David E. Weisberg: Originalism is Dead…Long Live Identicalism!Michael Ramsey

May 05, 2017

David E. Weisberg (Independent) has posted Originalism is Dead…Long Live Identicalism! on SSRN. Here is the abstract:

The late Justice Antonin Scalia deplored ill-founded Court opinions purporting to establish that “my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” He argued strenuously against what can be called juristocracy—rule by judges—and in favor of the rule of law. His theory of Originalism, with its presumption of time-dated original meanings for words and phrases in the Constitution, was designed specifically to restrain jurists from crossing the sometimes indistinct but always important boundary that separates interpreting the Constitution from amending it.

But, in formulating Originalism, Justice Scalia botched the job. The theory is irreparably flawed, because it generates:

The Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

The Paradox ensnares the conscientious Originalist in an infinite regress.

The close association of the idea of an objectively-determined rule of law with Originalism ultimately serves only to discredit the former. Those who would advance the rule of law and resist a “living” Constitution ironically but actually work against those goals by propping up an inherently flawed Originalism.

Originalism was founded on the rebuttable presumption that words and phrases in the Constitution have time-dated original meanings that differ from their current meanings. We can avoid all of Originalism’s flaws, and still retain an objectively-determined approach to constitutional interpretation, if we adopt the converse presumption: words and phrases in the Constitution are presumed to have original meanings that are identical to their current meanings, unless the contrary is established. I present such an approach, which I call Identicalism.

Nobody tell Jonathan Gienapp! (See here and here).

Seriously, treated just as a rebuttable presumption (in which case the label "identicalism" is a bit of an overstatement), I think this proposal is as a practical matter how many originalists proceed. That is, they look first at the text itself and see what it seems to mean in modern terms; then they look to see if historical evidence suggests that the meaning has shifted over time, so that the modern meaning is not actually equivalent to the historical meaning. For example, we think that each state gets to elect two Senators regardless of population because (a) that's what the text says, given its ordinary modern meaning, and (b) we are not aware of any possible historical meaning that would suggest otherwise. As a practical matter, I'm not sure that's wrong.

I can see at least one difficulty, however. The modern meaning of some constitutional provisions may be heavily influenced by what the Supreme Court has said they mean, even if what the Court has said has little relationship to what we would otherwise think of as their common meaning. For example, we may now think that the phrase requiring "due process of law" precludes some substantive results that a legislature might reach. But that's just because the Court has said so. Absent the Court's intervention, the modern meaning of "due process" would likely be limited to, well, "process" — not substance. But arguably the Court's equation of process and substance did not arise from any ordinary meaning of the term; it arose because that is how the Court could get to where it wanted to be. To be sure, it's possible that the original meaning of "due process" had a substantive component — that point depends on a historical assessment. But it is not clear why the presumption should run one way rather than another just because the Court has, for its own purposes, intervened.

UPDATE: David Weisberg responds:

I’d like to make three points in response to Mike Ramsey’s comments. First, what I’ve called the Paradox of Originalism is in my mind a theoretical or logical point. Whether or not many Originalists in practice use a method that avoids the Paradox is beyond my ken. Regardless, the Paradox is alogical point, and it will remain valid no matter what practices people follow.

Secondly, although it may well be that “many originalists” as a practical matter presume that original meaning and current meaning are identical (unless the contrary is established), I know for a fact that Justice Scalia himself did not entertain such a presumption—unless, that is, he was intentionally misleading us in his Court opinions and other writings. One has only to read his quintessentially Originalist opinion in Heller (which I discuss in great detail in my paper) to appreciate that Justice Scalia embraced the converse presumption. To determine the meaning of the word “arms,” he consumes an entire page of the US Reports and refers to five secondary literary sources, the most recent of which was published in 1828. Justice Scalia never once cites a modern dictionary in Heller; when he relies on secondary literary materials, those materials are all roughly contemporaneous with the Second Amendment.

Finally, about labels—it is true that, in the end, they probably don’t much matter. But, I myself find it very odd that, if a person acknowledges that an important antique text might have an original meaning that differs from its current meaning, and that same person nevertheless decides to presume that those meanings are identical (unless the contrary is established), he or she would think that “Originalism” is an appropriate name for that interpretive approach. There is, I guess, no accounting for taste.

Posted at 6:40 AM