Constitutional Originalism, Research Paper Example

Introduction

Interpretation of law is one of the traditional problems of legal science. The study of the concepts of constitutional interpretation in the US allows penetrating deeper into the essence of the constitutional order of this state, understand the causes and sources of its evolutionary development, taking into account the fact that the US Constitution 1787 was the world’s first acting Basic Law of the State. Each of the concepts of constitutional interpretation is based on a certain type of legal consciousness. Legal consciousness (a certain type of it) is a solution (its specific variant) of the basic question of the philosophy of law – the relationship between law and power, law and legislation, law and force.[1][2].

The jurisdiction of the US Supreme Court includes judicial constitutional control and interpretation of the Basic Law, which originate in the case of Marbury v. Madison (1803).[3] Interpretation of the constitutional provisions by the highest judicial body of the US is carried out according to the doctrines developed in the constitutional law of the country.[4]

According to the ‘head’ of the French legal comparativistics R.David, the US Supreme Court “adapted its interpretation of the US Constitution to the ideological currents and economic needs of our time; this contributed to the stability of American political institutions, allowing the US to live under the Constitution, which is very difficult to be changed. The Supreme Court of the United States, through this, appeared able to overcome the hostile attitude that existed before 1936 and was born by the adherence of judges to obsolete principles.”[5]

Obviously, understanding and studying the interpretation and application of the US Constitution means to study its many interpretations that it has undergone, and the numerous laws, decrees, orders, customs that supplement and develop it. Without this, one cannot understand how a provision of the US Constitution is applied in life, it is impossible to clarify the role that it plays in American reality.[6]

In this vein, a comprehensive study of the establishment and development of the US Supreme Court in cooperation with the US political and legal doctrine and, especially, the evolution of the specific powers of American judges, which allowed them to have a direct impact on the political and legal processes taking place in the country, is relevant. This task of research, in turn, predetermines the appropriateness of studying the opposition between originalism – conservative adherence to the text of the Constitution – and non-originalism (activism) – interpretation of the articles of the Basic Law, taking into account the socio-political situation in the country. The paper will consider the very concept of originalism, and the strengths and weaknesses of this approach.

The concept of originalism

Originalism is a tendency in the Court’s activity based on the principles of unambiguity and invariability of the text of the Constitution, as well as decision-making by judges based solely on the interpretation of the text of the Basic Law (Constitution), not taking into account its temporary conjuncture understanding and personal political-social and economic views. Originalism exists since the adoption of the Constitution in the United States.[7]

The reason for the confrontation between activists who advocated reading constitutional provisions from the point of view of the demands of modern social and economic problems and the originalists who adhere to the theory of following the original intentions of the authors of the Basic Law was a different understanding of the essence of the judiciary. The central question is whether the judges have the right to base their interpretation of the Constitution on values that are not explicitly provided for by the Constitution and which do not stem from the debates of the “founding fathers.”

Cass Sunstein defines this position as “fundamentalism”: “Fundamentalists believe that the Constitution must be interpreted according to the “original understanding.” In their view, the founding document must be interpreted to mean exactly what it meant at the time it was ratified.”[8]

The constitutional law of the United States defines five main types of sources used to interpret the American Constitution: 1) the text and structure of the US Constitution 1787; 2) the intentions of the entities that drafted the Constitution and voted for its adoption at the Philadelphia Convention (May 25 – September 17, 1787) or upon ratification in the states; 3) judicial precedents; 4) social, political, and economic consequences of alternative interpretations of the Constitution; 5) natural-legal doctrine.

