Some thoughts on jurisprudence: the third way is the right way.

Sometimes it seems as though jurisprudential philosophy breaks down along the same dual lines as everything else in modern politics: Democrats v. Republicans; liberals v. conservatives, left v. right, etc.

I realize that this observation is a bit crude as there are many nuanced views of constitutional interpretation beyond this duality; but bear with me as I stick with this binary categorization. I would classify the two competing jurisprudential philosophies as, on the left—the “living document” v. the right’s—“original intent.”

The living document view holds that constitutional principles are essentially opinions and since opinions change with the times, constitutional jurisprudence should similarly “evolve,” or the document should “live.” All constitutional rules can change from time to time. To these liberals, the document is so “alive” that judges are free to read out various parts of the text—like the 2nd Amendment—or otherwise twist the meaning of the text so that certain words have nothing to do with their common sense dictionary meaning, i.e., the concept of “interstate commerce” can mean anything even if wholly unrelated to interstate commerce.

The conservative “original intent” jurisprudence also believes that constitutional principles are essentially a matter of opinion, but that these opinions don’t change with the times. Rather what must guide judicial decision making is a “snap-shot” of dominant 18th Century opinion regarding how each Constitution provision was expected to apply. Now getting such a “snap shot” can be quite a complex and challenging endeavor. We might think that this “snap shot” is written into the text of the document, but we would be wrong as much of the Constitution’s text—indeed some of the most fundamental principles—are written in broad generalities. And when we do our best to examine the historical record to figure out the “dominant” opinion of the day, we will find (1) there were many competing views among the framers, often impossible to tell which was dominant (2) sometimes individual framers seemed to contradict themselves in their opinions, (3) sometimes a framer’s public opinions were belied by his public actions (do we looked to what he said or how he behaved?), and (4) that “the states’” understanding of a particular constitutional text might differ with “the framers’” understanding. And for many of the most contentious constitutional issues, some combination of all four of these problems are present (and others as well).

Another problem—one that I personally have—with trying to get a “snapshot” of the dominant understanding of particular constitutional text is that this pays homage to the “opinions” of long dead men who were subject to some pretty serious prejudices that our society has moved beyond. They didn't just get it wrong; sometimes they got it horribly wrong. Blacks, women, non-propertied white males, and in many circumstances, non-Protestants had little or no say in the “collective opinion” that we are attempting to ascertain. Moreover these are folks who practiced slavery, used to fight duels with one another as a means of settling personal disputes, who used to tar and feather as a means of punishment, who used to execute all felons as criminal punishment, not just those who took the lives of others. Why give such deference to folks who dealt in such prejudices?

(With all due respect to Justice Scalia, even he recognizes this problem with original intent and holds that changes in tradition can trump the original understanding of the framers, as long as the changes don't conflict with the text in any way. But such changes, according to his philosophy, must be "deeply rooted in this Nation's history and tradition." That’s why during the Lawrence v. Texas oral arguments you could literally hear him “thinking to himself” about tradition & sodomy laws: As he questioned the lawyers, you heard him wrestling with the fact that many states had scrapped their sodomy laws thus giving the appearance of a tradition of getting rid of sodomy laws. Scalia’s conclusion? This particular tradition has not been long enough; the changes were too recent to mean anything to him.

There are many problems with Scalia’s jurisprudence. One is that, in our liberal democracy, focusing so much on tradition gives every bit of deference to the “democracy” part—meaning mob rule—and little or none to the “liberal” part—meaning rights of the minority that are antecedent to majority rule. This philosophy does recognize that there are certain rights of minorities, not subject to majority whim—but only such rights as were understood by the people at the time the Constitutional text was written. Any expansion of such rights has to be done by democratic action, or, if by judicial recognition, only if long, hard, and deep tradition—again reflecting the collective dominant “opinion”—exists to justify such move. To this jurisprudence, “minority rights” are something that courts should recognize as sparingly as possible. The ultimate problem with this point of view is that Constitutional principles/rights effectively boil down to whatever the majority thinks is appropriate).

