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03/29/2017

Ken Levy on the Problems with Originalism; James Rogers Responds
Michael Ramsey

At Liberty Law Blog, James Rogers: Originalism and the Shakespeare Test (responding to this New York Times piece by Ken Levy [Louisiana State]: The Problems With Originalism).

Professor Levy starts off with a good definition: 

Textualism says that when interpreting the Constitution, judges should confine themselves to the words of the Constitution. Originalism says that if the words are at all unclear, then judges need to consult historical sources to determine their meaning at the time of ratification, and the correct application of these words to new cases should clearly follow.

I think that's fine except for the phrase "should clearly follow."  I would say instead "may become clear."  Once again, originalism does not necessarily claim that it will make most issues clear; it only says that when the original meaning is clear, it should be followed.

Professor Rogers responds with his "Shakespeare test":

Here’s what I call the Shakespeare test. I substitute “Shakespeare play” and related words for the “Constitution.” The point is simply to judge whether, and to what extent, a proposed method of reading the Constitution differs from what we’d use when reading something more familiar. (It doesn’t need to be a Shakespeare play. It could be a baseball rulebook, or a math textbook, or the newspaper. Whatever.) Let’s try it with Levy’s paragraph:

Textualism says that when interpreting a Shakespeare play, readers should confine themselves to the words of the Shakespeare play.

Well, I’m unsure I would use the word “confine.” But, yeah, if we’re reading a Shakespeare play, then of course it’s the text of the Shakespeare play that we’re trying to interpret. It’s not really confining. It would be odd to try to interpret Henry V by, say, exegeting passages from The Crucible.

Originalism says that if the words [of a Shakespeare play] are at all unclear, then readers need to consult historical sources to determine their meaning at the time it was published . . .

Well, yeah, pretty much. At least if we’re interested in understanding what Shakespeare wrote in the play.

and the correct application of Shakespeare’s text to new situations should clearly follow.

Well, here Levy sets up a straw man. ...  As best I know, no sober textualist or originalist ever said application should “clearly follow” from application of the methods. Indeed, those I’ve read typically underscored that application isn’t necessarily clear or easy. But back to the Shakespeare test, there is, to be sure, a lot of wisdom to be chewed on in Shakespeare plays. The application of that wisdom to novel circumstances in one’s life today, however, is not necessarily clear. Indeed, readers can argue over what this or that passage might mean today. I don’t see that as a barrier, however, to trying to understand what Shakespeare actually wrote [or] to trying to apply it to one’s life today.

I'll add two thoughts.  (1) The indeterminacy criticism of originalism might have some bite if originalism really did not yield definite answers on any contested issues.  Originalism might then seem pointless.  But I do not think the indeterminacy critique can make this claim.  Here are two quick examples from my field (foreign relations law).  First, I think -- after a good bit of study -- that the original meaning of the Constitution is that the President cannot start a war without Congress' approval.  Not all originalist scholars agree with this view, but I think most do.  Second, I also think the Constitution's original meaning did not allow for sole executive agreements to preempt state law (contra United States v. Belmont).  Again, most originialists who have thought about the issue agree, and I'm not aware of a sustained argument to the contrary.

Does Professor Levy think I'm wrong on these two points?  Then he should make the arguments.  Otherwise, why should we accept his claim that originalism is categorically indeterminate (if that is what he's saying)?  True, it's not that easy to prove that originalism is always indeterminate; it would require examining originalist claims across a wide range of subjects.  But that's my point: unless one has made a comprehensive study, one should not make categorical claims.

Professor Levy likely would respond that he only means to claim that originalism is indeterminate in a large number of areas.  But as argued above, that isn't an argument against originalism.  It's just an argument against thinking that originalism will solve all our interpretive problems.

(2) In any event, suppose originalism is always indeterminate.  Why is that such a problem?  Professor Levy says that then it is "nothing more than [a] thinly veiled disguise[ ] for modern political conservatism."  But Professor Levy himself says that judges should take into account "the public policy consequences of each possible decision" and that they should "interpret constitutional language in light of our own, not [the framers'], moral and linguistic norms."  If conservative judges decide according to "the public policy consequences of each possible decision," they will reach results consistent with "modern political conservatism" -- apparently just what Professor Levy thinks they should do.  So originalism would not really lead to different outcomes in this scenario.  At worst, it is a distraction not affecting the result.

In sum, I think Professor Levy is partly right: sometimes originalism is indeterminate (or yields a very close call), and judges being human, they may often in such cases decide according to their moral or policy intuition.  Thus conservative judges will end up with a conservative result.  However, he's hardly in a position to complain about this outcome, since he thinks that's what judges should do anyway.  I also think he is partly wrong: sometimes originalism does give definite answers, and in these cases the honest originalist judge (and surely most are honest to this extent) will pick the originalist outcome.  The real debate should be whether in these cases, we want the judge to follow the determinate original meaning or the judges' moral and policy intuitions (which, for a conservative judge, will be conservative).  Claims that originalism is (sometimes? always?) indeterminate only distract us from the debate that matters.