(US) Politics over breakfast

[kaberett]

A brought up originalism this morning (very briefly: it's a legal approach to interpretation of the US constitution that views the Constitution's meaning as fixed as of the time of enactment, rising to prominence in the 1980s) as contrasted with the Living Constitution/constructionism.

It seems obvious to me that this is a theological argument at least as much as it's a secular one, in that originalist interpretations are associated with conservatives (notably Scalia) in a way analogous to Biblical literalism (a school of thought arising, ish, in the 18th century) in contrast with exegesis that treats religious texts as living documents that require reinterpretation in light of their present contexts. (I am contrasting "theological" and "secular" there deliberately, rather than "theological" and "legal": for the purposes of this post I'm taking the perspective that the Bible is a text that sets out a system of laws and precedents.)

I'm neither a theological scholar nor a legal scholar (and nor for that matter am I especially familiar with the US politicolegal system beyond the obvious osmosis) so I'm obviously handwaving quite a lot here, but I would be interested in Your Collective Thoughts on the matter, if you have them and feel like talking!

Comments

[kaberett]

Ha, abstract of a 2010 paper on the topic:

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism’s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches; when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation.

It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration; both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text; both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, both with respect to interpretive norms and cultural values; and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity.

Yet if we are to understand the force of the critics’ comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text - the Word of God - is the highest human good. Originalism, in contrast, demands loyalty to the text regardless of its moral quality; just or good results are accidental rather than necessary features of originalist interpretation.

Originalism’s critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism - including those whose attraction is instrumental - might want to take a closer look at the approach, and its amoral character, before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs.

[jack]

I have all the thoughts but no good conclusions.

I think something like "how a reasonable person would have interpreted what this meant at the time it was written" is the natural reading of most texts.

A literal interpretation of "literal interpretation" might mean something like "according to what a literal reading of the words would mean now, ignoring how the meaning of the words, context and subtext have changed", is basically "with random changes in, mildly biased towards current social mores". And that's not usually what people who think of themselves as literalists mean (see below), but might be sometimes what you want (see elsewhere below).

There are people who try to work out what Jesus meant at the time and what he would have said today, often looking for a most moral interpretation. And I think that's generally good. But I'm not sure if there's a specific name for it. It might be "biblical literalism", but I more often see "biblical literalism" refer to movements which have fixed on a particular interpretation they think is "original" or "literal", but they are in practice more committed to not changing that interpretation than to finding out what an original or literal meaning might say if it differs. And that fixed interpretation tends to have lots of bits I find really awful, although I may have got a non-representative sample.

So I've no idea if Scalia was actually devoted to a natural reading of the constitution, or picked that as a basis because it reinforced the sort of answers he wanted to find, or somewhere between. I'd be interested to know, but haven't got the energy to look it up -- are there cases where he ruled clearly for an original interpretation against his expressed political opinions, or vice versa?

But I also think, there are advantages in having a fixed constitution or religious text, because it can enshrine rights and ideas that might be temporarily swept away if there weren't an authoritative source protecting them; and yet, there advantages in not having it *completely* fixed, because sometimes the original is ambiguous or superfluous, or generally agreed to be wrong, or missing something generally agreed to be important.

And ideally there'd be a way of gating in changes slowly (eg. proposing constitutional amendments but that need to be ratified over a period of 50 years, or something). But it's really hard to make that stick and not have it become a political football. And one way several societies have ended up coping with that is, by having a body that interprets the law, supposedly literally/originally, but actually, they're JUST A LITTLE BIT more likely to bend their interpretation when it's obviously really worthwhile.

The Talmud sometimes seems like 2000 years of this, of "we must respect the previous generation and all the way back to the biblical patriarchs and matriarchs. But if you want MY opinion, what they were REALLY saying was [something a bit more appropriate to the present day]". And with lots of problems, still seems generally superior to sticking rigidly to the laws people followed 3000 years ago. And the American constitution seems similar (some of the time).

And I would rather there were a *better* way of achieving that aim. But currently it seems like there isn't, so sticking to the original rules, while superior in theory, may not be better than accepting a process which modifies them in ways that are maybe, hopefully, more than half the time, possibly positive.

