[The following text is a longer version of my LewRockwell.com publication]

When one hears Supreme Court nominee Elena Kagan confessing “We are all originalists” during her Senate hearing,[1] one might think that originalism is really in. But even if it is, what does it mean for libertarians? Ilya Shapiro recently suggested that originalism is ”necessarily libertarian.”[2] Is it really so? And what is originalism anyway? Some think that it is about judges abandoning “judicial activism” and accepting the original, libertarian understanding of the Constitution, the meaning the Framers intended to be preserved. It is not that easy though, and if libertarians want to engage in what promises to be a revival of the revolutionary doctrine (particularly disliked by zombies), they should understand both the advantages and limitations of the originalist interpretation of the Constitution.

WHAT IS ORIGINALISM?

There is no simple answer to the question “what is originalism?” The main reason is that there really is a variety of “originalisms.” Sometimes their proponents use helpful labels like “original intent originalism” or “New Originalism,” but often we are left to wonder what a self-proclaimed originalist believes his “originalism” to be. Fortunately, constitutional scholarship provides us with a useful conceptual framework which allows us to better grasp the issue.

Historically, the first version of originalism was “original intent” originalism. Lawrence Solum counts Robert Bork, William Rehnquist, Raoul Berger and Edwin Meese as fathers of this concept.[3] Those authors believe that “constitutional interpretation should be guided by the original intentions of the framers.”[4] Of course, many questions arise as to what the “intentions” are, whose intentions we should be concerned with and so on. Overwhelming and arguably conclusive criticism rendered original intent originalism dead and buried in the eyes of academics.[5]

However, this critique did not bury originalism for good. In 1986 Antonin Scalia called for changing the label “from the Doctrine of Original Intent to the Doctrine of Original Meaning.” This event marks the advent of “New Originalism” or “original public meaning” originalism. New Originalism is not concerned with intentions or expectation of the Framers. Instead, it tries to establish original public meaning of the Constitution (as ammended). What does it mean in practice? Usually, it means a tedious research in 18th century dictionaries, newspapers and legal treatises in search of the meaning that was shared by users of English at the time of ratification. (Obviously, to establish the original meaning of the Reconstruction Amendments we would consult 19th century literature.)

So, nowadays when we hear a renowned jurist saying that he endorses originalism, does it follow that he is a New Originalist? Not necessarily. For example, Justice Clarence Thomas in his last opinion in the gun rights case McDonald v Chicago, extensively uses argumentation that can only be classified under the old and supposedly long dead original intent variety. Jack Balkin noted correctly that Justice Thomas: “… conflates original meaning with original expected applications and original understandings.”[6] Even the godfather of New Originalism, Justice Antonin Scalia himself, seems not to be much of a originalist after all, as Randy Barnett had shown in his great paper “Scalia’s Infidelity: A Critique of Faint-Hearted Originalism.”[7]

Still, there is one major issue left: why should libertarians choose to endorse originalism at all?

JUDICIAL ACTIVISM AND RESTRAINT

Originalism, which is a formalist method of interpretation, constrains the judicial discretion. And this is a good thing, because it is reasonable to expect that the original meaning of the Constitution expresses more libertarian views than that of most of the judges. There are some judges who would widen the area of personal freedom compared to the original meaning, but most of them would not. Thus, it is prudent to accept originalism.

Originalism also provides us with an alternative standard of judicial activism. What is judicial activism after all? Some say that a judge is an activist when he strikes down a law, or a precedent, thus failing give deference to political branch of the government. According to this understanding both Warren Court and Rehnquist Court were activist (and the latter much more so), although their activism was directed towards very different goals. Originalists could say that a judge is an activist when he fails to strike down a law, or a precedent, that does not conform with original public meaning (or original intent, if anyone knows what that is) of the Constitution.

It is now easy to see, that for example, striking down Roe v Wade or the Federal Reserve Act, would be considered judicial activism under the first view, but it would not be considered as such when we accept originalist standard (assuming that Roe was wrongly decided on constitutional basis[8]).

INTERPRETATION AND CONSTRUCTION

Is it that simple? Again, the answer is no. The Constitution, as any other written law, consists also of vague and ambiguous expressions. The most analytically sophisticated versions of New Originalism, like Lawrence Solums’ “semantic originalism” or those of Randy Barnett and Keith Whittington, deal with this problem by introducing a distinction between constitutional interpretation and constitutional construction.

Constitutional interpretation is an attempt to establish the semantic content of the Constitution, as accurately as possible. Fortunately or not, so-called “open texture” is an intrinsic quality of any written law, and what that means is that sometimes semantic content allows for more than one valid reading. When it happens, constitutional construction gains in significance, because at this stage we supplement the semantic content to get the legal rule ready for application. Basically, every result of the construction stage that stays in the bounds of semantic content discovered earlier at the interpretation stage is permissible.