There is a “third way” jurisprudence that properly rejects the aforementioned two. This view is sometimes called “liberal originalism,” and Randy Barnett’s “original meaning originalism” seems to be a variant of this view. The central problem with both the "living document" and "original intent" methods is that each views Constitutional principles as “opinion” and "opinions" are essentially subjective. In a previous post I wrote about my belief that Constitutional principles were "objective, ascertainable, and timeless.” Original intent conservatives might argue that they believe the same thing. But what their interpretive method actually does is try to objectively ascertain opinions that are at heart subjective, and then freeze them in time—so we have an objective guide that won’t change with the whim of the judges. But those “unchangeable” principles still at heart reflect some subjective opinion—whether it be the collective understanding of folks from the 18th or 19th Centuries or some present day tradition that is so deeply engrained in our culture that we can all recognize it.

The third way—liberal originalism—views the constitutional principles themselves as reflecting objective rational truths, existing independent of human opinion or expectations about how certain constitutional principles ought to apply. And it is these principles of natural rights and proper ends of government that ought to be our primary if not our sole guide when we interpret the Constitution. The problem with relying on subjective expectations of 18th Century framers or God forbid, looking to how they behaved, is that our framers were full of inconsistencies and sometimes—not always, but sometimes—misapplied their own ideals. Relying exclusively on their subjective understanding of these principles means that we have to rely on their errors as well. Errors as blatant as 2+2 = 5 thus become enshrined in our constitutional jurisprudence.

Take “all men are created equal,” for instance. If we were to attempt to ascertain dominant 18th Century opinion, we might rightly conclude that they meant “only white men.” And if “all men are created equal” is only a matter of opinion, then there would be no way of arguing with that. However, if equality is an axiomatic truth…if we truly are equally endowed with respect to certain fundament rights…and if blacks are human, then blacks are equally endowed with such rights regardless of how dominant the view might have been that “all men are created equal” doesn’t apply to blacks—because that view was, as a matter of fact—erroneous.

Or let’s take religious rights. Some believe that when our framers used the word “religion” in the Constitution, that they meant only Christianity—some going so far as holding Protestant sects only. And if we look at how the framers and the states behaved at the time—they indeed often acted as though only Protestants were worthy of such rights! But the interpretive problems that I mentioned above are apparent here: Jefferson and Madison clearly believed that all religions—Hindus, Muslims, Jews, Infidels—possessed these rights. But others, like Justice Joseph Story, argued that Constitutional rights were only intended to apply to Christians. The text of the Constitution doesn’t give us the answer. It uses the generic term “religion”—it doesn’t differentiate between Christian & non-Christian religions. And if such clauses were intended to protect only Christianity, this could have been written into the text because many state constitutions did protect only the Christian religion and we know this because their texts explicitly held so. Yet, the majority of those states who themselves protected “Christianity only” ratified the First Amendment that generically protected “religion.” There is no clear answer that is ascertained here by looking to “dominant” opinion.

Instead, what we should be inquiring about is why religion deserves protection in the first place. The answer is, because, as a matter of fact, individuals possess inalienable rights of conscience. As Madison wrote in his Memorial and Remonstrance, “[A]ll men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’” Now this was not just Madison’s “opinion” but a timeless fact that is as true as the principles of Euclidean Geometry. It should be this objective truth that guides us when interpreting the religion clauses, not whose “opinion” was dominant.

Why, because even if the majority of folks believed as Joseph Story did, that only Christians possessed such rights of conscience, if that belief conflicts in any way with the ABOVE TRUTH stated in Madison’s Remonstrance, then such opinion—even if it were dominant—must give way to rational principles ascertained by Man’s Reason. So is there anything in Madison’s statement that could lead us to believe only Christians have the right to conscience? I can't find anything. The phrase, on its face, seems to generally apply to everyone regardless of whether they are Christian. Therefore those positing Story’s view would have to explain why, if what Madison said was true, only Christians possess these rights. And they are going to have do better than, “this is the way it was understood.” Because just because the majority believed 2+2=5 doesn’t mean that we are to be guided by such errors in our Constitutional jurisprudence.