It is generally agreed that the first three types of sources can be used as a basis for constitutional interpretation.[9] However, in the case when the constitutional lawyers occupy opposite positions, there is a significant disagreement about the “weight” of a particular source.[10] Many American researchers believe that the consequences of alternative interpretations of the Constitution should not be taken into consideration at all, even if the arguments of each side are equal. The doctrine of natural law is now rarely accepted as the basis for interpretation while many of the “founding fathers” of the United States recognized its permissibility for this purpose.[11]

Lawyers who rely mainly on sources that are recognized in the US constitutional law as primary ones (the text of the Constitution, the intentions of the “founding fathers”), consider themselves to be originalists. The most prominent figures among them are the members of Supreme Court of the United States or the higher courts of the states H. Black, A. Scalia, C. Thomas, R. Bork, and others who were at different times in different periods. There are two currents here: textualists and intentionalists. Originalists are united mainly in the American Constitution Society.[12]

Lawyers who attach special importance in the process of constitutional interpretation to judicial precedents, the consequences of alternative interpretations of the Constitution, natural-legal doctrine, consider themselves non-traditionalists, among whom we find the names of judges G. Blackman, W. Brennan, W. Douglas, R. Posner, etc. In this group, supporters of both the pragmatic approach and the concept of natural law stand out. Non-originalists prefer to be members of the Federalist Society.[13]

In practice, the debates between originalists and non-originalists often raise the question of whether to subject to a detailed judicial study (judicial scrutiny) fundamental human rights that have not been legally protected in the US Constitution.[14]

Originalism in the interpretation of constitutional norms in US jurisprudence is a manifestation of the contradiction between judicial activism and judicial restraint; in this notion, an understanding is laid down on the role of the judge in the judicial process, as well as of the powers with which he is endowed.[15]

The Strengths of Originalism

The term “originalism” entered the dictionary of American constitutionalists in the mid-1980s. One of the first to try to open this concept was P. Brest.[16] (J. Ely, T. Gray, J. Powell, and other jurists[17] took part in the discussion on the nature, content, and peculiarities of the originalist interpretation of the US Constitution.

Proponents of originalism[18] [19] [20] [21] put forth some key arguments in favor of their direction of constitutional interpretation. These arguments can be summarized as follows:

1. Originalism reduces the likelihood that the judges appointed to their posts will be able to usurp the powers of the legislative (representative) body for the interpretation of the US Constitution.
2. In the historical perspective, originalism can better strengthen the authority of the judiciary.
3. Non- originalism provides excessive opportunities for the manifestation of subjective views and elitist values of judges. For the adoption of legal judgments, judges need neutral, objective criteria for constitutional interpretation. Understanding of constitutional norms by “founding fathers” allows providing such neutral criteria.
4. As an example of an unsuccessful judicial decision taken from non- originalism positions, the landmark decision of the US Supreme Court in the case of Lochner v. New York (1905) is suggested, which established that the principle of freedom of contract is implicit in the rule of due legal process provided for in the 14th Amendment to the Constitution.[22]
5. Granting citizens the right, if necessary, to supplement the Constitution in the process of interpreting can lead to serious public debate on the issue of state power and the limits of its restriction.
6. Originalism is more in line with the understanding of the Constitution as a binding social contract.
7. If the amendment to the Constitution had been adopted at the present time, in five years, the question might arise in court: what were the intentions of the initiators of its adoption? Is there an adequate response to it in 100-200 years?
8. Originalism more often forces namely the legislature rather than the courts to review or abolish imperfect laws.

The main provision here is that adherents of the theory of originality in the United States believe that the judge, interpreting constitutional norms according to the idea of the founding fathers, protects the constitutional freedom of citizens and processes that were not foreseen by the founders and could not have been foreseen by them, but should be preserved, in accordance with the provisions of the Basic Law, consecrated with the to the utmost precision.[23]

It should be recognized that justice, based on a literal interpretation of the norms of the Constitution, minimizes the danger of judicial arbitrariness – including the temptation to interpret a complex legal language “in own favor” – in order to promote own ideas of “due” or “improper.” Of course, today, centuries later, rigidly pursued textualism can lead to absurd results. However, there is a reason, following A. Scalia, to focus not so much on the difference between ‘hard’ and ‘soft’ literal interpretation as on the difference between a reasonable and unreasonable attitude to the text.[24]