[naath]

When you're thinking about a religious text, obviously there is some basis (for the believer) to suppose that it started out Right and True and Divinely Inspired and etc.

What I really don't get about American politics is the treatment of the Constitution in the same way... I mean, it was clearly written by humans, you can even read about how they decided what was going into it. The authors never seem to have made any claim to Divine Inspiration... why is this one bunch of dead white guys supposed to be superior at deciding what is the Best Law To Have then any other bunch of people with experience in law?

[redsixwing]

People (including some of my relatives) seem to have elevated "founding fathers" to a sort of political sainthood where they can do no wrong, in some cases against their explicit intent - why put in a mechanism to change the thing if it's supposed to be unchanging, after all? I don't understand it or consider it healthy, but a lot of people feel that way.

[ilanin.livejournal.com]

are there cases where he ruled clearly for an original interpretation against his expressed political opinions

"I hate the result [in Texas v. Johnson]," Scalia said at a Q&A sponsored by Brooklyn Law.

"I would send that guy to jail so fast if I were king," he added, then referring to Gregory Lee Johnson as a "bearded weirdo."

(Gregory Lee Johnson burned an American flag at a protest and was arrested under a Texas law preventing this; Scalia joined with the Supreme Court's liberal wing to shoot the law down as an unconstitutional violation of Johnson's right to free speech).

[maramcreates]

Just so I lay this out there from the beginning, when I must choose then I certainly lean towards the Constructionism approach (but this has more to do with party politics than anything else, really). That said, I can see certain situations where one can benefit in mixing the two approaches (originalism and constructionism)--rather than adhering to one -ism to the detriment of the particular issue at hand.
For example, take the Second Amendment. Conservative opposition to any form of reasonable gun control (and, let's be honest, almost *any* form of gun control would be reasonable at this point) has reduced liberals to question the validity of the amendment at all, and I find that distressing for two reasons: (a) I like that amendments are extremely difficult to change (and yes, originalists, the fact that the founding fathers *did* put in a way to do so must mean that they intended for the constitution to be changeable to suit the needs of the time) as there are plenty of good amendments that I'd like to see remain in place; (b) the actual *intention* of the amendment (the ability to protect oneself from threats larger than oneself, in my eyes) presents a rare opportunity to strengthen civil liberties.
Let's focus on item (b) for a moment: I think that the Second Amendment is too *narrowly* applied, and I blame organizations like the NRA, the RNC, and the DNC for this. Why should we apply the intention (the ability to protect oneself) just to simple gun ownership? What are the threats that actual citizens face on a daily basis? We are subject to having our private and personal lives violated by the state (for whatever reason it sees fit, and without any accountability) and corporations. We are subject to losing the rights we have over our own bodies (women reproductive rights, the right to end one's life, the rights of queer people to be queer at all). We are subject to having our social nets dismantled for the sake of profitability. And, the list goes on. If we embrace the intention, but bring the application to fit the needs of the present, then imagine what the Second Amendment could become. The citizenry could: be armed with technology that the NSA didn't have a back door into; have real legal recourse against corporations that seek to influence elections through campaign contributions; solidly establish that women have a right to their own bodies; and more! The Second Amendment could actually be allowed to do what it was so obviously intended to do--to give people the right to live their lives without oppression from forces larger than themselves.

[cosmolinguist]

Yes!

[kaberett]

I suggested to A this morning that at least some of the time what's going on is a conflict of intent ("all men are created equal" vs, to be blunt, genocide and slavery) and therefore sooner or later in order to come to a (moral and) reasonable interpretation of the text (... which you've accepted as a sound basis, because of Reasons) you're going to have to decide which intentions to prioritise, and how.

Which I think is very close to what you're saying here with respect to the Second Amendment? And also YEP.

[kaberett]

(I think the entire thing about intent is sort of interesting not least because both sides of the argument claim that they're trying to serve the intent of the original lawmakers. Which is, again, where I think it all gets a bit theological, but as I have presumably made obvious my bias is very much toward interpreting intent in modern contexts, which I think is what you're doing with respect to (b).)

