founding documents, we are no longer self-governed. If judges selectively update the constitution to align with their policy preferences, we are a nation governed by men, not laws. Originalism isn’t just an interpretive method – a “hermeneutic” – it is the only way of ensuring that We The People still govern.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.