Today is “Opposite Day” here at the League. My favorite subject here is Constitutional law and I typically take a textualist approach to the subject. So in the spirit of the day, I offer here a manifesto of Constitutional interpretation from Okkil Trub, a proponent of Constitutional originalism. Okkil takes on, among other things, the proper scope of judicial review, the exclusionary rule, privacy and seizure rights, and equal protections in a provocative fashion — but in the spirit of the day, I hope in one which proffers an intellectual challenge. So without further ado, Okkil Trub on the way in which judges should interpret the United States Constitution:
When we approach the subject of Constitution, some level of interpretation of the phrases of our highest law is inevitable. This is why when we are called upon to interpret the Constitution, we should do so with an eye towards understanding the original intent of the Framers.
By “Framers,” I mean the consensus view of those people who drafted the Constitution. In the case of the original Constitution, that means the body of people who gathered in Philadelphia in 1787. In the case of the Bill of Rights, that means the First Congress and President Washington. In the case of subsequent amendments, that means the Congress that adopted them. To a significant extent, it means the delegates at the state conventions or the state legislators who ratified these decisions.
The first primary objection to originalism is that the will and intent of the Framers does not matter; that it is for modern people to decide for themselves how to govern themselves. This view is fundamentally and objectionably antidemocratic and unlawful.
The Framers were the spokespersons for the supermajorities that adopted and then amended the Constitution. Their opinions, their ideas, their intentions should be given weight because they carry the legitimacy of being not just the majority expressing its will, but the supermajority expressing its will, engaged in the act of creating law. And the Constitution is law.
The other primary objection to originalism is that it is impossible to determine original intent, that there are too many people, who held too many slightly-varying opinions about the fudged, ambiguous language of politicians engaged in lawmaking, to decide whether to vote for or against the proposed Constitutional language. This unfairly assumes that the language was fudged, or that there was not a commonly-understood meaning to the words and phrases proposed. We have little difficulty understanding modern Amendments – precisely because we are close in historical time to their authorship, rendering the language familiar to us. If there is a doubt, we can ask the amendments’ authors, we can ask the people who voted for the laws.
Consider, for instance, the Twenty-Second Amendment. It takes only a trivial knowledge of history to understand what it means and why it was adopted. Passed in the wake of Franklin Roosevelt’s four sequential Presidencies, clearly it is intended to prevent any person from staying President as long as FDR had ever again. Criticism of FDR included the claim that by remaining President for so long, FDR was setting himself or a successor up to become a dictator, and a balance was struck, looking back to historical precedent of previous Presidents, between the peoples’ ability to select their own leader in the moment, and restricting the ability of any one leader to consolidate too much power for too long and thus eliminating the possibility for political change in the future. Did it apply to President Truman? No, the Framers of the Twenty-Second were quite clear that it did not. Original intent is readily discernible here and not subject to substantial controversy.
It may be a greater challenge to reach further back in history and note shifts in style and language. But that such a task is difficult does not mean it is impossible. And that is how we should approach all Constitutional questions.
Other schools of approaching the Constitution exist. Textualists, for instance, focus on the words of the Constitution; the logical extension of that school expresses itself through “living Constitutionalists” in the mold of the now-discredited William Brennan suggest that it is for modern jurists to “breathe life” into the Constitution. In both cases, the proponents of deviating from the original intent of the supermajority express their own legal preferences, their own policy preferences, their own politics, into their interpretation of the words. Worst of all are the “legal realists” who hold, in essence, that not only does the Constitution not matter, but precedent and statute do not matter – the positive law is best seen as a prediction of what a judge will do in any given case, and at best can still only be seen as an intellectual challenge to a judge to justify a particular result in a particular case.
Such people do not simply ‘adapt’ the principles of the Constitution to a new situation, one which the Framers did not and could not have imagined. Rather, they write a new Constitution by fiat. They deviate from the original principles. And in so doing, they impose their will upon the remainder of the nation, contrary to the expressed will and the articulated, objectively-verifiable law made by not only a majority but a supermajority.
A contemporary, flexible interpretation of these rules distorts and changes the highest law of the country, and creates a situation ripe for danger. The Framers used particular words, yes, but they used particular words to express particular ideas. It is to those ideas which we subsequent generations must be true – or, if we find them to our distasted, it is for us to articulate amendments to the Constitution, and then enact them. This, too, was part of the intent of the Framers.
Textualism and the related doctrines of subjective interpretation substitute semiotics for serious scholarship. They elevate the words of the Constitution above the ideas those words express. In so doing, they render the Constitution malleable to the minds of modern mandarins and create a dangerous ambiguity in the law. By contrast, grounding one’s understanding of the Constitution in terms of the historical context in which it and its amendments were adopted creates an objective, constant, and most importantly predictable vehicle by which to understand the law.
