David Cole points out that originalism, the interpretive doctrine most associated with the U.S. Supreme Court and Constitution, has attracted so much attention in recent eras that his readers need a reminder of the alternatives. Cole writes in the New York Review of Books:
But there is a familiar and sensible alternative—familiar because every judge and justice in the history of the United States has employed it most of the time, even the few who profess on occasion to be originalists. This method starts with the text of the Constitution but recognizes that the ways its broad and open-ended provisions apply will be elucidated gradually over time as judges confront particular cases and seek to make sense of what has gone before, analogize from precedent to contemporary circumstances, and explain their reasoning to provide guidance for the future. The University of Chicago law professor David Strauss has called this method “common law constitutional interpretation.”
Cole would likely agree that a “common law interpretation” of the constitution fails to qualify as a distinct method–and he might argue that this is a good thing.
Cole’s article made me think that a distinguishing quality of other modern traditions of Constitutional interpetation is their willingness to accept the improvisational quality of all interpretative activity.
Maybe originalism’s most defining feature is not a fidelity to any foundational set of figures, sources, or meanings; instead what sets it apart is a striving for interpretive formulas, and the (supposed) elimination of judicial discretion. Cole does not say this, but his description gave me the sense that originalism had more in common with trends like quantification in the behavioral sciences, scientism against cultural explanation, Darwinian materialism–and of course biblical fundamentalism. In a speculative future, we could imagine other “originalisms:” maybe one based on fidelity to the radio communications of an alien civilization, the runic stones of an ancient archaeological site, or the esoteric patterns of falling leaves in a pond. Those could also be “originalist” in the same spirit as constitutional originalism, if the point is to limit interpretative possibility, to make it seem methodical, bound by a foundational source.
The problem with originalism is that the “text” of the founder’s intentions barely exists. Cole argues that even when those sources are available, they are not as authoritative as originalism’s proponents claim.
Cole ends with one of the best brief summaries of an alternative to originalism that I’ve read:
More importantly, why would we want to be bound in 2022 by the specific understandings of a subset of our forefathers who were not representative of the nation’s population even at the time, and who had no conception of the world we now inhabit? Surely it is better to ask judges to consider all the sources that inform what our Constitution means today, including doctrinal evolution, and to look to tradition for the ideals it professes, not the actual practices that often fall short of those ideals. Judges applying common law constitutional interpretation are not free to impose their own value judgments; they are constrained by what went before them, by the future implications of their decisions, and by the obligation to spell out the legal reasoning on which they rely. That is all we can realistically ask.
Constitutional interpretation has to be constrained by the legal specifics of the situation under review, but it should not hesitate to get into fundamental ethical and philosophical questions (what is equality? justice?) when these questions arise. To forbid this mode, like it is some grand exercise performed by heroes in the past–and closed off to contemporary mortals–is the fatalistic resignation at the basis of the originalist claim.