At NPR, Nina Totenburg interviews retired Justice John Paul Stevens on his new book Five Chiefs, in which Stevens offers some comments on originalism. As Totenburg reports:
Taking on the much debated idea of original intent, the retired justice disputes the notion that anyone today can, with total clarity, know exactly what the framers intended. Nor, he argues, should that intent be the be-all and end-all of the legal analysis. He points to the First Amendment freedom of religion guarantee as an example, noting that the leaders of the country in 1789 were all Christian, and their concern was to ensure that no particular brand of Christianity got government preference.
The First Amendment's religion clause "wasn't intended to protect the Muslims or the Jewish faith or the atheists," he says. "But once we started to analyze the clause, in case after case, we developed the rules that make it perfectly clear that the principle that was adopted was much broader than the specific purpose of the draftsmen … at the time. It's a principle that goes beyond the original intent."
As a criticism of originalism, this has several problems. The first is that originalism does not claim that we can “with total clarity, know exactly what the framers intended.” Much modern originalism is more focused on text than intent, and in any event all major versions of originalism are about probabilities. History is complicated, sources are incomplete, and meaning arises from complex interactions of many people with different views and interests. The question for originalists is what is the better reading of the text, or which account of the founders’ understanding is the more likely one. Nothing in originalism depends on or claims “total clarity.” Some provisions are clear and some aren’t.
Next, after asserting that we can’t know exactly what the framers intended, the criticism then claims to know (wrongly, it turns out) exactly what the framers intended about the application of the religion clauses to non-Christian faiths. As Steven Hayward at Powerline points out (a bit harshly), it’s wrong on the facts – actually, important members of the founding generation did specifically understand the freedom of religion to extend to non-Christian faiths. But the broader point here is the tension inherent in two common arguments against originalism: that we can’t know what the framers meant, and that the framers intended bad results. One or the other may be true, but they can’t both be true. (My view is that while each is true part of the time, neither standing alone is much of an argument against originalism). But they have such rhetorical force that critics of originalism can’t resist deploying both of them, even though they’re inconsistent.
Finally, and most importantly, the critique misunderstands the originalist approach. Even granting the premise that the clauses were mainly intended to protect Christian faiths, they protect the “free exercise” of “religion” and proscribe the “establishment of religion.” In 18th century language, “religion” was not limited to Christianity; it meant, as it does today, all faiths. Regardless of their own faiths, members of the founding generation were obviously aware of non-Christian “religion.” And regardless of the particular concerns the Framers had, the words they chose encompass “religion” generally. Of course, if there were evidence that the founding generation thought, for example, that suppressing non-Christian religions was consistent with allowing “free exercise” of “religion,” that would suggest that the clause had a narrower meaning. But I’m not aware of any such evidence and none is offered here; I don’t know of a single originalist who thinks the free exercise clause only protects Christian faiths. The establishment clause is trickier to apply, but that’s because there’s some doubt about what “establishment” meant, not because there’s any doubt about what “religion” meant or any doubt that Muslims, Jews and atheists – like Christians – were protected against “establishments.”
In general, originalists don’t object to the application of a principle that “goes beyond the original intent” (meaning the particular concerns that prompted the provision) or is “broader than the specific purpose of the draftsmen.” They object to the application of a principle that goes beyond the text’s original public meaning or its original intended meaning (depending on the form of originalism one prefers).
Justice Stevens is a great man who has given great service to the courts and the country, so I hesitate to say anything too negative. He deserves nothing but honor is his well-earned retirement. But this is a caricaturing of originalism that’s hard to let pass.
Posted at 11:30 PM