February 23, 2010

Overcoming originalism

Originalist approach to jurisprudence is neither logical nor practical

The conservative emphasis on originalism in constitutional interpretation, while appealing as an argumentative technique, does not provide us with an effective model of jurisprudence. You hear it all the time—whether it’s from a distinguished justice like Antonin Scalia or a member of the tea party movement—that a proposed policy is constitutional if it is in accord with what a reasonable person in 1787 interpreted the constitution to mean. This standard, while appealing and seemingly easy to apply, is ultimately misguided, flawed, and does not provide us with any practical way of escaping the thorny nature of legal reasoning and judicial decision-making.

The easiest way I can think of highlighting the absurdity of originalism taken to the extreme is to consider the death penalty. You might not think the death penalty is inherently cruel and unusual, but odds are you probably think the death penalty for the mentally challenged is cruel and unusual. Certainly it’s what the Supreme Court decided in 2002; such an opinion does not have much of a basis in originalism. The Court’s justification for it was not to go back to 1787 and look for evidence that people then were concerned about executing mentally challenged people. Instead the Court, quite rationally, understood that “cruel and unusual” meant something different in 2002 from 1787, and that there was something clearly wrong with trying to apply moral standards that were in place over 200 years ago on a country and culture that are significantly different now. Given the difficulty of getting the Constitution amended, doesn’t it make much more sense to treat the rejection of cruel and unusual punishment as a principle? As a standard? One which indeed has always meant that we shouldn’t enact cruel and unusual punishment on anybody, but one which also allows us to decide, based on the conditions of our own time, what truly constitutes cruel and unusual punishment?

But let’s grant the originalists’ point, for the sake of argument. Let’s say that, somehow, it makes perfect sense to deny that societal values and ideas ever change and that we should embrace what people in 1787 thought cruel and unusual to be. If you take a look at the case of District of Columbia v. Heller, where the Court struck Washington D.C.’s ban on handgun ownership, you’ll see that both Scalia’s majority opinion and John Paul Stevens’s dissent rely on the originalist method; both look at the history of second amendment interpretation and they come up with totally different conclusions—one argues that the second amendment contains within it an individual right to own a handgun; the other dismisses the view. Suddenly, we’ve run into a snag. Even if you accept that there is a right answer here­—that most reasonable people in 1787 agreed with one of these two positions—it is very difficult for us to be certain of that today.

Furthermore, people in 1787 did not agree on what the Constitution meant. Less than a decade after the Constitution was written, some of our greatest founding fathers and authors of the Federalist Papers, Hamilton and Madison, were engaged in a furious debate over whether the Constitution allowed for the creation of a Bank of the United States. The authors of the Constitution disagreed on what it meant and, plainly, reasonable people at the time did too. If we were lucky enough to live in a world where a vast majority of the reasonable people in 1787 agreed that the Constitution meant X, then fine, maybe originalism is workable. But seeing as how that is not the case, and that violent disagreements over the meaning of the Constitution existed among those wrote it less than a decade after its ratification, how is it possible for any of us to advocate complete originalism with a straight face?

To quote the legal scholar Paul Freund, “The Constitution should not be interpreted like a last will and testament lest it become one.” The issues of rights, of interpretation, of justice are all necessarily complicated and confusing; easy methods that give us right answers every time just don’t seem to exist. It really is tempting to throw our hands up in the air and defer to our predecessors on what the Constitution means. It saves us a lot of time and trouble understanding our own changing social conditions and how the Constitution applies to them. Nevertheless, such an approach is wrong. It is wrong because it leads to injustice, because it is oftentimes impossible to know with certainty what reasonable people thought 200-plus years ago, and because reasonable people have violently disagreed with one another over what the Constitution means. To pretend that these three things are not true is to escape the realities of jurisprudence and to go against reason.

—Peter Ianakiev is a second-year in the College majoring in political science.