Originalism and Monarchism

I had a very interesting interaction on Twitter earlier today with Samantha Hancox-Li (a very good follow, I might add). She had posted that “judicial supremacists are just reskinned monarchists.” We ended up having a bit of a back-and-forth about how this is true notwithstanding that there is a valid and important role for a constitutional court and the practice of judicial review in a thriving democracy. But there was another issue that seemed to me entailed by the discussion, and I wanted to write about it at somewhat more length. It jumps off from the last line of her second tweet:

“The Constitution is not a fairy contract signed by our ancestors but a flame passed down by them.”

Huh.

I quite like that image! I think it captures something very profound about originalism, and the vision that animates it, and why it’s bad. And it got me thinking some thoughts, some of which I had had before and some of which I hadn’t.

The one I had had before is about the difference between originalism and textualism. This is a very confusing topic, because (I would assert) originalists love to confuse people about exactly what the difference is. For present purposes, let us say that originalism is the idea that the Constitution ought to be interpreted and applied in accord with the intentions of the people who enacted it, whereas textualism is the idea that only the words themselves, and not the intentions behind them, are law.

Now this is a very contentious set of definitions. Originalists have spent, oh I dunno, forty years trying to convince everyone that they actually believe the second thing. The first thing, “original intent” as the touchstone, is associated with Edwin Meese, and popular originalist mythology has it that Antonin Scalia, that great textualist, vanquished Meese in an intra-originalist battle sometime in the 1980s. This is advantageous for originalists: it lets them paint their opponents as arguing, not against the legal force of “original intent,” but against reading the document in the language in which it was written, and therefore in favor of letting sheer semantic drifts in the meaning of words over time change our fundamental law. That sounds really dumb!

For various reasons, though, I think it is pretty demonstrably false that our conservative originalists today, up to and including the ones on the Supreme Court, think that only the words themselves are law. But that’s a whole bigger issue that I don’t want to get into right now. So just take my word for it, for now.

Anyway, it seems to me that, so understood, originalism and textualism reflect two very different views about what we do when we adhere to the Constitution — in the extreme, through the act of judicial review and the nullification of acts which are deemed not to have adhered to it. For the originalist, what we are doing when we follow the Constitution is keeping faith with the people who made it. The people themselves, mind you, as people, as human beings who lived in particular times and places.

For the textualist on the other hand, when we follow the Constitution we are not really having any kind of relationship with the Founders themselves. Rather, we are honoring the commitments they made through their fundamental law. And, importantly, we are honoring these commitments not just because the Founders made them, but because we ourselves have chosen, through our own free volition, to take up those commitments: that is, to view the Constitution the Founders created as our own.

(There is an interesting, and increasingly pressing, theoretical question about whether the People today can actually be understood to have adopted the Constitution as our own through our own free volition. But I am interested in internal questions of interpretive theory today, so set that aside as well.)

Now this way of viewing the divide is much less favorable to the originalists! For the model of keeping faith with the Founders-as-people seems to suggest that we, today, exist in a political relationship with the Founders, and moreover that it is not an equal one: we owe them our faith, they owe us nothing. The imbalance is presumably explained by their already having bequeathed us this wonderful Constitution; it is for that gift that we owe them our debt. Still, justified or not there’s a semblance of our being ruled over by dead people, and that’s kind of weird.

But I think the originalist would object to the account I have given. They would say that originalist interpretation is perfectly consistent with the second account, the one in which sovereignty resides with the People today. For in choosing to take up our ancestors’ commitments, they might say, we must necessarily be taking up those commitments as they were understood by the people who made them.

I think that is again pretty clearly wrong. If sovereignty is ours, then the operative deed is our deed, not the Founders’. What matters therefore is how we understood (understand?) that deed, what we understand ourselves to have committed ourselves to. Now this is not to say that the Founders’ intentions count for nothing in understanding the Constitution as an act of contemporary popular sovereignty. The Constitution is not just any old set of principles and commitments; it has a history to it, and that history is presumably a significant part of what we mean to associate ourselves with in taking the Constitution as our own. (And that is not even getting to the modalities that are not principally concerned with understanding the Constitution as a written legal instrument.)

So far these are all thoughts I have more or less had before, though I don’t believe I’ve ever written them up. The new thought takes this line of reasoning just a step further. I have been talking about how we understand the Constitution, what we are doing when we adhere to it. But what were the Founders doing by adopting it? How did they understand their deed? It seems to me that again there is a pretty significant dichotomy between different ways that one could understand the act of constitutional creation.

On one view, a constitution is a means by which to bind one’s descendants. The people framing the constitution have some set of values and beliefs. Of course (ed.: citation needed!) they have no need to codify those values in a constitution solely within their own time, for they will presumably also reflect those values in their democratically enacted legislation. But their descendants might not share those values. Thus the people of today, understanding X to be bad, write the prohibition on X into fundamental rather than ordinary law, preventing future generations who might want to do X from doing so.

But there’s another view. Perhaps a constitution is a means of binding not one’s descendants but oneself. Perhaps people adopt constitutions because they do not entirely trust themselves to adhere to their own values. Or perhaps they believe that, in order for relations among citizens to be free and equal, the power that people exercise over one another must be limited in certain regards. Thus they adopt constitutional limits not for their descendants’ future but for their own present.

Of course these differing conceptions of why one might adopt a constitution have different implications as to what the founding generation would want from future generations. The founders whose purpose is to bind their progeny would certainly want said progeny to be originalists, to keep faith with them — in short, to be bound. And it’s not particularly subtle that this is how, say, Scalia saw the purpose of constitutions.

But the founders whose primary goal was to bind themselves, well, the accomplishment of their objectives does not depend on what future generations do. They might well hope that their descendants would have similarly republican beliefs, and would adopt and honor a set of commitments embodying those beliefs. But if future generations were to do this, it would not be because their ancestors had bound them to it: it would be their own independent act, a reflection only of their own values.

This does not, I suppose, really matter. If we think that the people of one age have no just authority to bind the people of another, then even if that were what the founding generation wanted, it would not entail that originalism was the correct method of interpretation. But it struck me as an interesting way to shift the perspective. If constitutions are things we make for ourselves, for our own times, then there is no reason why they would encumber future obligations with a debt of faith.