There are several theories of constitutional construction. According to Randy Barnett “any approach to constitutional construction must be normatively justified.”[9] Barnett himself proposes that construction be based on the concept of constitutional legitimacy, one that is not uncontroversial, because it relies on the existence of a duty to obey law mandated by the state, provided that some procedural restraints are in place.[10]

UNDESIRABLE RESULTS

From the libertarian point of view, showing the unconstitutionality of the Federal Reserve Act or the Social Security Act is obviously a desirable result of accepting originalism. Similarly with the original meaning of the Ninth and Tenth Amendments. But libertarians should remember that the framers of the Constitution and the Amendments were not necessarily libertarian. Of course, New Originalism is not concerned directly with the authors, but nevertheless we have to concede that Constitution is not a pure libertarian manifesto.

The original meaning of the First Amendment might not be as radically libertarian as we would like it to be. J. H. Huebert makes similar case in respect to Fourteenth Amendment.[11] Accepting originalism is a strategy, and for this strategy to succeed, libertarians should not follow the example of Justice Scalia, who forgets about his originalism when it could contravene his extralegal beliefs.[12]

SHOULD LIBERTARIANS ENDORSE ORIGINALISM?

Libertarians are not a majority, and presumably will not become one in the foreseeable future. If they want to achieve greater liberty in this political system, they should be able to use arguments that may appeal to judges. That being said, libertarians may consider originalism as “the most appealing way”[13] to interpret a written constitution, as there is great evidence that this method of constitutional interpretation yields the most libertarian results.

If one does not believe in intrinsic legitimacy of the Constitution (and some libertarians do believe in it, take Randy Barnett for example), then there is nothing in this method that would make it “necessarily libertarian.” The acceptance of originalism requires a consequentialist approach: we expect better outcomes with originalism than without, given all the constraints of our political system.

It is a bundled deal nevertheless, and it might happen that originalism will give us some undesirable results. To reject originalism only when it does not suit us (following the example of Antonin Scalia) undermines the originalist argument in other cases. Originalism comes at a cost, but I believe that it is a cost worth paying.

Of course, there is a risk of idealization and romanticization of originalism, and that should be avoided. Originalism is not a panacea or a complete answer to the problem of big government. Arguably there are better ways to promote the agenda of personal freedom: nullification may be one, grassroots political action might be another. Accepting originalism does not mean abandoning more principled, rights-based approaches. Libertarians should still criticize the state and even the Constitution. It means only that they should accept rules of the judicial game and play along to win as much as possible.

REFERENCES

• [1] David Ingram, Kagan: ‘We Are All Originalists’, The BLT: Blog of Legal Times, 29 June 2010, http://legaltimes.typepad.com/blt/2010/06/kagan-we-are-all-originalists.html
• [2] Ilya Shapiro, McDonald: big victory for liberty, SCOTUSblog, 28 June 2010, http://www.scotusblog.com/2010/06/mcdonald-big-victory-for-liberty/
• [3] Solum, Lawrence B., Semantic Originalism (November 22, 2008). Illinois Public Law Research Paper No. 07-24. Available at SSRN: http://ssrn.com/abstract=1120244
• [4] Ibid.
• [5] Barnett, Randy E., An Originalism for Nonoriginalists (October 1999). Boston Univ. School of Law Working Paper 99-14. Available at SSRN: http://ssrn.com/abstract=215708
• [6] Jack Balkin, McDonald: More Important in Theory than in Practice, Balkinization, 28 June 2010, http://balkin.blogspot.com/2010/06/mcdonald-more-important-in-theory-than.html
• [7] Barnett, Randy E., Scalia’s Infidelity: A Critique of Faint-Hearted Originalism. University of Cincinnati Law Review, Vol. 75, No. 7, 2006; Boston University School of Law Working Paper No. 06-01; Georgetown Public Law Research Paper No. 880112. Available at SSRN: http://ssrn.com/abstract=880112
• [8] For example, Jack Balkin claims that a right to abortion is consistent with the original meaning, see: Balkin, Jack M., Abortion and Original Meaning. Constitutional Commentary, Vol. 24, No. 101, 2007; Yale Law School, Public Law Working Paper No. 128. Available at SSRN: http://ssrn.com/abstract=925558
• [9] Randy Barnett, Whatever It Is, He’s Against It, The Volokh Conspiracy, 11 February 2010, http://volokh.com/2010/02/11/whatever-it-is-hes-against-it/
• [10] For the critique of Barnett, see: J. H. Huebert, Book Review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett, Journal of Libertarian Studies, Vol. 19 Num. 2; J. H. Huebert, No Duty to Obey the State: Reply to Barnett, Journal of Libertarian Studies, Vol. 19 Num. 4.
• [11] Ibid.
• [12] Barnett, Randy E., Scalia’s Infidelity: A Critique of Faint-Hearted Originalism. See also Balkin’s comment: “This is not a claim that his views on race are not sincere; rather it is that they have little to do with his originalist methodology. Justice Scalia is, despite his protestations to the contrary, a living constitutionalist, just a very conservative one.” Jack Balkin, Scalia’s Biggest Problem isn’t Brown, It’s Bolling and Loving, Balkinization, 28 October 2009, http://balkin.blogspot.com/2009/10/scalias-biggest-problem-isnt-brown-its.html
• [13] J. H. Huebert, Book Review of Restoring the Lost Constitution: The Presumption of Liberty by Randy E. Barnett, Journal of Libertarian Studies, Vol. 19 Num. 2.