Legal Interpretation Is Hard, and Originalism Doesn't Work
There's no substitute for the messy process of common law rulemaking and reasoning from precedents
One of the dead horses I like to beat online is about legal journalism. Journalistic enterprises seem to think that legal expertise isn’t “real” expertise, so instead of actually talking to practitioners and law professors for insight on this complex subject, they hire a journalist (often someone who has never represented a client in his life) who just reads court opinions and opines and analyzes them as a purported expert.
I wonder if that is connected to the phenomenon that you see online, especially on the right, which assumes that legal interpretation is easy. In the common right wing version, judging is just a matter of following the text. Or, if it isn’t about following the plain text, it’s about determining the original understanding of its authors. That’s it. Easy does it! And, of course, that means that thousands of cases which rely on precedent or use other rules of construction are wrongly decided and, often, the person says that the courts should overturn them all.
The basic problem here is the classic assumption of the dissenter in a field- that nobody ever thought of your brilliant idea before. Occasionally, dissenters in a field are right, and the culture loves to celebrate the story of the person who took on the establishment and won. But most of the time, the expert consensus is right, and the dissenter is simply ignoring the reasons the experts came to that consensus. This is certainly true with legal interpretation.
The problems of legal interpretation are, roughly, as follows: (1) because statutes and constitutional provisions stay on the books a long time, there are many scenarios that were never anticipated by the authors (and sometimes were not even possible at the time of authorship); (2) texts are written by legislatures, compromising to get the votes for passage, and therefore things are sometimes intentionally left ambiguous; (3) the intention and understanding of authors and/or the public usually exists on a very general level; and (4) in interpreting texts, courts develop a body of law which lawyers and clients rely on when engaging in their daily lives.
I might add this is not unique to statutes. Contracts work the same way- if they stay in force long enough, circumstances arise that were not anticipated; they often leave terms open or ambiguous when the parties want to make a deal but can’t agree on the term; the parties’ intentions are often very general; and parties who deal with each other a lot develop reasonable expectations based on their prior course of dealing.
The thing is, nobody- and I mean nobody- is calling for pure originalism as a solution to the problems of contract law. Even all the originalist judges and legal scholars you read about either ignore contract law or concede that the basic rules of contract interpretation, a jumble of originalist and non-originalist methods, as well as rules developed in court cases, are reasonable. It’s good enough for the business world (and right wingers care a lot about the business world!)- what right wing advocates are looking for with respect to statutes and the Constitution is a way that they can call all of the case results they don’t like not simply incorrectly decided, but fundamentally illegitimate, “making up the law”.
And as I said above, just like contracts, the problems posed by statutes and constitutional provisions are difficult. For instance, take my first issue- things the drafters didn’t anticipate. The Fourth Amendment applies to wiretapping and to thermal imaging, as well it should. But obviously that’s not particularly originalist. Everyone understands the framers didn’t think about these things. You can draw analogies, which is what a lot of originalists do, but at the end of the day, you have to make a policy choice as to whether wiretapping a phone conversation is something you think the police ought to be able to do without a warrant or not. There’s no shortcut that originalism or textualism can provide you.
Or take the second issue. Conservatives love to say things like “if the legislature writes a bad statute, make them rewrite it”. But that doesn’t work even on originalists’ own terms- after all, the legislative intent and understanding was that the statute would be valid and enforceable. (Indeed, one objection to originalism is that the Constitution itself was written by non-originalists. The Seventh Amendment, for instance, references “the common law”, i.e., the iterative system of non-originalist precedent that we inherited from the British. There’s also the prohibition on “cruel and unusual punishments”- language that certainly seems to reside in the present tense, i.e., what’s “unusual” now. There is no proof that any framer understood that the Constitution would be interpreted according to originalist principles.)
So if we don’t rewrite that bad statute, what are we going to do? Well, originalism and textualism don’t really give you an answer- the text is ambiguous, and the original understanding was that the statute was going to be valid and the courts would figure it out. You have to go to other forms of interpretation- policy, how the statute “fits” with other statutes, past practice, and court decisions.
The third issue- the general nature of intent and understanding- also prevents originalism from providing the desired simple answers. We know that the framers of the Fifth and Fourteenth Amendment felt that there should be fair procedures before the government deprives you of your life or liberty. That’s what they wrote in the Due Process Clauses. What those fair procedures were? We have no idea. We have some examples of things they thought were fair, and, again, you can make analogies, but when an issue arises as to whether a suggestive photo lineup at a police station is an unfair procedure in a criminal case, original understanding tells us nothing other than “they intended only fair procedures”. Again, you are back to looking at case precedents and policy.
And finally, there’s a huge reason we don’t use originalism, which is that we need the law to be stable. People rely on the law, whether it’s a criminal suspect who knows if she says “I want a lawyer” during a custodial interrogation, that will invoke her Miranda rights, or a tax accountant who knows that several tax court cases ruled that a particular shelter was lawful, or a small business operator who relies on a regulatory agency’s previous adjudications that you don’t need to get a particular license to operate that kind of business. All of these things might be wrong as a matter of originalism (Miranda is surely questionable from an originalist perspective), and yet they are all, along with every other rule established by caselaw, relied on by people in all walks of life, from ordinary people to police officers and judges, in determining what the law is.
The common law is evolutionary, not revolutionary. Rules do get changed, but it is a slow process, and often the changes are prospective or not fully retroactive. And they can only occur in real cases and controversies, unless the legislature steps in and acts. That slow process frustrates activists who just want all the cases to come out their way, but it’s the backbone of reliance within the ordinary course of life. You can count on the law staying relatively stable.
Whereas in the originalist world the law is never stable, because different judges differ on what the original understanding is, and because of something Prof. Scott Lemieux calls “originalism’s ladder”, where originalists move among different levels of generality (e.g., making the test a very specific “the issue is whether abortion was specifically prohibited at the time the 14th Amendment was adopted” in an abortion case, but then switching to a very general “the issue is whether the Constitution created a broad zone of privacy” in a wiretapping case). So case results bounce all over the place, because judges are always looking at their own conception of what the original understanding of the Constitution was and ignoring the iterative effect of precedent.
A nice recent example of this is Preterm-Cleveland v. McCloud, a Sixth Circuit Court of Appeals case involving Ohio’s prohibition on abortions intended to terminate Down’s Syndrome fetuses. Under the common law system, this is a relatively easy case- the governing standard is the Supreme Court case of Planned Parenthood v. Casey, which says that the law is unconstitutional if it places an undue burden on women seeking an abortion. So the only issue is whether this law imposes a substantial obstacle or not.
Instead, though, Judge John Bush used the case as a vehicle to announce that he is no longer going to extend Supreme Court decisions to new fact patterns; rather, unless there’s a controlling Supreme Court case they cannot ignore, he will use his own interpretation of the original understanding of the Constitution. This would, if adopted, mean judicial anarchy. First of all, it would mean that lower courts could replace the Supreme Court’s undue burden standard with whatever they preferred. And second, think about if you were a state legislator, or an abortion clinic operator, or an activist trying to get a state law enacted. Do you have any idea what will be held to be constitutional under Judge Bush’s approach? Do you have any idea what the legal standard is?
Chief Justice John Marshall famously said “we must never forget that it is a constitution we are expounding”. What the law says is really important, and everyone in society relies on it. Originalism promises easy answers (and an easy way to demonize liberals as lawless). But what you get instead is legal anarchy, where nobody really knows what is illegal.