I sometimes wonder if the American mania around finding true interpretations of our Constitution is peculiarly our own, or if most countries, even the very stable and wealthy ones, have similar legal neuroses. I cannot speak for elsewhere, all I know is that in my own home country, institutional anxiety finds expression in methodological adventurism. When the Supreme Court asserts a reading of the Constitution with drastic consequences for our system, everyone from the typical American, to the typical American commentator, to the American legal elite, knows there is little that any of us can really do about it. The conversation instead focuses on whether or not the decisions are correct.
Unable to achieve personal mastery over institutional power, legal theorists of the last seventy years have instead sought mastery over semantic indeterminacy. The strongest and most influential of these doomed endeavors is originalism; the notion that the sense of any legal clause can be found in its “original public meaning,” which it retains once and for all.
The first problem of theories like this is that the aspects of law for which they could be said to be true, they are unnecessary. It is true, of course, that “No Person shall be a Representative who shall not have attained to the Age of twenty five Years” is given its sense by the system of public meaning at the time it was written. But it is perfectly comprehensible today. Other specific and determinate sections are similarly comprehensible without methodological intervention by theorists.
The second problem is that, for those aspects of law which everyone yearns for some determinate answer to, there was already a variety of perspectives in the “original” time period. What exactly is due in “due process?” “Cruel and unusual” by whose standards? Not only was there a broad range of answers already available when these clauses became part of the supreme law of the land, there was a broad range of mutually incompatible answers.
The third and less frequently mentioned problem is that original meaning in the antebellum period, even among those with mutually exclusive interpretations, meant understanding the Constitution as a natural law document. Whatever one’s position in the constitutional debates of the early republic, it went without saying that the answers were ultimately grounded in principles of natural law that were nowhere invoked in the document itself. No originalist from Bork to Scalia to Kavanaugh has been so brazen as to demand that we accept the authority of Christian natural law doctrines to determine what is and is not legal in our system. Nor should they. But without natural law, one wonders what is truly left of “original meaning.”
Some phrases really do come down to nothing more specific than “be fair” and “don’t inflict unnecessary suffering.” The particulars are left for another time, for future legislation, future administrative procedure—and future judges. They are left for another time precisely because agreement on specifics is hard to garner agreement on. The very difficulty of getting agreement favors judges and administrators making on the spot decisions over legislators whipping votes before taking indirect action, to say nothing of presidents unilaterally issuing executive orders and vetoing legislation. There may be ways of making these institutions behave differently towards each other, to respond to written law differently than they now do. But constitutional methodology is not one of those ways.