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Should It Be Illegal to Interpret the Constitution as a Living Document?

Thursday, April 19, 2012

Damon W. Root

Originalism is the school of legal thought which holds that the Constitution should be interpreted according to its original public meaning at the time it was written and ratified. One of the virtues of this approach is that it forces both lawmakers and judges to grapple with the document’s text and history, rather than simply treating the Constitution as a blank slate where they might write out their own policy preferences.

Brian Nieves, a Republican state senator from Missouri, is apparently so taken by what he perceives to be the charms of this approach that he wants to outlaw all other forms of constitutional interpretation. To that end, Nieves has introduced a bill, SJR 45, that would amend the Missouri constitution to require all state officials to “interpret the Constitution of the United States of America based on its language and the intent of the signers of the Constitution at the time of its passage.” Moreover, the bill continues:

Any interpretation of the Constitution based on an emerging awareness, penumbras or shadows of the Constitution, a theory of the Constitution being a "living, breathing document", or any interpretation that expands federal authority beyond the limited powers enumerated and delegated to the federal government, without an amendment to the Constitution, shall be deemed to exceed the limited powers enumerated and delegated to the federal government.

There are a lot of big problems in this little passage. For starters, the field of originalism long ago abandoned the quest to determine the subjective original intentions of the Constitution’s framers. As conservative legal icon Robert Bork, one of the initial proponents of the theory of original intent, later clarified in his 1990 book The Tempting of America:

The search is not for a subjective intention. It is important to be clear about this. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay and collect taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. Nor would the subjective intentions of all the members of a ratifying convention alter anything. When lawmakers use words, the law that results is what those words ordinarily mean.

The fact that Nieves employed the suspect phrase “intent of the signers” suggests he might not entirely understand the legal methodology he claims to support.

But it gets worse. Let’s say Nieves correctly drafted the language of his bill to refer to originalism as seeking the original public meaning of the text (what Bork called “what those words ordinarily mean”). Who gets to decide whether or not Missouri lawmakers and judges are actually following that instruction? To put that another way: Originalists disagree all the time about matters of constitutional interpretation. Just yesterday, in fact, at National Review’s legal blog Bench Memos, conservative lawyer Ed Whelan and libertarian lawyer Paul Sherman debated whether or not the Constitution protects the unemumerated right to economic liberty. In my view, Sherman made by far the stronger originalist case, but that doesn’t mean every self-proclaimed originalist is going to buy it.

And then there’s the growing school of progressive originalists to factor in. The lawyers at the left-leaning Constitutional Accountability Center, for example, also justify their arguments by appealing to the Constitution’s text and history. Will they get a free pass under the proposed Missouri amendment? I think we can safely assume that Nieves never intended that result.

If originalism is going to win out over other theories of constitutional interpretation, it will do so in the marketplace of ideas, not via a sloppy and incoherent piece of legislation.