Originalism, Constitutionalism and the Constitution
The U.S. President Donald Trump nominated Judge Amy Coney Barrett to the Supreme Court of the United States following the demise of Justice Ruth Bader Ginsburg, which had created the vacancy on the nine-bench Supreme Court. Besides the ramifications of a political nature on the American politics, there are philosophical questions being raised pertaining to the preceding legal positions of the nominee which adheres to the originalist tradition of constitutional interpretation as opposed to purposivism. This philosophical-legal question is inextricably linked with the constitution as a living supreme document and thus constitutionalism as a principle ought to strictly adhere to the constitutional norms in a democratic polity.
What does originalism or textualism as a philosophical-legal tool espouse? Before delving into the anatomy of the terms, it is essential to establish the fundamental fact that originalism or textualism should not be construed as literalism. Originalism or textualism is a statutory interpretative method employed by the justices in interpreting a statute and thus adheres to the “ordinary meaning” of the statutory language. Fidelity to the law is the means of adherence to the language: “AS IT IS” and not what the judge thinks it to be the case (Barrett, 2020).
Purposivism espouses the method of interpretation where the overarching goal of a statute is said to take precedence over the text itself. When the purpose of the statute comes in tension with the text, justices who embrace purposivism embrace the goal and not the original meaning of the text. It is the law and not the lawgiver which/who binds us. Whatever men may intend, law and the text take precedence (Scalia, 1997). This is in contrast to what Bishop Hoadly said (1717) in a sermon before the English King: “Whoever hath an ultimate authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them” (Plato.edu, 2001). Originalism is a theory focussed on process and not substance. It is not conservative in a political sense but conservative in a legal sense, seeking to preserve the originally intended text at the time of the founding (Gorsuch, 2019).
This takes us to establish the distinction between textualism and literalism as it is understood in the legal language. Literalism and textualism are often used as synonyms. However, there exist a multitude of differences between the two. Textualism, as established above, requires the original meaning of the text to take precedence over the subjective interpretations of the justices owing to contextual changes overtime. Literalists on the other hand argue that the literal meaning of the text takes precedence over the context of the text. Literalism is “spurious” textualism devoid of understanding of how people communicate. It holds the text in complete isolation from the context of its enactment. (Popkin, 2001; Barrett, 2020). Therefore originalists or textualists emphasise on the textual meaning understood and applied onto the statutes enacted at the time through a deliberative and legitimate process. So, each textual provision must necessarily bear the meaning attributed to it at the time of its own adoption. (Barrett, 2020).
Justice Neil Gorsuch illustrates the complex method of originalism by arguing that despite the meaning of the text, however original, new applications of the laws emerge and not the new meaning of the statutes themselves. A prominent example is of the precariousness of the First Amendment-protected speech in the face of the debasement of speech and the potentially disruptive nature of speeches. Surely, J.S. Mill expressed his anxiety over censorship of speech over Plato’s debasement of speech. W.r.t the First Amendment to the Bill of Rights in the United States, it doesn’t just apply to speech on a piece of paper, but also for the press, social galvanization on streets, but more incidentally to the speech on the internet in an information age and communications revolution. While the applicable contexts might change, the meaning remains constant (Gorsuch, 2019; Mehta, 2015). Originalism, therefore, must be viewed through the lens of the constitutional polity as envisaged at the time of its enactment.
Then, what should the constitution espouse? Sure, with all the flaws in constitutions, the constitution and therefore constitutionalism is essential in sustaining a liberally conceived democratic polity. The constitution as a supreme rule book or a governing document must espouse certain firmly enshrined decrees which bind the State power for fair and legal-rational conduct of a polity with liberal values attached to it. A constitution must place concrete limits on the aspects such as the scope of the authority (a division of power) and the mechanism with which authority is exercised (legislative powers). Liberal constitutional democracy, therefore, must not be viewed in isolation with mere electoralism. The tyranny of the majority must be equally and firmly balanced with the rights of the minority, equal and unrestrained civil liberties and equal protection of all individuals in the face of just law. The constitution must be in pursuit of a vigorous defence of individual rights against the brute State power both philosophically and in substance. The sole test of a constitutional character is the measure of its defence of individual liberties against a potentially omnipotent evil State.
Following the tradition of liberal philosopher John Locke (sovereignly limited government), many constitutional theorists have argued that one of the prominent features of constitutionalism is the firmly entrenched norms of the constitution legally or through constitutional conventions. In other words, the limits as prescribed by the constitution on the State power cannot and should not be expunged by the whims of the State either through democratic referenda or the will of the parliament invoking parliamentary sovereignty.
Another important aspect of constitutionalism is the constitutional convention that limits the powers of the State or the governing authority. The British jurist A.V. Dicey argues that there are non-legal social conventions arising out of a political community which seeks to enforce limits on the regime. For instance, the unwritten convention is that the British Queen must not refuse to provide assent for the legislation passed by the houses of Parliament. Another example can be borrowed from the 2000 U.S. Presidential elections where the body of persons chosen to represent the State of Florida was obliged to consider the plurality of votes while considering the winner of the election by the virtue of political conventions. If we are to accept what Dicey argued, then these constitutional conventions, even though unenforceable in the courts of law, are guides to the path of the polity.
Constitutionalism is contingent upon modern democracies to sustain the “double-edged incompleteness” of a democracy: The inner or empirical dimension of the incompleteness of democracy—to supply the terms and conditions of application of democracy—and the outer or normative dimension—a moral guide to the government to fulfil the classical sense, “as an idea of a good government by the will of the people” (Walker, 2010). The State has a dual nature attached to it. On one hand, is the “necessary evil” and an instrument for exploitative ends by those in power. On the other hand, it can be equated to the march of God on Earth when limited with powers and guaranteed civil liberties. Constitutionalism, therefore, completes a democracy in both empirical as well as a normative sense by limiting State power and firmly enshrining civil liberties (Mustafa, Sohi 2019).
By K.S. Nikhil Jois
CHRIST (Deemed) To Be University, Bengaluru
Nikhil is a politics and philosophy enthusiast. He finds solace in Indian classical music. An aspiring civil servant.
Barrett, A. (2020). Assorted Canards Of Contemporary Legal Analysis: Redux. Case Western Reserve Law Review – Vol. 70. Issue 4.
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Stanford Encyclopedia of Philosophy. (2001, 2017). Constitutionalism. https://plato.stanford.edu/entries/constitutionalism/
Gorsuch, N.M. (2019, September 6) Why Originalism Is The Best Approach to the Constitution. TIME. https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
Mehta, P. B. (2015, January 29). The crooked Lives of Free Speech. Open Magazine. https://openthemagazine.com/voices/the-crooked-lives-of-free-speech/
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Mustafa, F., & Sohi, J.S. (2019, August 14). India has a Constitution but the centre's move on Kashmir raises questions about Constitutionalism. The Indian Express. https://indianexpress.com/article/opinion/columns/jammu-and-kashmir-article-370-india-constitution-5902587/