[maramcreates]

I suggested to A this morning that at least some of the time what's going on is a conflict of intent ("all men are created equal" vs, to be blunt, genocide and slavery) and therefore sooner or later in order to come to a (moral and) reasonable interpretation of the text (... which you've accepted as a sound basis, because of Reasons) you're going to have to decide which intentions to prioritise, and how.

Which I think is very close to what you're saying here with respect to the Second Amendment? And also YEP.

(I think the entire thing about intent is sort of interesting not least because both sides of the argument claim that they're trying to serve the intent of the original lawmakers. Which is, again, where I think it all gets a bit theological, but as I have presumably made obvious my bias is very much toward interpreting intent in modern contexts, which I think is what you're doing with respect to (b).)

Yes, you're reading me right.
However, I think that there are times when we do know the intention because the intention was explicitly spelled out. Take the Three-Fifths Compromise, for example. There's a law that no one in their right mind could possibly support today, but it was clear that it was supported during the drafting of the constitution.
So, yes, differing understandings of the intent is part of the problem, but the other part is that there were simply bad laws enacted as well. Whether a law is bad because of bad intentions or bad repercussions doesn't mean much unless successfully arguing one way or the other allows you address the bad law.
That's where the theological parallels you describe really come into play. I mean, trying to explain to conservatives why the constitution needs to be updated to reflect the realities of the current day (even within their own framework of adhering to the intention of the law), is like trying to get them to agree to a Second Vatican Council.

[davidgillon]

I'm not a fan of the US Constitution. I'm even less a fan of the way it tends to be interpreted by a politicised judicial branch (a criticism that can be applied to both right and left, though I'm far less happy about the right), and US politicians and voters in general.

When it comes to constitutional law, the US en masse seems to forget the principle of blind justice and try to suborn it as a partisan club to beat the other guy with. Some of the stuff that goes on around Roe vs Wade, voter registration and equal rights absolutely horrifies me.

Originalism seems to be part of the hagiography extended towards the people who wrote it, but they were people who were genuinely flawed, and who could not imagine some of the issues their work would be asked to interpret. I hope they would be horrified by, for instance, attempts to use the Constitution to justify making it more difficult to allow the supporters of one party to vote, but the interpretation of their words by politicised lawyers allows precisely that. And the Constitution as originally passed clearly enshrined injustice, by allowing slavery to continue, even as Britain, the country they had rebelled against for not giving them equal rights, was passing legal judgements to outlaw it on British soil. Then time passed, thoughts changed, and slavery became a moral issue even in the US, which needed a Constitutional Amendment to eradicate it. But the ACW period Originalists weren't about to allow that to pass without a very literal fight, and half a million Americans died.

The law should be a living thing, because society and morality are living things that can come to recognise when injustice exists, even if the law fails to. Originalism denies this.

WRT Scalia, he was a judge who allowed his personal political preferences (on gay rights in particular) to come before his duty to an impartial law and blind justice. How can anyone support a system that leaves a man like that in power for life?

[maramcreates]

Well said.

[milkymoon]

This. American leaders treat the Constitution as though it's a religious text. It seems they've taken puritanism and biblical literalism and applied it to a national body of laws, which doesn't make for very good policy. But if you criticise the Constitution in the US they'll think you're insulting the Bible (...which brings everyone back to the idea that the document *is* treated like a religious text anyway).

[davidgillon]

Agreed. I far prefer the British model in which constitutional law is a living body of work which can be changed as needed.

It actually seems to me that the US Constitution was written in such a paranoid 'oh, government is inherently corrupt and needs to be hamstrung at every step' way that it's amazing that it works at all. It's certainly possible to do a far better job of it.

[maramcreates]

It actually seems to me that the US Constitution was written in such a paranoid 'oh, government is inherently corrupt and needs to be hamstrung at every step' way that it's amazing that it works at all.

Agreed, but don't forget that lawmakers were also paranoid of anyone that wasn't a white male landowner. Jefferson (a paragon of the Democratic party today) openly distrusted the uneducated masses and was loathe to extending any voting rights to them.

