On originalism

I would like to address the latest conservative word de jour, "originalism," with regard to the federal judiciary, and another phrase often tossed in for emphasis is the notion of "legislation from the bench."

Several points need to be made here. First of all, the framers were quite familiar with the notion of "judge-made law" or "legislation from the bench." The English system of law is based in the common law, or law derived from precedential decisions by judges. Unlike countries with civil law systems, which are based on codifications and historically derived from Roman law, case law was the primary source of law in common law countries. If one was unfortunate enough to venture into law school, virtually your entire first-year curriculum of substantive classes (with all due respect to civil procedure) would involve reading cases, as the law of contracts, real property, personal property, torts and even much of the criminal law was "legislated from the bench."

The distinction has been blurred recently, as much customary common law has been codified and legislative and administrative bodies have moved into areas not covered under common law, but the framers were certainly familiar with the notion that judges made as well as interpreted the law. Of course, this is merely illustrative rather than dispositive, because courts approach common law issues differently than they do questions of constitutional or statutory construction. While courts are guided by canons of construction when interpreting statutes, it is important to note that these canons have emerged over time based on the judicial experience of jurists versed in a common law tradition.

How also do we divine the "original" intent? After all, the document does not guide us in that regard. If the framers wanted us to rely on their specific views of particular provisions, why were the records of the constitutional convention sealed away for more than two generations? Today, courts look to the "legislative history" of debates and reports in construing statutes. The deliberations of the framers were secreted away and federal law developed without the use of their discussions as a point of reference for half a century.

In addition, whose views of "original intent" should be controlling? We can talk of the "framers," but this is no monolith. We have a tremendous divergence of thought both within the Philadelphia convention and in the ratification conventions throughout the various states. For example, Oliver Elsworth of Connecticut, one of the "Committee of Five" that prepared the first draft of the constitution and a future chief justice, wrote that the document "defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so."

And of course, we also have the sage advice of Alexander Hamilton, who wrote in Federalist Paper #22 that "Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations."

So, it seems to me that one must be very careful when considering the cant of originalism. Rather than viewing the constitution through a fixed lens of the framers' intent, the result of looking backwards is often the ever-changing view through a kaleidoscope. Originalism in so many ways then becomes a convenient disguise for legitimizing "our" view of constitutional theory rather than protecting and promoting "theirs."