Some who defend Samuel Alito to the Supreme Court do so on the grounds that he believes that a judge's duty is to interpret the laws, not to make laws from the bench. These people see judges who “legislate from the bench” as semi-dictators. Appointed for life, they face no accountability for the rules that they impose on others, so long as they do not do anything so criminal that they become subject to impeachment.
The doctrine that these conservative judges are supposed to follow is “originalism” or “original meaning.” This theory holds that the meaning laws (and the Constitution) is static. One determines what the law says by determining what people at the time would have understood the meaning to be.
This question of what judges ought and ought not to do – of whether judges ought or ought not to be “originalists”, for example -- is actually a moral question. We are not looking at an interpretation of statute when we say that judges ought to strictly apply the law in a given case, or how the judge is to determine what the law says. And, even if there was such a statute, we would still be left to ask, "Is this a good statute? Is it possible to improve the law by using a different statute?"
As a moral principle, I have three objections to raise against originalism.
There Is No Such Thing As Original Meaning
Elsewhere, I have found myself getting into very long and complex arguments about the meaning of terms and phrases. The meaning of moral terms such as “ought” and “virtue” has been the subject of a great deal of debate. Originalists assume that they can divine a single meaning for terms. In fact, experience shows us, that no two people speak exactly the same language. Somewhere in their list of definitions and meanings, one person will hold to definitions that are not fully consistent with the definitions accepted by any other person.
Take any referendum on the ballot today and show the text to any two voters who both voted in favor of the amendment. I guarantee that you will find some element in there where they will disagree as to the meaning – some disagreement over how that law is to be applied to some borderline case.
It is quite reasonable to expect that legislators and the authors of referendums often come to a point where they do not wish to clearly state the meaning of certain provisions. Every attempt made to restrict the meaning of the law risks offending more people who might have otherwise voted for the law. "If we make this law too specific, then those people will not vote for it. The law will be defeated. It's only chance of passage rests on leaving the law vague, so that more people can find an interpretation they like. Let the courts figure out how to apply the law in specific cases."
This is most probably the case with the Bill of Rights. These amendments are extremely vague, probably because specificity would have doomed them to defeat. Judges today who interpret the laws one way or the other are not discovering an original intent. They are taking sides in a debate that exist hundreds of years ago.
If one set of judges in this dispute claims that they are obtaining the “original meaning” of the law, they are engaging in rhetorical license. They are trying to cast their own actions in a false light that others may find appealing, yet which is still nothing more than an appealing illusion. The only question we have to ask about such a judge is if he is only deceiving us, or if he is also deceiving himself.
The Good Servant
Assume that you have a servant. Assume that you are playing tennis on your tennis court, and you tell your servant to bring you some lemonade. On the way to the kitchen, your servant passes by the pool where he discovers that a neighbor's child has fallen into the pool.
Is this servant guilty of the moral equivalent of "legislating from the bench?" After all, your instructions to him were not, "Get me some lemonade, unless you see a child drowning in the pool, in which case rescue the child." You said, "Bring me some lemonade." If he appends "…unless you see a child…" to your instructions, he is changing those instructions, is he not?
“Original meaning” scholars say, “Let this child drown – it was not in your original instructions to save the child. Tell your employer (the legislature) what happened and allow him to decide if he wants to append future instructions to allow for saving a drowning child. If, the next time, instead of a drowning child.”
The “original meaning” theorist can answer this case by saying that clearly the master’s instructions would have been interpreted by any decent servant as allowing for the rescue of a drowning child – this was the clear meaning of the instruction.” However, this now says that the “original meaning” of any instruction (or law) comes with an understanding to “do the right thing” while carrying out those instructions.
I guarantee that if you had a servant who did only, literally, what you asked of him and nothing else, you would quickly fire that servant in favor of one that is able to exercise a bit more judgment. The good judge is like the good servant. He will follow instructions to the best of his ability, but not to the point that he ignores the other obligations he may find relevant in a particular case.
Assume that I have a stack of money. I have been investing it myself, but I do not have time to do all of the research necessary to make good judgments. One morning, I say to myself, "It is stupid for me to think that, by spending an hour or two per night by myself looking over stock options, that I could do better than a team of people with college degrees who spend their entire working day doing this kind of research.” So, decide that I am going to give my money to one of these financial advisors.
If that financial advisor was an “originalist”, he would be looking at my original portfolio and saying such things as, “He had 50% of his money in stock when he gave it to me and 50% of his money in bonds. Therefore, I should preserve this original ratio of stock to bonds.”
In fact, if he takes “originalism” to its logical extreme, he would not touch my money, but leave it in its original portfolio (except for whatever changes were introduced by the natural growth of any investment).
This is a terrible waste of a perfectly good resource, and it is likely to cost me a great deal of money. The rational course to take is to use this resource – these people with their specialized training and experience – to do things that I do not have time to do myself. Rational people know the value of hiring experts – doctors, lawyers, engineers, consultants, financial planners -- and following their judgment.
Of course, we need to take some care that we hire good advisors to full these roles. However, it makes no sense to hire a doctor whose job is to only deliver the diagnosis that the patient himself would have given himself, or for the engineer to try to design a bridge the way that the person hiring him would have designed it if he had designed it himself.
Ought judges look for the "original meaning" of a law?
No -- no more than doctors should be looking for "vital spirit" in curing disease. There is no such thing to find, so it is foolish to look for it.
Originalism is really a rhetorical sham. It’s an attempt to give legitimacy to a campaign that is illegitimate. It is a case in which a group of people involved in a long-standing debate attempts to grab legitimacy by pretending that they have the power to divine some sort of special “original intent” having some sort of intrinsic merit.
Yet, is it not extremely suspicious that the “original intent” they discover in the law fits so comfortably with what they want the law to be? “Original intent” would seem a lot less suspect if there was, somewhere, a group of “original intent” jurists – more than their counterparts – were caught saying, “This is a terrible law, but it is the law, and I have no choice but to conclude as follows.”
We don’t see this precisely because “originalism” has no merit. It is smoke and mirrors used to cloud thinking while its practitioners advance their own political agenda.