[kaberett]

Yes, precisely this! Hence my going "you know what, I think this is actually a theological argument". (I suspect the discussion would go much more productively if people were willing to a. admit it's theological and b. draw on several millenia of scholarship aimed at helping solve this kind of problem but if they were willing to do that then, well, originalism/literalism wouldn't have got off the ground because it's a remarkably recent and deliberately obtuse approach to things. :-p)

[tree_and_leaf]

I'm not sure that he was, though. I don't like Scalia's politics, and I'm not saying I think his judgements were always correct, but there are definitely cases where his legal views were different to his personal beliefs. Take abortion. Yes, he opposed Roe v Wade, but that was because of his reading of what should and shouldn't be a federal matter - he is on record as saying that he could see nothing in the constitution to prevent individual states making abortion legal, even though he as a Catholic was opposed to it (and you can find instances of him being denounced by the religious right for it, see him being refered to as "Scalia the Enemy" by the American Life League).

I repeat, I'm not saying I like Scalia's politics, and I don't think his approach to the law is the best one, at least given the fact that in an American context, it would place an unworkable stranglehold on how things develop. But I think he was a reasonably honest jurist, and I don't think Ginsberg would have maintained a friendship with him if he wasn't.

[davidgillon]

I'm thinking of stuff like this http://www.nytimes.com/politics/first-draft/2015/11/16/justice-antonin-scalia-questions-logic-behind-gay-rights-protections/ Arguing that Gay Rights is logically no different to rights for child molesters, when he was undoubtedly aware that 'child molester' is a slur used to beat gay people with is just plain nasty.

[untonuggan]

I'm even less a fan of the way it tends to be interpreted by a politicised judicial branch (a criticism that can be applied to both right and left, though I'm far less happy about the right), and US politicians and voters in general.

When it comes to constitutional law, the US en masse seems to forget the principle of blind justice and try to suborn it as a partisan club to beat the other guy with. Some of the stuff that goes on around Roe vs Wade, voter registration and equal rights absolutely horrifies me.

The problem with the separation of powers, I think, is that the only way we've found to change the status quo other than a bloody Civil War is via Supreme Court ruling by nine justices appointed for life. (What was that about no monarchy, founders?) Otherwise there's so much obstructionism and filibustering and posturing that nothing gets done. Alternately, the President can issue executive orders...which can just be overturned by the next president.

It's fundamentally unsustainable and that worries me in a way I try not to think about every day so I can function. But since the whole "let's shut down the government every year while we argue about the budget" thing is just...

and don't get me started on how Congress has to approve DC's budget, so Senators and Congresspeople from across the country can ban funding for Metro or abortion *to make a point* even though everyone who actually lives in DC would like to do the Thing.

*flails*

[redsixwing]

Can't speak to Scalia. Basically all I know of him is that a) he opposed pretty much everything I like and b) dude could WRITE.

I think both of them (Constitutional originalism and Biblical literalism) have a common origin, and that origin includes a narrative of decline.

We poor mortals, or so the story goes, could never match the sheer goodness of those writers, and so we're left trying to argue out the details of what their writings mean and implement them in our daily lives as some sort of a pursuit of purity. (Needless to say, I don't believe this.)

The problem with both cases is that it prevents people from accepting their own opinions or building their own morality, instead preferring rigid adherence to a framework, whether that framework is actually correct or sustainable or usable at all. It privileges the old over the new - which can sometimes be useful but as a reflex, should be examined instead of followed without question - and denies the ability for the world to change past what the writers envisioned. Even in mild cases, it believes the map over the territory.

Even in two hundred years, we've managed to change past what those writers envisioned. We've come up against situations that were flatly impossible when the law was written, and invented a few of them ourselves.

I lean very hard toward constructionism, the same way I lean very hard toward "you gotta make your own morality, because then when the framework fails* you at least know how to debug it."

*and it will. The world is bigger than most people can handle and more complicated than anyone can envision. Demanding it conform to anyone's view - even anyone's collective view - of How It Oughta Be is a good way to take a bruising - believing the map over the territory being a very good way to Wile E. Coyote one's way off a cliff.

