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03/13/2017

Harold Anthony Lloyd: Why Originalism Cannot Work
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art on SSRN. Here is the abstract:

Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” It's hard to see how such Originalism withstands scrutiny.

First, using “reasonable reader” understandings rather than speaker meaning turns language and law on their heads. Audiences effectively become the speakers in ordinary speech (since reader or audience meaning prevails), and audiences (and thus the ruled) effectively become the rulers when interpreting law (since audiences' meaning prevails).

Second, since laws look forward to govern conduct, how can best legal practices keep such a backward focus?

Third, words (however understood by others at the time “originally” uttered) may or may not (depending on speaker and not reader meaning) signify concepts whose meanings embrace change over time. For example, the word “planet” used by a speaker before the discovery of Uranus and Neptune may or may not include further planets depending upon the meaning of "planet" adopted by the speaker. Unlike the "reasonable" reader of Gorsuch's Originalism as phrased above, speakers run the gamut from reasonable to unreasonable, from informed to uninformed, and from thoughtful to thoughtless.

Fourth, to the extent a judge is principally "constrained" by a text or texts (as he may determine), by dictionaries that the chooses, and by “history” as the judge understands it, isn't judicial activism encouraged rather than restrained? Talk of a "reasonable" reader masks the fact that their [ed.: there] can be multiple "reasonable" conclusions of what a speaker meant[.] Is a judge not therefore left to pick definitions and application of terms that accord with the judge’s understandings of history, understandings that may well be colored by the judge’s politics and judicial philosophy? This applies to principles as well as labels for things. Principles are also subject to multiple frames and their terms are subject to multiple definitions therefore raising the very same questions just raised above.

Finally, Originalism doesn’t merely fail with legal texts. It also fails when applied to other texts (including sacred texts such as the Ten Commandments) and when used to interpret art (such as "Landscape with the Fall of Icarus" often attributed to Bruegel and which inspired such great ekphrasis as Auden's "Musée Des Beaux Arts"). These further failures underscore the dysfunction of Originalism as described by Gorsuch above.

At Legal Theory Blog, Larry Solum has critical comments beginning: 

The author does not cite any work by contemporary originalists in support of the notion that originalism limits the original meaning of a term to the extension of the constitutional language at the time each provision is framed and ratified.  And there is a good reason that no citations are provided: no contemporary originalist (of whom I am aware) holds this view.  Consider the application of Lloyd's argument to the term "states."  The logic of the argument implies that "states" should be limited to the 13 states that were identified in the text ..., but that understanding of the meaning of "states" is directly contradicted by the text of the constitution itself--which provides for the admission of new states to the union. ...

I agree (with Professor Solum), though I like that Professor Lloyd capitalizes "Originalism" (which, perhaps oddly, most originalists do not).

I'd also add that of Professor Lloyd's five reasons originalism "cannot work," the first two are at best arguments why it's normatively a bad idea, not reasons it "cannot" work; the fourth depends on the conclusion that originalist judges are comprehensively dishonest, a point not proven; and the fifth seems irrelevant (law being different from art).  [The third reason is the one directly engaged by Professor Solum].