Poking around for commentary on originalism, I stumbled across a summary review of an APSA (American Political Science Assoc.) forum on “The New Originalism”. I’m going to set aside for the moment the oxymoronic absurdity inherent in the designation “New Originalism”. The panel featured an “all star” lineup of experts in legal theory to comment on the merits of “New Originalism” and originalism in general. One of these panelists was James Fleming.
For those of you unfamiliar with Mr. Fleming—sorry… Doktor Flemming: we musn’t neglect the credentials of his Piled Higher and Deeper1— he is a noted (and particularly uncompromising and vehement) critic of originalist constitutional interpretation. Most of his ilk concede that originalism has at least a place in constitutional interpretation. Professor Fleming, on the other hand, stands among a select few who actually deprecate its inclusion among valid perspectives in jurisprudence and seem to view it with contempt.
Fleming’s contribution to the discussion, from the report given by the “live blogger” cited above, follows basically the same line as his arguments have in the past, that originalism is splintered and that this fractiousness points to the inherent weaknesses of trying to get at any original meaning. He cites forms of originalism centering on framer’s intent, ratifier’s interpretation, textual interpretation, semantic value, etc. as evidence that the elusive “original meaning” is too nebulous and that the only thing that the various breeds of originalism have in common is a rejection of a “moral” reading of the constitution.
Firstly, it disgusts me that Fleming equates the moral relativism with which non-originalists reinterpret the Constitution with a “moral reading”. Nothing could be further from the truth. The whole basis of originalism lies in the notion that there are immutable truths that govern men and society and that our Constitution was written on the basis of those principles. The effort to crystallize and apply these principles to modern circumstances is the full scope of originalism. Any other mode of interpretation must, by definition, reject at least one of two notions:
- That there exist any such immutable principles or
- That the Founders based our Constitution on a sound understanding of those principles.
One or both of these principles must be rejected in order for any other system of Constitutional interpretation to be even embarked upon, let alone embraced. “Moral reading” requires either moral relativism or chronological snobbery… pure and simple. No logical counterargument to this fact is even possible. Obfuscatory counterargument, on the other hand, is sometimes quite effective. Fleming has made a career of it.
This leads me to my main contention with Fleming’s argument: his fundamental misapprehension (willful or no) of the nature of originalism. His assertion that originalism is fractious and splintered is absurd when you understand what the origin and purpose of true originalism are. What he describes as different factions within originalism are in reality nothing more than methods. He mistakes the tools for the craft. Differentiating originalists as “semantic” or “original intent” is every bit as absurd as subdividing diners in a cafeteria into “spoon eaters” and “fork eaters”.
Only a legal theorist could make such a mistake. There are even many who themselves claim to be originalists who make this error because they are steeped in the culture of orgiastic theorizing and debate that leads to something so patently absurd as a Forum on ‘The New Originalism’. When originalism is founded upon a core belief in the aforementioned immutable principles that govern the human condition, a veneration for the grasp that the Founders (and, collectively, the founding citizenry) had on them, and a respect for the sanctity of the process that codified them, then the supposed “factions” of originalism become so much bluster over no matter whatever.
Thorough, deep, and respectful study of the writings of the Founders, careful textual analysis of the document they so carefully produced from much passionate deliberation, close analysis of the contextual framework in which it would have been understood by both the authors and ratifiers, and a deep skepticism for innovative interpretation will yield sound jurisprudence and an anchoring polity that can safely guide us through the morass of circumstance and perceived exception that leads nations and empires to their eventual demise (ask the Romans).
America cannot and will not continue to be the greatest nation on earth by rendering mutable the principles on which it achieved its preeminence. Our relative prosperity, freedom, justice, and influence in this world are the result of adherence to a very carefully crafted blueprint. If we question the Founders’ grasp of the principles of good government, we imperil our status. If we question the existence of those principles, we seal our fate.
Fabius Cincinnatus
Note: The title of this entry is an allusion to C.S. Lewis’ Mere Christianity, and parallels his usage of the word “mere” in the more archaic sense of the word. As dictionary.com puts it:
2. a. pure and unmixed, as wine, a people, or a language.
b. fully as much as what is specified; completely fulfilled or developed; absolute.
1- For those of you who suppose that I’m just being childish here, understand that my derision of his credentials has a basis in a general scorn for legal theory as a course of study and professorship, rather than for the value of academic achievement (or even credentials). To borrow yet another analogy from C.S. Lewis, the study of legal theory has as much to do with sound and consistent jurisprudence as masturbation has to do with procreation. Yes, I intend all the implications of that analogy on every level. I would trust a professor of philosophy on the bench long before I would a legal theorist. I find it telling that his degree is in “Politics”. Figures.