The Flaws of Originalism

The concept of living law, which became dominant during the New Deal, was based on the ideas of O. Holmes. In contrast to normative-oriented theories of law, he emphasized the importance of the society’s legal conscience for the adequate functioning of legal norms. In this regard, the scientist drew attention to such factors as the vital needs of the era, the dominant moral and political theories, public policy institutions (conscious or unconscious), even prejudices shared by the judge with his contemporaries. All of them exert greater influence on the law than the syllogisms defining the rules by which a human must be governed. The law acts simultaneously as a product of the history of the development of the nation over the centuries and as a result of modern interpretations of legislation. At the intersection of these two lines, there is the so-called universally recognized understanding of law, characteristic of each specific epoch and endowed with its specifics.[25]

Guided by this philosophy of law, O. Holmes formulated a special approach to the interpretation of the American Constitution. Its fundamental feature is the disclosure of general principles and values of the Constitution from the judicial decisions. In an isolated form, one can see in the Basic Law only the structure of government and very few general principles of law. It is a question of revealing the fundamental principles of common law, modified in some respects by the specific language of the Constitution.[26]

Adherents of the concept of living law, which have stay on the position of non-originalism,[27] put forth the arguments summarized below:

1. The “founding fathers” of the United States, at the Philadelphia Convention, did not specify special intentions to exercise control on the part of the legislator in the process of constitutional interpretation.
2. No written Constitution can foresee all means with the help of which the executive power can ‘suppress’ citizens. In this regard, judges, for the protection of human rights, should be able, if necessary, to fill gaps in legislation;
3. The various intentions of the “founding fathers” of the United States were of an unstable nature; often, it was difficult to determine them. The legal text is often ambiguous, so, to justify its position, it is possible to resort to a judicial precedent;
4. Non-originalism allows judges to avoid critical situations, the reason of which can be inadequate interpretation of the norms of the Constitution, which does not correspond to the primary goal of the latter’s adoption. The process of amendment of the Constitution is too difficult;
5. Non-originalism is oriented towards the evolution of the Constitution, which gives more opportunities for the application of the principle of equality to blacks, women, and minorities;
6. As an example of an inadequate judicial decision taken from an originalistic position, the decision of the US Supreme Court in the case of Brown v. Board of Education (1954) is given, which recognized the unconstitutional establishment of public schools for separate education of white and black students.[28]
7. Originalists lose sight of the goal of a higher order – awareness of the spirit of the Constitution, permeated with the idea of protecting freedom and human rights;
8. In Nazi Germany, the judges who stood on the originalist positions did not use their powers to counteract the anti-human policy of the fascists.

If, as an example of the constitutional interpretation, carried out from the position of originalism, the decision of the US Supreme Court in the case of Marsh v. Chambers[29] is given, then for non-origimalists, one of the exemplary is the decision of the US Supreme Court in 1965 on the case of Griswold v. Connecticut,[30] as well as the case of Muller v. Oregon (1908),[31] which is generally considered a landmark in the history of the USA Supreme Court.[32] According to it, in practice, the first decisions related to prohibitions of discrimination on the basis of sex and limiting the working day of women. Namely, on the basis of the Supreme Court’s decision on this case, the principle of state regulation in the social sphere was approved. In that case, L. Brandeis represented the interests of the state of Oregon, the authorities of which applied penalties against the employer – the owner of laundries, who violated the rights of female workers. Instead of presenting brief formal legal opinions of defendant’s lawyer to the court, Brandeis, based on the methods of the sociology of law, made a very convincing study, where statistical, medical data, expert assessments were used broadly. On their basis, the author concluded the following: women are a weaker party in labor relations, while “their bodies are in the public domain, which requires legal protection against excessive labor.” Thus, state interest in public welfare should take precedence over the freedom of the treaty guaranteed by the 14th Amendment to the US Constitution.[33]

This method is called “Brandeis Brief” till now; it became a model for subsequent appeals to the Supreme Court in cases involving damage to the health and social well-being of individual and collective subjects. The method was subsequently successfully used in the case of Brown v. Board of Education (1954)[34] to substantiate the adverse psychological impact of the segregated learning system on African American children.[35] (

Brandeis, who later became the judge of the Supreme Court, in his activity, succeeded in public defense, giving the most adequate legal interpretation of the social interests not only of the American middle class but also of simple workers – wage earners.[36]

