March 24, 2017

On Originalism

Originalism is a useful tool in determining authorial intent, but apart from that it is self-defeating as a legal philosophy. To understand the intent of the framers of a document by examining the original meaning of the words they used in the context in which they wrote is so obvious as scarcely to need defense. To give a trivial example, if you want to understand a first century BC text in Latin you had best begin by realizing that first-century BC Latin is neither fourth-century BC Greek nor twenty-first-century English, and the cultural contexts of these different languages also play a role in any attempt at discerning what, for instance, Julius Caesar was writing about. Just because the US Constitution is written in English doesn't mean any of the words have the same meaning they do today. I can guarantee that not one of the authors intended "arms" to mean "snub-nose revolvers" or "tactical nuclear weapons" when asserting a right not to be infringed by the state.

So originalism has its purpose as a hermeneutic tool. But it is less helpful — perhaps disastrous — when it is raised to the level of a philosophy, or worse, ideology. The notion that the Constitution should be set in 18th-century stone, and be inapplicable to later circumstances is belied by the fact that the document provides for its own amendment. The framers were intelligent men, aware of the fact that language changes, as do the times. To suspect they regarded their words as inviolable and unalterable, fixed in meaning and application only to what they intended, is to attribute an almost sacral quality to the Constitution, which is nothing short of idolatrous. I will confess I imagine that even some of the authors of Scripture itself would be shocked to think people of a later time would regard what they intended as topical advice to be unalterable divine mandate for all time. How much less would the men of Enlightenment America regard their efforts to be immutable and fixed for all time?

So go to the sources, read the contemporary commentary, study the lexicons and dictionaries by all means. But remember these are but the starting points for understanding and application. If the Constitution is to live — let it live. Do not suffocate it in the bonds of originalism's lack of imagination and understanding.

Tobias Stanislas Haller BSG


WSJM said...

Right again, Tobias, as usual!

It is interesting that today's "originalists" interpret the Second Amendment as apparently meaning "everybody can carry their assault rifle to PTA meetings," having pretty well reversed US v Miller (307 US 174 1939), which actually is an originalist reading of the Second Amendment, the original intent of which clearly has to do with "a well-regulated militia." Those justices who wrote and concurred with DC v Heller, McDonald v Chicago, and Caetano v Massachusetts should just shut their pieholes about "original intent."

Tobias Haller said...

Thanks. It's interesting just how selective and flexible the adherents of Originalism can be. When one's own ox is the one being gored, principle can suffer. As the lawyers say, "Cui bono?"

June Butler said...

Indeed! Did the framers envision as many deaths from gunshot as car accidents? Did they envision cars and automatic weapons of such power as today? I think not. And the originalists brag about their adherence to original intent.