In the article Originalism’s Charade from the New York Review, David Cole provided a thorough trashing of originalism as a method of performing constitutional interpretation (see Constitutional Law and Originalism: Assemble Your Biases, Formulate a Justification). In so doing, he destroyed the legal theory designed to support radical conservative political reasoning. He then pointed out that those supporting a more flexible constitutional interpretation needed a comparable, easily explained framework with which to counter conservatives. He used a review of a book by James E. Fleming, “Constructing Basic Liberties: A Defense of Substantive Due Process,” to illustrate an appropriate approach: common law constitutional interpretation.
This methodology would have been well understood by the framers of the Constitution because it was consistent with English law, the system under which they were living, and had always lived. Under this system, referred to as “common law,” statutory law was supplemented by a judicial procedure in which the vagueness of statutes could be elucidated by judicial rulings based on judicial precedents and public appraisal thereof. Additional legal rulings could be generated in the same manner whenever disputes arose that were not explicitly covered by statutory law. This is precisely the approach that all judges have had to take when facing a new legal situation: follow judicial precedents informed by public response, and vary rulings when precedent no longer provides an adequate response. Constitutional interpretation can be carried out in precisely the same manner, an approach that arguably is what the Constitution’s authors expected.
“Scalia and other originalists have routinely charged that this failure to spell out with specificity an alternative theory of constitutional interpretation means that judges using these methods are free to impose their own personal value judgments.”
“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.’ It’s what judges at every level have always done when they confront new cases not fully covered by past decisions. When the Supreme Court takes up, for example, whether the Constitution precludes regulation of content on the Internet or whether Congress can require individuals to purchase health insurance, it does not simply try to divine what the founding generation would have understood about something they never thought about, but instead looks to its own precedents on the relevant provision, identifies the principles that unite them, and explains how it understands them to apply to the new circumstance. Those explanations are then subject to the test of public scrutiny, academic critique, and subsequent review.”
When constitutional law is taught to budding legal scholars, they are not trained to memorize and analyze the precise wording in the Constitution, they are trained to understand the legal reasoning in the hundreds of judicial cases that have supported the evolution of our society under the umbrella of the written Constitution. It is this process that has allowed our nation to progress and to prosper.
“For this reason, when law professors teach constitutional law, we assign casebooks, composed of hundreds of significant decisions handed down over more than two centuries, not eighteenth-century dictionaries. It is the Court’s evolving decisions, much more than the ‘original meaning,’ that define what the Constitution means today. While interpretation of the First Amendment may start with the words ‘Congress shall make no law,’ the meaning of free speech is not to be found in those words’ ‘original meaning,’ but in the hundreds of cases that the Supreme Court has decided over the years, employing an incremental common law method that has resulted in a far more robust First Amendment today than the framers envisioned.”
Originalism is a radical political construct designed to
limit progress in our society and in our economy. There is a better way.
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