The non-originalist concept of constitutional interpretation was developing in the US by the school of legal realism, which is regarded as a theoretical opposition to the school of legal positivism. Representatives of the school of legal realism are skeptical about “norms on paper.” The law, for them, does not consist of rules (law and precedent are always rules), but represents the activities of persons in conflict resolution, as well as decisions of judges and other administrators in specific cases.[37]

Later, the works of Holmes, Brandeis, Cordozo, and Pound opened the way for a new understanding of law research. Their ideas (that the law should be used as a means to achieve certain goals, the idea about the usefulness of the achievements of the social sciences for jurisprudence, that the law is not so much a logical system as real experience) found a response in the professors of law at Columbia and Yale Universities.[38]

Conclusion

As Wilkinson rightly claims, “No theory of interpretation is or can be perfect.”[39] The originalism and non-originalism concepts of constitutional interpretation took shape in the process of interpreting the US Constitution by the Supreme Court. Supporters of each of the concepts use different types of sources of constitutional law, substantiate their findings based on different types of legal consciousness: positivist (normative) and neopositivist (‘living constitution’).

It seems to us that in the process of interpreting the US Constitution, theories of constitutional interpretation occupy an intermediate position between the types of legal consciousness and methods of interpretation (grammatical, logical, historical-legal, teleological, etc.). Using the terminology of the prominent methodologist R. Merton,[40] they can be called the ‘middle range theories.’ Namely, such theories can provide a reliable tool for the cognition of the object, in our case – the constitutional law of the United States.

The material studied allows concluding that if the originalism concept is initially based on a conservative approach to the interpretation of the Constitution proceeding from a literal understanding of the text of the Basic Law of the country, the non- originalism concept is oriented towards the evolutionary model of the Constitution. The essence of the latter can be summarized by saying that the spirit and meaning of the Constitution are the foundation of the progressive development of law in general. However, the opposition of the originalism and non- originalism conceptions of the constitutional interpretation is meaningless, since they both represent different methodological approaches to the study of a dialectically unified process of interpretation of the Constitution.

Works Cited

Balkin, J.M. and Levinson, S. “The Canons of Constitutional Law.” Harvard Law Review, Vol. 111, 1998. p. 1020. Print.

Black, H.L. A Constitutional Faith. N.Y.: Knopf, 1968. Print.

Bork, R. “Neutral Principles and Some First Amendment Problems.” Indiana Law Journal, No. 47, 1971, pp. 20-23. Print.

Brest, P. “The Misguided Quest for the Original Understanding.” Boston University Law Review, Vol. 60, 1980, pp. 204-238. Print.

Calabresi, S.G. and Scalia, A. Originalism: A Quarter-Century of Debate. Regnery Publishing, 2007. Print.

Cane, P. and Conaghan, J. The New Oxford Companion to Law (Oxford Companions). Oxford University Press, 2008. Print.

Charles, P.J. Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence. McFarland, 2014. Print.

Clarence, T. “Why Federalism Matters.” Drake Law Review, Vol. 48, Is. 2. 2000, p. 34. Print.

David, R. and Brierley, J. Major Legal Systems in the World Today. Stevens & Sons Ltd, 1985, p.38. Print.

Ely, J.H. Democracy and Distrust: A Theory of Judicial Review. Cambridge University Press, 1980. Print.

Evans, S. and Scott, J. “Social Scientists as Expert Witnesses: Their Use, Misuse, and Sometimes Abuse.” Law & Policy Quarterly, No.5, vol. 2, 1983, pp. 181-214. Print.

Grey, T. “Do We Have an Unwritten Constitution?” Stanford Law Review, Vol. 27, 1975, p. 703. Print.

McCloskey, R.G. The American Supreme Court. University Of Chicago Press, 2010. Print.

Merton, R.K. Social Theory and Social Structure. Free Press, 1968. Print.

Parks, G.S. “Toward a Critical Race Realism.” Cornell Journal of Law and Public Policy, Vol. 17, 2008, P. 689. Print.

Posner, R. “Pragmatic Adjudication.” Cardozo Law Review, No. 1, 1996, p.18. Print.

Powell, H.J. “The Original Understanding of Original Intent.” Harvard Law Review, vol. 98, 1985, p. 885.

