Peter Smith: Originalism and Level of Generality
Peter J. Smith (George Washington University Law School) has posted Originalism and Level of Generality (Georgia Law Review, Vol. 51. 2017) on SSRN.
Here is the abstract:
Even if one concedes that the meaning of the Constitution today is its original meaning, at what level of generality should one seek that meaning? In considering whether bans on same-sex marriage violate the Fourteenth Amendment, for example, should we seek to determine how the framers of the Amendment would have answered that question, or should we instead seek to discern the broad principle — perhaps “equality” or “no caste-like discrimination” — that the Amendment objectively incorporated, even if application of that principle today might produce results that the framers would not have anticipated? The level of generality at which we ask the question almost foreordains the answer. But how should a faithful originalist identify the proper level of generality?
The old originalism focused on the original intent of the framers, and it sought to ascertain that intent at the most narrow level of generality. Under this approach, if the framers believed that a particular practice was constitutional, then it is constitutional today. The old originalism was principally concerned with judicial constraint and judicial restraint; confining judges to a narrow historical inquiry promoted the former, and narrowing the scope of individual rights promoted the latter. But the old originalism suffered from serious defects, including the fact that it could not justify Brown v. Board of Education and other cases that are central to our constitutional identity today.
The new originalism, which generally seeks the objective original meaning of the text instead of the original intent and treats as non-binding the framers’ expectations about how the text would apply, has addressed many of the theoretical defects of the old originalism. New originalists generally acknowledge that because many of the Constitution’s most contested provisions are framed in abstract terms, we should seek their objective original meaning at a correspondingly high level of generality. But the higher the level of generality at which we seek original meaning, the more room there is for judicial creativity in applying the Constitution’s broad principles to issues that arise today.
Indeed, by embracing interpretation of the text at a high level of generality, new originalists have opened the door to interpretations that would have come as a big surprise to the old originalists: originalist arguments not only that Brown was correct (notwithstanding the well-established view at the time of the framing of the Fourteenth Amendment that it would not disturb the common practice of racially segregated schools), but also that the Amendment prohibits gender discrimination, interference with a broad and potentially undefined group of unenumerated rights, and even bans on same-sex marriage.
These arguments might come as a welcome surprise to those who are skeptical of originalism, but they also come at a cost. First, there is little to distinguish these ostensibly originalist arguments from non-originalist approaches to interpretation, most of which begin by reading the text at a high level of generality and then seek to rely on practical judgment to apply the principles behind the text to modern circumstances. Second, new originalism’s flexible approach to the level of generality means that the approach cannot fulfill its promise of judicial constraint.
Indeed, in practice originalists have varied the level of generality at which they seek original meaning, often from case to case and issue to issue, in ways that cannot be explained simply by reference to the level of abstraction at which the constitutional text is expressed. This article documents that phenomenon, and concludes that sooner or later originalists will have to choose between their claims of constraint and neutrality, on the one hand, and legitimacy, on the other.