Jack Balkin has a couple of fascinating essays on how easily originalism is used to justify a particular result, an argument I have long made myself. I'm not an enemy of originalism, nor am I a "living constitutionalist", and I think that both original intent and original understanding or original meaning are important tools of constitutional interpretation and analysis. But when conservative originalists pretend that their judicial theory allows for an objective analysis that is divorced from results, like a mathematical formula that always reaches the correct answer, I think that's nonsense. Balkin does too.
His first essay is about a recent Scalia statement in defense of the 2000 Bush v. Gore decision, where he argues that the ruling was necessary because the different counting standards in Florida meant there was no equal protection for voting rights. But as Balkin points out, an originalist understanding of the 14th amendment would clearly reject such reasoning because the 14th amendment was neither intended nor understood at the time to have anything to do with voting rights. That's why the 15th and 19th amendments were required separately to give blacks and women the right to vote. As Balkin argues:
In the debates surrounding the adoption of the Fourteenth Amendment, voting was considered a "political" rather than a "civil" right. The Fourteenth Amendment was intended to protect "civil" equality, but not political equality. Even though questions of ballot counting and black suffrage are distinct, they are both questions about equality in voting rights, and were not part of the original understanding of the Fourteenth Amendment. The application of the Fourteenth Amendment to voting questions comes much later with the Warren Court. (You know, the Court that originalists like Scalia don't seem to like very much).
Again I really hope Scalia was misquoted here, because this is the sort of originalist argument that gives originalism a bad name. I don't have problems with making arguments about original understanding. They are as legitimate as any other form of constitutional argument. What I have a problem with is people like Scalia insisting that their views are justified by originalism (and their opponents lack fidelity to the Constitution) when they haven't a clue about the actual history or are just making the history up. When people like Scalia do this, they are using originalism as a mantra to rationalize their own political values. They are doing exactly what they accuse those who disagree with them of doing.
A commenter on that post who was at the speech confirmed that the quote from Scalia was accurate. Balkin's second essay on the subject fisks an article by Edward Whelan in the National Review that attempted to defend Brown v. Board of Education from an originalist perspective, despite the fact that there is nothing in the history of the 14th amendment to indicate that those who framed it or ratified it would have accepted such efforts at desegregation under their amendment and a good deal of evidence to the contrary (nor, for that matter, would they have thought that the equal protection clause would strike down laws against interracial marriage, as in the Loving decision). Jon Rowe had a post on this same article as well.
The problem, as I've noted before, is that conservative originalism, by focusing on the state of the law at the time a constitutional provision was passed or ratified, leads logically to some very bad results that conservative originalists do not want to defend as valid. Dred Scott, Brown and Loving are pretty good examples, but there are many more. The same reasoning that they use to attack Griswold and Lawrence could be used to attack any of the other cases listed above and were used in response to those case and to justify many other results that they don't want to try and defend. So they are forced to make tortured and weak arguments for why a given decision was really okay under their originalist judicial theory despite the fact that their intellectual forebears (and sometimes they themselves) made the same arguments against those rulings that they are making today. Balkin wraps it up very well:
I believe that originalist argument is an important modality of constitutional interpretation. My disagreement with today's originalists is that it is not the only or even the most important modality. I repeat, the issue is not about whether appeals to original understanding are legitimate or illegitimate. It is about whether originalism is the only touchstone of legitimate constitutional interpretation. I do not think that Brown can be justified solely on originalist grounds. However, that does not undermine the use of original understanding as a method of ascertaining constitutional meaning. What it does undermine is the view that judicial decisions are legitimate only if they can be squared with original understanding, and that decisions that appeal to text, post-enactment history, structure, prudential considerations, precedents (both judicial and non-judicial), traditions, and national ethos are illegitimate if they are unsupported by original understandings. The real debate is over unimodal versus multimodal interpretation. I am a multimodal interpreter, and I regard Brown v. Board of Education (and even more powerfully Bolling v. Sharpe) as strong examples for why a multimodal approach to constitutional interpretation is superior, and, I would say, far more legitimate than a unimodal approach. Indeed, the lesson I draw from Whelan's bad originalism is that people who claim to be strict originalists are usually multimodal interpreters too; they just don't recognize it or are not willing to admit it. As a result, they misunderstand or misuse history in order to shoe horn their conclusions into the language of original understanding. Whelan's essay is a good example of this unfortunate trend.
I would add one more thing to this, and Balkin notes it in his first essay: one important factor in this type of historical analysis is recognizing that the principles that are announced by previous generations often have logical, even inescapable, applications in ways that they either failed to understand or even were opposed to. The court recognized this in Loving, that despite the fact that those who framed and ratified the 14th amendment were entirely in favor of banning interracial marriage, the principle of equal protection that they announced could not be a reality if such laws were allowed to exist. And this goes back to Harry Jaffa's argument that we must look to the logical application of general principles, not just to the compromises that those who announced those principles might have made, in applying constitutional law.
Is there a legislative solution to this problem? By that i mean, if you could craft an amendment that would elucidate a methodology for interpreting the 218 year old language, would you be able to do that?
Another area of inquiry that may lend itself to better understanding the process of constitutional intentionality, would be to review the behaviors, opinions, case law, etc. of the Supreme Courts of Alaska and Hawaii. Both of these states are sufficiently new enough, that some of the drafters and voters of their original state constitutions are still alive. Are decisions by their respective Supreme Courts originalist and/or living constitutionalist?