Scalia, A. A Matter of Interpretation: Federal Courts and the Law. Princeton University Press, 1997. Print.

Strum, P. Brandeis: Beyond Progressivism (American Political Thought). University Press of Kansas, 1993. Print.

Sunstein, ?. Radicals in Robes: Why Extreme Right Wing Courts are Wrong for America. Basic Books, 2006. Print.

Wilkinson, J.H. Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights). Oxford University Press, 2012.

[1]Cane, P. and Conaghan, J. The New Oxford Companion to Law (Oxford Companions). Oxford University Press, 2008.

[2] Grey, T. “Do We Have an Unwritten Constitution?” Stanford Law Review, Vol. 27, 1975, p. 703.

[3] McCloskey, R.G. The American Supreme Court. University Of Chicago Press, 2010.

[4] Ely, J.H. Democracy and Distrust: A Theory of Judicial Review. Cambridge University Press, 1980.

[5] David, R. and Brierley, J. Major Legal Systems in the World Today. Stevens & Sons Ltd, 1985, p.38.

[6] McCloskey, R.G. The American Supreme Court, 2010.

[7] Scalia, A. A Matter of Interpretation: Federal Courts and the Law. Princeton University Press, 1997.

[8] Sunstein, ?. Radicals in Robes: Why Extreme Right Wing Courts are Wrong for America. Basic Books, 2006, p. xiii.

[9] Ibid.

[10] Posner, R. “Pragmatic Adjudication.” Cardozo Law Review, No. 1, 1996, p.18.

[11] McCloskey, R.G. The American Supreme Court, 2010.

[12] Charles, P.J. Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence. McFarland, 2014.

[13] Ibid.

[14] Powell, H.J. “The Original Understanding of Original Intent.” Harvard Law Review, vol. 98, 1985, p. 885.

[15] Sunstein, ?. Radicals in Robes, 2006.

[16] Brest, P. “The Misguided Quest for the Original Understanding.” Boston University Law Review, Vol. 60, 1980, pp. 204-208.

[17] Ely, J.H. Democracy and Distrust, 1980.

[18] Black, H.L. A Constitutional Faith. N.Y.: Knopf, 1968.

[19] Scalia, A. A Matter of Interpretation, 1997.

[20] Clarence, T. “Why Federalism Matters.” Drake Law Review, Vol. 48, Is. 2. 2000, p. 34.

[21] Bork, R. “Neutral Principles and Some First Amendment Problems.” Indiana Law Journal, No. 47, 1971, pp. 20-23.

[22] 198 U.S. 45 (1905)

[23] Wilkinson, J.H. Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (Inalienable Rights). Oxford University Press, 2012.

[24] Scalia, A. A Matter of Interpretation, 1997.

[25] Charles, P.J. Historicism, Originalism and the Constitution, 2014.

[26] Calabresi, S.G. and Scalia, A. Originalism: A Quarter-Century of Debate. Regnery Publishing, 2007.

[27] Posner, R. “Pragmatic Adjudication.” p.18.

[28] 47 U.S. 483 (1954)

[29] 463 US 783 (1983)

[30] 381 US 479 (1965)

[31] 208 US 412

[32] McCloskey, R.G. The American Supreme Court, 2010.

[33] Strum, P. Brandeis: Beyond Progressivism (American Political Thought). University Press of Kansas, 1993.

[34] 347 U.S. 483

[35] Evans, S. and Scott, J. “Social Scientists as Expert Witnesses: Their Use, Misuse, and Sometimes Abuse.” Law & Policy Quarterly, No.5, vol. 2, 1983, pp. 181-214.

[36] Ibid.

[37] Balkin, J.M. and Levinson, S. “The Canons of Constitutional Law.” Harvard Law Review, Vol. 111, 1998. p. 1020.

[38] Parks, G.S. “Toward a Critical Race Realism.” Cornell Journal of Law and Public Policy, Vol. 17, 2008, P. 689.

[39] Wilkinson, J.H. Cosmic Constitutional Theory, 2012, p. 10.

[40] Merton, R.K. Social Theory and Social Structure. Free Press, 1968.