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11/09/2019

George Christie: The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism
Michael Ramsey

George C. Christie (Duke University School of Law) has posted The Well-Intentioned Purpose but Weak Epistemological Foundation of Originalism (Connecticut Law Review, Vol. 51, No. 2, p. 451, 2019) (31 pages) on SSRN.  Here is the abstract:

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires.  They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that goal is achievable is highly unlikely, as is shown by the large number of five-to-four decisions of the Court. The original understanding is often hotly contested and, as shown in this Essay, often inconsistently applied. It is naive to expect that, once the Court claims to have discovered the original understanding, a future Court would not disagree.

Significant members of the founding generation realized that, in the process of interpreting and applying the Constitution, its meaning would evolve, even in ways that were contrary to the expectations of the Founders, and this is what has happened. In trying to halt and even overturn those developments, originalists have also failed to consider that the founding generation was concerned with more than the semantics of the Constitution as if it were a secular scripture.

As is argued in this Essay, the Founders also had understandings about what was the comparative importance of its clauses in case of conflicts. In adopting the Constitution their ultimate purpose was to create a lasting political society. It is hard to believe that they would accept economic collapse or civil unrest for what some judges believed was textual faithfulness.

As to the first point, Justice Scalia would say: originalism doesn't have to be perfect in achieving objectivity and certainty; it just has to be better than competing theories.

As to the second point -- is Professor Christie suggesting that the political branches should depart from the text as necessary (in their view) to head off "economic collapse or civil unrest"?  So the President can decline to hold an election or to leave office after four years, and rule by decree, to avert economic collapse or civil unrest, via an implied emergency power?  I'm not sure he really wants to make that claim, and I think to the contrary the framers wrote the text in the way they did exactly to prevent such claims.