In our discussion of constitutional originalism below, I’ve been asked a very good question — Why should we choose originalism rather than any other interpretive strategy? Even if we grant that we need a consistent interpretive framework, it doesn’t necessarily follow that originalism is the best of the bunch. Below, I’ll explain why I think this way.
Consider the following from Randy Barnett, who has done more to influence my understanding of the Constitution than anyone else:
The Constitution is a law designed to restrict the lawmakers. Although the Constitution itself may have multiple purposes and functions, its “writtenness” has many fewer… [W]ritten constitutions are in writing for a reason. Primarily, [a constitution] is put in writing to better constrain the political actors it empowers to accomplish various ends. In particular, it is put in writing so these actors cannot themselves make the laws by which they make law…
Under the fiction of popular sovereignty this separation is absolutely critical for, in its absence, the legislators, like the king before them, are supreme and cease to be the servants of the people. (Restoring the Lost Constitution, p 103.)
If the meaning of a constitution is not in some sense limited, then the government is in no sense limited by the fact of having a written Constitution in the first place. We can argue all we want about the practical restraining power of a piece of paper, up to and including the rather trivial observation that writing alone doesn’t do a damn thing. But if we don’t even attempt to signal some limits to power, then we’ve given up the project of restraint before it has even begun. Writing down the constraints we would like to have is not the last step. It’s the first, and it’s no less necessary for all that.
Vagueness favors arbitrary government. This is true above all in governments like ours, where it is held that we as a nation have already consented to be governed. What, after all, did we consent to? Surely we didn’t consent to “whatever.” Even government by consent of the governed — itself a principle that we all agree on — implies that there is a constant, binding set of limits on government action. Where might we find those limits? In the text of the Constitution, of course.
Admittedly, even with the clearest of constitutions there will be need for construction to resolve ambiguities. But there must also be some meaningful degree of constraint in our interpretive work. Without it, the Constitution becomes a mere list of suggestions, or possibly a fetish object, but it is certainly neither a morally binding limit on government power — akin to a contract — nor a guarantee of individual rights.
But why choose the original meaning or meanings of the text, out of all of the various meanings that might be supplied? Barnett answers:
Given that the meanings of words can change or evolve, in searching for the ‘generally accepted’ or reasonable meaning within a particular community of discourse, at what point in time do we look for the meaning? […] With a constitution, as with a contract, we look to the meaning established at the time of formation and for the same reason: If either a constitution or a contract is reduced to writing and executed, where it speaks it establishes or ‘locks in’ a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text and thereby to undermine the value of writtenness itself. Writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment.
For this reason virtually all written contracts require modifications to be in writing… Meaning must remain the same unless it is changed, and changes require the same degree of writtenness and formality as the original writing. (ibid, 105-106)
The original meaning was the meaning, at the origin. A method was also offered to change the Constitution. If that method hasn’t been used, then we are left with the original meaning. It can’t be any other way, because the only presumptively legitimate method of change hasn’t been used.
It might be objected that amending the Constitution is very difficult, and that the amendment process can’t keep up with the fast pace of modern life. For two reasons, I don’t find this a terribly weighty objection.
The first reason is that enacting the main body of the Constitution was approximately as difficult as passing an amendment today. Indeed, given the multiple ways one might enact an amendment, amendments are perhaps even easier to pass than ratification was. Given that amendments have an equal legal force to the original document, and that they can even strike out passages from it, we should wonder, rather, that amendments are not harder to pass than they now are. In this context, it seems downright strange to complain that amending the Constitution is too hard.
The second reason is that amendments really should be difficult. These are not mere laws; they are laws by which other laws are made. They ought to require a higher degree of demonstrated consent than mere laws. Obviously, how much harder may be a subject for debate, but “approximately as difficult as the original Constitution” doesn’t seem unfair in light of their relative legal power.
But can originalism be any basis for a morally binding consent? Even with all the odious passages in the original document? Barnett writes:
Some may argue that the original scheme as formally ratified was not ‘good enough’ to create laws that bind in conscience or, even if it once was, it would be no longer in today’s world. Only because the system we now have differs in important respects from the original meaning of the written Constitution does this lawmaking process provide the assurances that legitimacy requires…
Whatever its merits, were this claim to be made explicitly, it would improve the quality of the discourse concerning the appropriate method of constitutional interpretation and the value of originalism. For those who make this claim would have to admit that they have deviated from the original meaning of the Constitution as formally ratified and then identify their criteria of legitimacy and how the resultant system can produce laws that are binding in conscience on the individual. They would also have to explain how the values provided by a written constitution can be preserved when the writing can be contradicted without formal amendment…
[I]f the original meaning of the Constitution is not ‘good enough,’ then originalism is not warranted because the Constitution is itself defective and illegitimate. This represents a rejection of the Constitution, however much an improvement it may be. (110-111)
A further objection might run like this: The original Constitution was horrible, because it excluded women and enslaved blacks. The Civil War Amendments were a big improvement, of course, but then along comes Justice Scalia, who opines that “women” were never intended to be “persons” under the meaning of the Fourteenth Amendment, and should not be considered as such. And if he’s right, then it’s still a pretty lousy Constitution, and still should not be viewed as having much moral force.
The simple answer is that Scalia is wrong. The Fourteenth Amendment extended rights not to men, but to “persons.” It excluded women from voting, of course, and in our constitutional history it was the first such explicit exclusion. The act of excluding women from voting was profoundly unfortunate, it was corrected later — and it remains highly instructive today. Indeed, that very exclusion demolishes Scalia’s argument. Here’s why.
Had the Amendment’s authors wanted to exclude women from due process, from privileges and immunities, and from equal citizenship, the language to do it was very obviously available to them — why, they used just those exclusionary terms when it came to voting! But they did not use them for the other clauses. This can’t possibly be an insignificant choice.
Is our highly gender-egalitarian society what the authors of the Amendment intended? In all of its consequences? The question itself is silly. Answering it requires that we posit in these people — wise though many of them were — an omniscience not granted to men or women. They lived in an era of, as we see it, great contradictions. They wore those contradictions for the most part lightly, and were untroubled by them. They deserve a good measure of shame for it. But they don’t deserve to be scorned for using general language, language that helped make today’s world possible.
We must assume that they intended this language to have some effect. That is enough for our purposes. Why, after all, should we twist the plain meaning of the word “person,” when the word, both then and now, may denote either a man or a woman? And when they were surely aware of it?
A dialogue might help explain things:
2011: I’m reading this text, and it says “persons.” I take that to include men and women on an equal footing. After all, that’s the definition of a “person” in both your era and mine.
1868: That’s not what I meant, though. Women aren’t equal citizens with men — no one could possibly believe that!
2011: Would you consider writing down the differences, then? I mean, here you are, articulating the rights and privileges of all people, and it might just so happen that I turn to your text for guidance about what to do with the fairer sex. Can you help?
1868: There is no need. Virtually everyone understands and agrees to the differences between the sexes.
2011: What if, in time, no one understood or agreed to them?
1868: I wouldn’t care to speculate.
2011: So you wouldn’t care to write it down? Like, in the Constitution?
2011: Then we can’t possibly hold ourselves bound by your unwritten rules. You want us to do it? Put it in writing.
Unwritten understandings aren’t a part of the Constitution. This is true whether those understandings favor the left, as with the New Deal jurisprudence, or the right, as with the 1868 view of women. We may need such understandings to get by — for good or ill — but two things are certain. First, they will change over time. And second, in case of conflict, the text trumps them. A moral truth remains a moral truth, even if it’s written by a moral imbecile.
 Yes, yes, coverture. I have other cupcakes to fry at the moment.