Whitepaper On Originalism in Constitutional Interpretation
by: Steven G. Calabresi
Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of a constitutional text thought that it would have.
Originalism is usually contrasted as a theory of constitutional interpretation with Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution. Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation—from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day. Living constitutionalists think racial apartheid could become constitutional again if social attitudes toward race evolve. Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed.
Originalism is grounded in the two-century-long movement toward constitutionalism, and it is behind the U.S. Constitution itself. Consider the following ten purposes that underlie the U.S. Constitution. Critically, all of these counsel in favor of an originalist rather than a living constitutionalist interpretation of the text of the Constitution, which would undermine the accomplishment of these purposes at every turn.
1. Set Up or Constitute the Institutions of the National Government—A first purpose that clearly underlies the U.S. Constitution as an historical matter was to set up or constitute the institutions of the national government. Before 1789, there was no presidency, no Senate or House of Representatives, and no Supreme or inferior federal courts. By creating ex nihilo these institutions, the Framers did get constitutional politics going, as living constitutionalists acknowledge, but they also did quite a bit more to constrain and channel the constitutional politics they started. The Framers in 1787 put in place powerful institutional actors who would become constitutional interpreters, and they set rules on when and how those actors could be selected. The Framers’ decision in 1787 to establish a six-year electoral cycle with House elections every two years, presidential elections every four years, and Senate elections every six years, with one third of the Senate turning over in two-year intervals, completely shapes our public life to the present day. This basic electoral framework rule guarantees that we do not have one winner-take-all election in the U.S. roughly every five years as Britain does. It guarantees that for a political movement to prevail nationally, it must win more than one election. To replace a majority of the Supreme Court, political movements in the U.S. may have to win three to six elections over a six- to twelve-year time period. In Britain or Canada, in contrast, constitutional change can occur by winning just one election. Even when a political movement wins a majority on the Supreme Court, as the advocates of Jim Crow race discrimination did between 1877 and 1954, the real original meaning of the Constitution does not change. The Supreme Court instead decides cases for a time in a way that is itself unconstitutional.
The Framers’ choice of electoral rules sets a rhythm to our politics and promotes gradualism and Burkean change rather than French revolutionary style changes. In this respect, we think a better metaphor for the Constitution than a skeletal framework is that of a sea anchor. A sea anchor is a large parachute filled with water that drags behind a boat and slows enormously its movement in any direction even though the anchor never touches bottom. It can hence be used in the middle of the ocean where the water is too deep for a normal anchor. A first purpose of the U.S. Constitution is to set up the electoral cycle to slow change the way a sea anchor does in the middle of the ocean.
The six-year electoral cycle set up by the Constitution serves other purposes as well as slowing down change. It guarantees that the popular will in the U.S. is sampled not in one election every five or so years but in multiple elections held every two years over a six-year cycle. The U.S. method of sampling the popular will is superior to the British method in the same way that a daily tracking poll is superior to a one-time poll. Multiple samplings lead to greater accuracy. The fact that the U.S. samplings of the popular will occur in geographically different congressional districts—states (for the Senate), and the nation (for the presidency)—adds to the accuracy of our system.
2. Divide and Allocate Power—A second obvious purpose of the Constitution is to divide and allocate power in four different ways. First, the Constitution divides and allocates power between We the People, who are sovereign, and the government, which is given only limited and enumerated powers. Second, the Constitution divides power horizontally among the Congress, the President, and the federal courts. Third, the Constitution divides power vertically between the national government and the states. And, finally, the Constitution protects certain enumerated and unenumerated individual rights from government intrusion at all levels.
This function of dividing and allocating power in so many different ways again goes somewhat beyond just the creation of a skeletal framework or the getting going of politics. The Framers’ Constitution set in motion a whole Newtonian system of planets orbiting around the sun of the sovereign people, each exerting gravitational force on one another. The Madisonian system of checks and balances is, as Michael Kammen has described it, “a machine that would go of itself.” To be sure there are build-outs in structural constitutional law. At the margins, presidential, congressional, and federal judicial power have been made concrete by practice. One cannot understand presidential power in foreign affairs, or the political question doctrine, or the case and controversy limitation without making reference to practice. But again, the basic divisions and allocations of power made in the period between 1787 and 1791 still govern with the vital additions of the Reconstruction and Progressive Era Constitutional Amendments adopted through the amendment process set out in the original document.
3. Serve as a Gag Rule—A third purpose served by the Constitution is that it functions as a gag rule: it takes certain subjects off the table of discussion in ordinary politics. The Framers of the Constitution meant to do this at the national level when they forbade a national established church, protected the free exercise of religion, and forbade religious tests for holding office. These three prohibitions were meant to prevent a repeat of the English civil wars of the seventeenth century by taking the subject of religion and removing it entirely from ordinary politics. The Framers’ effort was a complete success. Religious strife has been greatly reduced. The authors of the Reconstruction Amendments, perhaps inspired by the Framers’ success, tried to take the subject of racial discrimination off the table by forbidding laws that distinguish citizens by race.