[sashajwolf]

I have degrees in both theology and law, and AFAICS literalism in theology never seriously occurred to anyone before the so-called Enlightenment, and in law is an eccentricity unique to the British legal system and its colonial derivatives, from which the EU is thankfully gradually managing to prise British judges away. So yeah, I don't think very highly of it in either field, and I also agree that a person who is predisposed to it in one field is likely to be predisposed to it in the other as well, and to be of a generally conservative mindset.

[redbird]

AIUI (and my American history courses were decades ago, and I have forgotten much of them) the Bill of Rights specifically was the result of people thinking that the proposed Constitution gave too much power to the (central) government, and wanting to weaken it. Some of that was distrust of any government, and some was slow communications and Massachusetts not wanting to let Virginia decide too much, and the like. (The Bill of Rights says "Congress shall make no law" about religion: at the time, that allowed individual states to have established religions.)

Originalism also strikes me as being like most Biblical "literalism" in that they start by deciding which pieces to take "literally" and which to more-or-less ignore. "The Supreme Court decides what the Constitution means" is, itself, something that the Supreme Court decided: a consistent hard-core originalist should recuse himself from cases that required interpretation of the Constitution, because there's nothing explicitly in the Constitution giving the court the power to do that.

The ability of Congress and the states to amend the Constitution, on the other hand, is in there explicitly, so "what exactly does the Fourteenth Amendment mean?" is a question that cannot honestly be answered by "nothing, because it wasn't written/passed by the Founding Fathers."

[ilanin.livejournal.com]

This is a frequent construction of the doctrine of textualism/originalism (Scalia used the former to refer to his approach to interpretation of statutory law and the latter to refer to his interpretation of constitutional law) but I've never heard it advanced by anybody who calls themselves an originalist.

Scalia himself certainly did not regard the wisdom of the framers of laws or constitutions as necessarily greater than that of judges ("It is [not] our task, as I see it, to enter the minds of the Members of Congress - who need have nothing in mind in order for their votes to be both lawful and effective..." [1]); he merely believed that since statutory and constitutional laws contained mechanisms for their own amendment and updating, for judges to take on this role for themselves was an usurpation of the legislature's power. ("Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.")

He went into much, much more detail in his normal entertaining style in a pair of lectures entitled "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws"; these lectures were preserved in text format and can be viewed here (http://web.archive.org/web/20060911103004/http://www.tannerlectures.utah.edu/lectures/scalia97.pdf).

As ever, one is not particularly guaranteed to agree with Scalia, or even to believe that he put his own theories into practice particularly well - personally, I think he succumbed to the temptation to legislate from the bench on increasingly frequent occasions as he got older, and in a recent case he failed to acknowledge something which was a fairly obvious example of the doctrine of scrivener's error he claimed to accept in the Affordable Care Act - but he is at least good at explaining things. So maybe I should put the tl;dr version of the 45 pages I've linked to in here too:

Another modern and forthright approach to according courts
the power to revise statutes is set forth in Professor William Eskridge’s
recent book, Dynamic Statutory Interpretation. The essence
of it is acceptance of the proposition that it is proper for the judge
who applies a statute to consider ‘‘ ‘not only what the statute means
abstractly, or even on the basis of legislative history, but also what
it ought to mean in terms of the needs and goals of our present day
society.’ ” The law means what it ought to mean.
I agree with Judge Calabresi (and Professor Eskridge makes
the same point) that many decisions can be pointed to which, by
subterfuge, accomplish precisely what Calabresi and Eskridge and
other honest nontextualists propose. As I have said, “legislative
intent” divorced from text is one of those subterfuges; and as I
have described, Church of the Holy Trinity is one of those cases.
What I think is needed, however, is not rationalization of this
process but abandonment of it. It is simply not compatible with
democratic theory that laws mean whatever they ought to mean,
and that unelected judges decide what that is.

1. Scalia, J. Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) (concurring in part and dissenting in part)

[davidgillon]

I'm thinking of stuff like this http://www.nytimes.com/politics/first-draft/2015/11/16/justice-antonin-scalia-questions-logic-behind-gay-rights-protections/ Arguing that gay rights could equally be applied to child molesters, when he was undoubtedly aware that child molester is a slur repeately used to bash LGBT people with is just plain nasty.