Friday, September 29, 2017

Selling a Cramped Originalism

I make my living in the courts.  My job (and yes, I'm oversimplifying like crazy; live with it) is convincing judges* that they should do what I want them to do, decide the way I want them to decide.  Doesn't matter if I'm right.  What matters is that I win.

The best, most logical argument in the world ain't worth shit if the judge doesn't buy it.  Arrant nonsense that the judge accepts?  BINGO! 

It's a real world business this lawyering thing.  And so, and I know this will make some lawprofs cry, day-to-day and case-by-case I don't really care how we should understand/interpret/analyze/whatever the Constitution.  

In the scheme of things, though, it matters.  A constitutional republic (and pretty much everyone agrees that's what we have) can take many forms, even framed by the broad outline of our Constitution.  The republic Clarence Thomas thinks we have (or ought to have if we understood and applied the Constitution properly - i.e., as he does) is a very different place than the one that, say, Stephen Breyer imagines.  And neither looks all that much like . . . well, maybe like yours.

Which brings me to Ilan Wurman's mistitled A Debt Against the Living: An Introduction to Originalism.**  Mistitled because it's not an introduction at all it's an argument.  

Wurman isn't interested in explaining how originalism actually operates.  He doesn't say what it looks like in practice.  There's no particular vision of the republic here beyond the claim that an originalist republic would have a lot smaller federal government than ours.  

Instead of an introduction to originalism, Wurman's is an argument for originalism.  The book, he says, 
aims to arm the reader with basic arguments about the legitimacy of Constitution and our Founding, and to explain the relevance of these arguments to modern debates over constitutional interpretation.  It argues that the Constitution does form a debt against us - against the living generation - that compels us to continue to obey and abide by it today. It then argues that originalism, the idea that the Constitution should be interpreted as it was originally understood by the Framers who wrote it and the public that ratified it, is the only method of constitutional interpretation that faithfully discharges this debt.
Maybe.  But before I get to the carping, let me lay it out.  It works, roughly, like this.

First, there's what's virtually a given for Wurman:  Of course we should understand the Constitution as it was understood by those who wrote and ratified it.  Any other approach is understanding a lie. After all, when the Constitution says that the President must be at least 35 years old, if we think 40 is better and treat 40 as the rule . . . .  (That's not his example; his example involves fried chicken seasoned with "pepper to taste" but a preference for rosemary.)  

Well, sure.  But that's not a different way of reading or applying the Constitution.  That's rejecting the Constitution.  It's not the originalist's bogeyman of the "living Constitution."  It's just a new rule with no pretense to being an understanding or interpretation or even application of the Constitution.  And while there are certainly those who'd chuck out the Constitution we have in favor of whatever, they aren't the plausible opposition.

Everyone who matters in this debate believes in the Constitution.  The disagreement is in how to apply it.  Wurman's claim is that we should apply the "original public meaning," how it was understood at the time.  Not particularly by the folks who wrote it.  And not by the folks who adopted it.  But by . . . well, by the public (whoever they are).  And we can know how the public understood it by studying what Madison said in the Federalist Papers (not so much what Hamilton said, perhaps because he understood the Constitution differently than Madison).  And also by looking at what prominent folks thought it meant.  

All of which strikes me as . . . .  Well, Brennan spoke of the hubris of imagining that we can tell how the Framers would have viewed issues arising today that were beyond possibility in 1781.  And others have pointed out that Judges and Justices (and lawyers for godssake) are not historians.  But of course that doesn't mean they shouldn't try or that they can't come close.

So sure, Wurman says, we apply the Constitution as it was understood from the get go because that's what we do.  Not particularly satisfying, but there it is.

And now that we know how to interpret the Constitution, the question is whether we should bother. And of course we should.  Because "We the people" (or at least the white male property owners) adopted it.  And because it's a good thing - despite all the ways it's a bad thing.  And because, well, sure.  Which is about as non-controversial as it gets except for those folks who'd just toss it aside - and really, that's not who Wurman's talking to - or even who I am.

OK, so originalism is good and the Constitution is good.  And other approaches, hey they're malleable.  This week's flavor may not be next weeks.  They're just preferences and politics.  Which isn't nonsense, but Wurman blows the other folks off pretty quickly.

In any event, having now convinced you (Wurman seems to think), the only real question is whether originalism supports Brown v. Board of Education.  If originalism would accept separate but equal schools, then even if it's the only proper way to read the Constitution, it should be abandoned.  Shockingly, Wurman think originalism and Brown are a match made in heaven.  And he explains why.  Maybe you buy it, maybe you don't.  Most originalists do, he says, though he acknowledges that some don't. And, although he doesn't say it, I take it that the folks who don't, since they're originalists, also don't think the Brown test is all that significant.

The problem with Wurman's originalism is that it's cramped.***  Because it was to be a government of limited powers, if it isn't explicitly allowed, it must be forbidden.  (Except, of course, when he wants to stretch a point to get a result he wants - which he is mostly how he gets to originalism endorsing Brown.)  

But there's another way that, if the term weren't taken, you could also call originalism.  Ask what's the Constitution trying to achieve.  How, within its scope and framework, understanding it's lexical terms broadly rather than narrowly, do we get there?

Consider the Fourth Amendment: 
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And I get it that the Constitution doesn't say anything about an exclusionary rule for violations.  Wurman says that, therefore, originalist understanding would abolish the exclusionary rule.  But the exclusionary rule exists because without it the Fourth Amendment is no more than aspirational (we're remarkably close to that these days, but that's a different post).  If the Amendment is to be effected, the rule is a necessity.  So it's not part of the document and pretty clearly it wasn't part of the "original public understanding."  But effecting the Fourth Amendment requires it.  Which seems to me, but not to Wurman, the right test.

A Debt Against the Living is short.  It's mostly lucid.  You don't have to be a scholar, not even a lawyer I don't think, to get his argument.  But it's glib.  Too often trimming a bush  and declaring the forest cleared.  

On the other hand, based on the blurbs from some respectable and prominent originalists who seem to think the book brilliant, maybe the problem is that I'm not sufficiently of the choir to which he's preaching.
*Juries, too, but less often and in any case they aren't relevant to where I'm going with this.
**The title is taken from a letter James Madison wrote to Thomas Jefferson.
***Wurman acknowledges that there's a strain of originalism that reads the Constitution more broadly than he does.  Having acknowledged the fact, he then pretty much ignores it.
My thanks to Cambridge University Press for sending me a copy to review.

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