I think this has a factual answer.
I am putting together a lesson where students compare & contrast what I call “theoretical law” meaning the Constitution as written vs he Constitution as interpreted in 2024 re: abortion, gender, suspect rights, etc. vs Sharia Law. For my “theoretical law” I would want textualism, right? Is there any argument that what I’m looking for is originalism?
The way you phrased your question, i.e. looking for the original intent of the Constitution as intended by those who wrote it, you’d want originalism; that’s what originalism is all about. Textualism (relying primarily on the plain wording of the Constitution) is one way to achieve originalism, assuming that this wording best reflects the original intent.
I think you’re looking for “originalism”.
“Originalism” is the idea that the law is properly interpreted based on how it would have been understood at the time it was enacted (or that it had a “fixed meaning” at the time of enactment).
Two common ways to identify this original fixed meaning are “textualism” and “intent.” The former instructs that you interpret the statute by looking at the ordinary meaning of the text itself. “Original intent” opens up to looking at extra-textual sources (such as legislative history) to attempt to determine the intent of the provision in question. There are different ways of approaching all of these issues.
In ordinary statutory interpretation, there has been a long debate over textualism versus intent, with persuasive arguments in favor of each.
This is a fact:
Law professors, and Supreme Court judges, disagree on the exact definitions of originalism and textualism, and how different from one another they are.
Both textualists and originalists say they are following the authors of the Constitution.
The difference, as I understand it, is that the textualist approach does this by reading what those authors wrote in the text of the Constitution. The originalist approach is to figure out what those authors were thinking when they wrote the text of the Constitution.
So a textualist will say “This is what they said” while an originalist will say “This is what they meant.”
The problem (in my opinion) is that it’s very easy to misuse originalism, either inadvertently or deliberately. The text exists but trying to divine the thoughts of the text’s authors lacks any clear objective evidence. How do you know what somebody who’s been dead for two hundred years was thinking? If you try to judge their thought process by their writings, you’re left with the contradiction of explaining why the words they wrote in a letter should carry more weight than the words they wrote in the Constitution in interpreting the text of the Constitution. Even if you can conclusively demonstrate that their personal opinions differed from the text they wrote, you can’t ignore the possibility that they were aware of that difference and intended that the law be different than their belief.
Worse than that, you deal with contradictory writings by a founder, they are not 100% consistent with what they say over a lifetime. Why, just yesterday the Supreme Court was sparring over whether George Washington was more concerned about a chief executive as monarch or tyrant, or the dangers of divisive partisanship.
“The devil can quote scriptures for his purpose…”
As I think I say above, I don’t think this is the correct distinction. The idea behind originalism is that the constitution (or any statute) has a fixed meaning at the time of enactment (changeable by subsequent amendment).
“Original intent” is one way to determine that meaning. Originalist textualism is another. Scalia’s “original public meaning” is both originalist and textualist. You can have non-originalist textualism (I’m not sure you can have a non-originalist intent approach – unless your argument is that the intent was non-originalism).
Your criticisms are fair – but they’re criticisms of using an intent-based approach, which can be levied at any attempt at statutory interpretation.
Which is a failure. As an example, my understanding of John Bingham’s writing of the 14th Amendment was that anchor babies were not a consideration so did the meaning of “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” include a baby that is born in the US to a foreign national? And how would you really know if that was the intent?
Or even better the 7th Amendment “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,” Should we in 2024 keep the $20 as the standard? Or did they intend it to be representative of a reasonable amount?
This is drifting away from FQ. But, obviously, if there was an argument that “twenty dollars” was intended (or would have been understood at the time) to mean “representative of some reasonable amount” that would be an originalist argument.
The Seventh Amendment strikes me as an odd example because “twenty dollars” is about as unambiguous as text can get. Maybe you think they mean “twenty 1791 dollars, adjusted for inflation.” But how else would you interpret it without completely abandoning the idea that you are interpreting a law?
Edit: If your point is that they shouldn’t have used a fixed sum, that’s fair. (If your point on the 14th Amendment is that it should be revised to deal with the problem of unlawfully present aliens, that’s fair too). But that may be viewed as what the amendment process is for.
The twenty dollars clause is probably the most ignored part of the Constitution. It was never relevant, not even at the time it was written, because the thresholds for federal jurisdiction were always higher than $20 (for federal question jurisdiction, amount in controversy thresholds were abolished in 1980, but since then it’s hard to imagine a federal question below $20). So it’s a completely irrelevant clause, and has always been so.
Would it be that $20 was a significant sum in those days - i.e. a week’s wages or a month’s wages for the common man? I.e. today, don’t bother us with a jury trial unless the amount exceeds, say, $5,000?
But it’s a good example of the failure of textualism. An interstate commerce of $20 (long distance bill?) would be federal, would it not? Some things don’t age well.
The concept of anchor babies comes with the simplicity and speed of long distance travel, which was not something the common man could access with ease when the clause was written - again, progress overtaking intent. Also, the more important aspect of immigration control and the deep importance attached to citizenship in a more mobile world were not concepts then.
How is it a failure of textualism? I understand the argument that it’s a failure of written law; of constitutional governance; whatever. But I’m curious about the argument that it’s a “failure” of textualism.
No, unless the case is federal for another reason than being between parties in different states. The federal diversity jurisdiction applies only in disputes of more than $75,000.
I would replace “authors of the Constitution” with “Constitution as written”.
I also note a hidden premise in the OP, that interpretation of the Constitution in 2024 is not interpretation of the Constitution as written. Every single Supreme Court opinion will disagree with this premise, as regards to the contents of that opinion. Every single one.
The number of Supreme Court Justices who do not claim to interpret the Constitution as written is zero. (Inferior courts will sometimes make clear they do not agree with binding precedent, but must follow it anyways.)
~Max
I tend to disagree.
To me, the “Constitution as written” approach is strictly textualist. If you want to know what the Constitution means, you just read it. You don’t need to know what the people who wrote the text were thinking or what the people who voted to enact the text were thinking. You don’t even need to know who these people were. You can treat the text as if it’s completely anonymous.
An originalist can’t do that. In order to discover the meaning behind the text that they say they’re looking for, they have to research the thoughts of the people who wrote the text and who voted for it.
This is for a school assignment. I guess a better way of putting it would be
- Read the Bill of Rights
- Study the current case law regarding the Bill of Rights
- Do you think current case law accurately reflects the Bill of Rights as written
That’s not exactly the assignment but it gives the general flavor of it.
If you just read a historic document and interpret words with a modern vocabulary, you wouldn’t be interpreting it as written. “Written” is past participle. The document was written X years ago.
For the same reason it wouldn’t be interpreting a will signed yesterday “as written” if you interpret “Johnny shall inherit $x if a bachelor” to mean Johnny inherits $0 because he lacks a low ranking knighthood. Bachelor meant knighthood hundreds of years ago. Yesterday it meant unmarried and male.
~Max
Do you plan on limiting your cases to the Bill of Rights, and excluding reconstruction amendments? Because the Bill of Rights itself has never hindered the states.
~Max
Will you be explaining to them the importance of the 14th amendment in incorporating the Bill of Rights to the states, and so necessarily altering its meaning as it otherwise would place no limits at all on the states?
In the full assignment yes of course I’m including the 14th