As an example, consider the doctrine of “incorporation.” This is the concept that the Bill of Rights applies to limit the powers of the several States by way of the Due Process Clause of the Fourteenth Amendment. This is not what the Framers of the Fourteenth Amendment had in mind. Very clearly, from a review of Congressional debates and state-level debates on the subject, the issue was ensuring the political, legal, and property rights of former slaves. The sweeping language concerning the equality of all citizens is a great blessing to us all, but it must be seen through the lens of a Congress outraged at the ongoing ill-treatment of former slaves and the people who looked like them and therefore got treated like them. These were the intended beneficiaries of the Fourteenth Amendment. The rights they were intended to benefit and secure were property ownership, access to the courts, and access to the ballot box at the state level.
From there, it was going to be up to the freed slaves, in their capacity as citizens, to effect political change at the local level. They could vote, and that was what the Framers wanted. It was for them to elect politicians to their state legislatures who would enact laws that they found to their favor – or not, because as citizens they, like the rest of society, had to live and abide by what the majority enacted through the democratic process. The point is, the fact that they had once been slaves was to be irrelevant.
Application of the equal protection clause, or the due process clause, to matters beyond race and skin color, goes beyond the problem the Amendment was intended to address and therefore goes beyond the will of the supermajority that adopted the Fourteenth Amendment. While we may normatively prefer equal treatment of people on the basis of, say, sex or religious preference, that is not what the Fourteenth Amendment was about. We can even look to the attempt to adopt an Equal Rights Amendment granting equal rights on the basis of sex – which failed, because an insufficient number of would-be modern Framers did not think that the government ought to treat the sexes equally, at least as a Constitutional matter. If we want to give women equal rights to men, there is nothing in the Constitution stopping Congress from doing so, nor anything preventing proposal of a modern version of the failed Equal Rights Amendment.
Thus, we can see that the original intent of the Framers of the Fourteenth was not to protect women, but to protect against racial discrimination by the states. Had the Framers wanted to ensure against sexual discrimination, they would have said so. To use the textualists’ language, they would have used those words. They did not.
The third criticism of originalism is that it is used as a tissue for the denial of individual rights and a means to preserve the law in the amber of late eighteenth century culture. But this is a false way of articulating what it is all about. Obviously there are old ideas that do need to be adapted to a new world. A wiretap, for instance, may legitimately and consistently with the intent of the Fifth Amendment’s Framers, be characterized as a “search” by Federal law enforcement officers; in today’s world the same thing may be applied to an intercept of an e-mail or cell phone call.
This does not, however, necessarily lead to the exclusionary rule – either with a modern wiretap or with the kind of physical search that could have been done in the 1790’s. The exclusionary rule is a creation of judicial fiat and neither an expression of statutory law supplemental to the Fifth Amendment nor what was meant by the Fifth Amendment itself. There is no articulated “remedy” for an unreasonable search to be found in the Fifth Amendment or any fairly-understood discussion of the issue by the people empowered to have adopted the Fifth Amendment. Rather, it is the fault of the executive for allowing such things to happen and a criticism of his legitimacy. It is, therefore, an incentive to the executive or perhaps the legislature to create rules governing law enforcement, a matter of statute and command; the failure of the government in power to create such rules therefore is a political problem and not a Constitutional one. Statutes being easier to amend and adapt to changing situations than Constitutions, and closer to the will of the majority than judicial rulings, are the appropriate means for dealing with these problems. This is what the Framers of the Fifth had in mind. This is why the exclusionary rule deviates from the Constitution. This is what originalism would protect us from if it were fairly adopted by judicious courts.
The Constitution was meant to be an enduring, constant law – supreme to the rest of the laws. It was also meant to be legislatively modest, because it created a canvas upon which a robustly-empowered, deliberative, and politically responsive Congress would create the bulk of the laws and a temperate President would execute those laws in good faith. And it was meant to be amended, frequently, to respond to changes in economic, military, and other conditions. What it was not meant to do was create an ambiguous volleyball game of power between the three branches of government. The modern game of judicial review superimposed upon Congressional delegations of power to executive rulemaking has created a system of government by fiat that bears only a passing resemblance to democracy; this was not the law of government created by not just a majority but a supermajority of American citizens as their benevolent legacy to us their descendants. A return to a legal regime relying upon a coherent, objective, and consistent vision of the original intent of the people who bequeathed that legacy to us is not only good policy, but the only proper choice for people who claim to be faithful to the principles of democracy.
