ORIGINALISM....

by Kevin Drum

ORIGINALISM....Of all the pillars of modern conservatism, the one that has long struck me as the most obviously absurd is the doctrine of orginalism. Think about it. Are we really supposed to take seriously the idea that the Supreme Court of 2005 — in an era of spyware, genetic mapping, and billion dollar hedge funds — is supposed to make its judgments based on divining the intent of a small group of men who lived in a simple agrarian community 200 years ago? Presented baldly, it's an idea that wouldn't pass muster with a bright 10 year old.

And yet, despite the fact that originalism is little more than a transparent and flimsy attempt to justify a fondness for 18th century social values, it has become the centerpiece of a vast and increasingly popular intellectual enterprise. As Dahlia Lithwick puts it today, "the majority of the nation seems now to be of the firm belief that there is only one way to view the U.S. Constitution: in the way the framers first intended."

The reasons for this are fairly obvious. First, a substantial fraction of the country would very much like to reinstate 18th century social values. Originalism is simply a means to an end for these people. Second, originalism provides a congenial guarantee of certainty: it is, say its proponents, a clear and simple yardstick for deciding constitutional questions. This appeals even to a lot of people who are perfectly happy with modern social values.

Of course, the certainty of originalism is a mirage. In fact, if anything, it injects more uncertainty into the judicial enterprise. After all, in addition to the sort of legal analysis that's required under any doctrine of constitutional interpretation, originalism also requires an attempt to apply the intent of the framers to situations most of them never dreamed of. This, in turn, requires a nearly PhD level of familiarity with 18th century history, social mores, legal theory, and philosophical thought — not to mention a science fiction writer's facility with "what if" questions. This makes constitutional interpretation harder, not easier.

Perversely, though, this leads us to the third reason for originalism's popularity: it's a great soundbite. It may add complexity to the judicial enterprise in practice, but if you don't think about it much it sure sounds like it simplifies things — and people like simple things. What's more, as Lithwick says, originalism has the field to itself these days. No one is even fighting back:

In a very thoughtful essay published last week in the American Prospect, Adele M. Stan argues, "Liberals have done virtually nothing to explain the Constitution to regular people in terms they understand." Before you call those sentiments classist or elitist, ask yourself when you last read a compelling defense of the "living Constitution" in your daily newspaper. And I don't mean a defense against the "activist judiciary" charge — these are not the same things. All too often these two criticisms are conflated, but it's certainly possible to imagine a "living Constitution" as interpreted by hands-off, minimalist judges.

Regardless of originalism's substantive merits, you can't fight something with nothing, which makes Lithwick's question a good one: why is it that liberals seem to have given up on formulating a simple and compelling alternative? Supreme Court Justice Stephen Breyer is apparently going to take a crack at it in Active Liberty, to be published next month, and with any luck it will stimulate a needed debate. It's time to stop allowing originalism to roam the field unopposed.