4. Restrain the Passions of the Moment—A fourth purpose of the Constitution historically was that it was meant to restrain the passions of the moment. Tying ourselves to the constitutional text was to be like Ulysses lashing himself to the mast of his ship so he could listen to, but not heed, the alluring and deadly songs of the sirens. The Framers deliberately designed the Madisonian system of checks and balances to prevent temporary passions, which might engulf the body politic, from being legislated immediately into law. This guaranteed that change would be slow and incremental. The U.S. Constitution has been highly successful in this respect. That is one reason we have had so much economic growth and liberty as compared with other democracies around the world.
5. A Framework for Private Ordering—A fifth purpose that is served by the Constitution is that it serves as a framework to promote private ordering because it makes change of all kinds slow and incremental. This is the case not only because of the Madisonian system of checks and balances and the divisions and allocations of power alluded to above, but also because Article V makes it very difficult to amend the Constitution while the Senate filibuster (a build-out) makes it hard to pass even ordinary laws. The net result is that the United States has a very entrenched legal system: It is not just hard to amend the Constitution; it is also very hard to pass an ordinary law. The U.S. legal system is thus super-entrenched and that leaves people a lot of room to make their own choices in terms of economics and personal liberties. One goal of a constitution is to guarantee credibly that if you write a book today you will not be prosecuted for what you said in it twenty years from now. Similarly, if you start a business or build a factory today, it will not be taken away from you without just compensation being paid twenty years from now. The U.S. Constitution accomplishes these goals of promoting private ordering because it is so hard to pass laws and even harder to amend the Constitution. This is why the United States is the freest and most prosperous nation on earth. The Framers did not say in so many words that they wanted to promote private ordering, but they did make it clear that they wanted to protect life, liberty, and property. Obviously, they succeeded beyond their wildest expectations.
6. A System of Intergenerational Lawmaking—A sixth purpose of the Constitution is one that the Framers could only have hoped for rather than expected: the successful creation of a real working system of intergenerational lawmaking. Law can create a freedom or power in people that would not exist if it were not there. This insight is at the bottom of contract law. By giving up the “freedom” to breach their contracts, citizens gain a power to make more certain arrangements in the future, which is liberty- and prosperity-enhancing. Ironically, perhaps, agreeing to be bound by a contract is empowering.
The same form of intergenerational lawmaking occurs in constitutional law. There are some problems that are just so big that no one generation can or should have to deal with them on its own. Thus, for example, the U.S. government borrowed a lot of money from future generations to win World War II and the Cold War. The generations that won those wars could not have won them without borrowing from the future. And it made sense to borrow from future generations because those very future citizens would themselves benefit from winning the wars in question. The Constitution similarly allows us, in exchange for giving up our freedom to scrap it, the security of being bound by some pretty sensible rules that have persisted over two hundred years. By agreeing to be bound by our great-great-grandparents’ Fourteenth Amendment, we also gain the power to bind our great-great-grandchildren with some new amendment. Constitutional originalism thus acknowledges that the present has obligations both to the past and to the future, and that just as every individual is not an island all by himself, every generation is not an island all by itself. We honor our parents when we give their laws a presumption of validity while reserving the means to change them in a consensus-based way.
7. Promote the Rule of Law—A seventh purpose of the Constitution is to promote the rule of law and not of individual men or women. As Robert’s Rules of Order say at the outset, “where there is no law and where every man does what is right in his own eyes there is the least of real liberty.” The original Constitution is an ingenious effort to promote the rule of law because, as James Madison explained in The Federalist No. 51, it does not rely on mere parchment barriers for enforcement, but instead sets in play a mechanism by which ambition is made to counteract ambition. Ultimately, We the Sovereign People enforce the Constitution over the six-year electoral cycle.
8. Promote Democracy—An eighth purpose of the Constitution is to promote democracy. As much as they believed in and talked about checks and balances, the Framers were determined to set up a democratic system of government and not an English-style monarchy or aristocracy. The Constitution provides for popular ratification and for popular election of representatives, senators, and, indirectly, Presidents. Judges, whose selection is removed from the people, are picked by the President and Senate and thus indirectly by the people. Even the six-year electoral cycle, described above as a series of biannual tracking polls, is an effort to discern what the people really want, as opposed to what they might impulsively vote for in one election.
9. Certainty from Getting Things in Writing—A ninth purpose of the Constitution is to make it easier to find the law by getting it down in writing. The Framers grew up with the British unwritten constitution, and they obviously thought it was very important to get constitutional constraints in writing so as to eliminate uncertainty about the law and, in Jefferson’s words, to bind down government officials in the chains of the Constitution. The Framers were skeptical about the ability of people to agree on unwritten constitutional commands, and this skepticism seems well warranted. The writtenness of the Constitution reflects the Framers’ desire to make concrete the meaning of our fundamental law.
10. Lead to Good Consequences—The tenth and final purpose of the Constitution is aspirational and consequential. The Constitution itself describes its purposes aspirationally and consequentially in the Preamble. The Framers say the purposes of the Constitution include forming a more perfect Union, establishing Justice, ensuring domestic tranquility, providing for the common defense, and securing the Blessings of Liberty to ourselves and our posterity. The Constitution aspires to promote these ends so as to produce good consequences, and the Preamble describes the promotion of these ends as being a purpose of the document.