Original Leanings: Wurman's Originalism as Judicial Activism
Law schools teach many subtleties of questionable relevance. I was in my Constitutional Law class in law school when I learned about the subtleties of Originalism. The class was discussing an affirmative action case (I don’t recall which one) in which the late Justice Antonin Scalia, one of the major advocates of Originalism, argued that the 14th Amendment required that laws make no racial distinctions, even distinctions that attempt to undo impact of the historical legacies of segregation and slavery on African Americans. Even the most marginal preference for black people was presumed unconstitutional because it discriminated against white people.
At that time, I thought Originalists interpreted the Constitution (or its Amendments) as the framers of that particular portion of the constitution intended. “Wait a minute,” I said, “wasn’t the goal of the 14th Amendment to give Congress the authority to pass laws protecting and helping formerly enslaved blacks? Isn’t kind of odd to say it was there to protect white people from discrimination?”
My professor, not an Originalist, but a man with a strong desire to be as fair as possible said, “Yes, that’s true, but Scalia is being an Originalist”—he paused here—“at a higher level of abstraction.”
I thought of this exchange as I read Ilan Wurman’s slim volume A Debt Against the Living: An Introduction to Originalism. Like Scalia’s reading of the 14th Amendment, Wurman’s book exists largely at a higher level of abstraction. That would not be a problem if Wurman’s goal was to provide a thought experiment in the interpretation of texts. Originalists, however, have higher aspirations than that.
Originalism holds itself out to be the only correct method for interpreting the Constitution. Without it, judges will lack any restraint on their interpretation of the law, substituting the judgment of their personal preferences for the judgement of the people. Only by carefully tending to the original meaning of the particular Constitutional text can we hope to restrain judicial activism like in the bad old days of the anti-regulatory frenzy of the Supreme Court’s Lochner Era during the early 1900s, or the freewheeling rights-granting days of the Warren Court of the 1960s.
The problem is that Wurman fails to provide a coherent explanation of how we determine the “intent” of the Constitution that addresses criticisms he himself acknowledges are valid. Even assuming such an “intent” could be determined, Wurman also provides two completely different methods for applying the textual intent to specific cases, an issue he admits is an “unresolved question.” Given that the application of an interpretation of the law to specific factual questions is a central part of a judge’s job, the fact that this question remains “unresolved” is fatal if Originalism’s goal is to guide and restrain judges.
The rare portion of the book that provides something approaching a specific plan for judicial action is the section discussing what Originalism would declare unconstitutional, which is: effectively all the New Deal legislation related to worker and consumer rights and some of the rights of criminal defendants as interpreted by the Warren Court. The fact that this is one of the few points in the book where Wurman descends from the abstract into the concrete lends credence to the criticism that Originalism is less a principled method for restraining the judiciary and more of a method for churning out specific conservative judicial outcomes.
Intent cannot be determined
Like my younger law school self, many people think that Originalists interpret the Constitution “as the Framers intended,” but that is not actually the current majority position among Originalists. While the early Originalists (original Originalists?) held this position, this view caved under the weight of criticism from legal scholars like Paul Brest and H. Jefferson Powell. Brest made the obvious observation that determining a collective “intent” of the 55 men at the Constitutional Convention was a fool’s errand. Powell took it one step further, showing from citations to the historical record that the Founders themselves did not intend for their intent to rule Constitutional interpretation.
Wurman claims that Originalists took these criticisms to heart and modified their position. Instead of relying on the “Framers’ intent” to guide Constitutional interpretation, the Originalists interpreted the Constitution using the “original public understanding.” According to Wurman, “The original public understanding version [of Originalism] maintains that the meaning of a constitutional provision is the meaning the public that ratified the Constitution would have understood it to have.” Wurman considers this method a full response to the Brest-Powell line of criticism for the following reasons:
It does not rely on the secret intention of the Founding Fathers. It does not even depend on the collective intentions of the various ratifying conventions. It asks, how would the people have understood the written words of the Constitution they were adopting? What would they have understood it to be accomplishing? That means we have to understand not only the way words were used, but also the purpose for which the words were deployed, the social context, and so on.
After this summary Wurman notes with satisfaction “many problems were thus solved,” but it is unclear exactly how this move responds to Brest-Powell line of criticism. To believe that the original public understanding position has addressed Brest’s criticism, you would be forced to defend the notion that it is easier to understand the intent of the roughly 800,000 white males who voted on ratification than to understand the intent of the 55 white males who participated in the Constitutional Convention. When your opponent shows that a few dozen people didn’t hold a position and you respond that your opponent hasn’t shown that nearly a million people didn’t hold it, this is less a counterargument than an absurd moving of the goalposts.
Wurman admits that some Originalists acknowledge that the “original public meaning” has these deficiencies and have concluded that the original intent of the Constitution has to be determined by asking what the “hypothetical reasonable person” would have thought. This person is “fully informed about the history and context of various constitutional provisions and skilled in linguistic conventions.” Wurman considers this another step in the process of Originalism “working itself pure.”
But this is no solution at all—rather, it is the ultimate admission of defeat. Originalism began by looking to the Founders for firm Constitutional interpretation. Once that proved difficult, they decided to look to the entire white male voting population of post-Revolutionary America. Apparently, some Originalists now realize that even this doesn’t solve their problems, so they have discovered “hypothetical reasonable person” as their newest redoubt. The word “hypothetical” is the real tell here. Hypothetical people come to mind in all shapes and sizes, but they share one thing in common: they exist only in theory.
The only place this “hypothetical reasonable person” could possibly exist is in the mind of a judge trying to decide a case on Originalist grounds, but at that point the judge can only imagine a person with as much knowledge about “the history and context of various constitutional provisions” as themselves. And if Brest and Powell are right—and Wurman says they are—even with the most perfect knowledge the judge would be no closer to a correct interpretation. Wurman’s explanation of “original intent” can’t even explain what it intends when it says “intent.”
Even if intent is determined, it cannot be applied
But let’s assume, for the sake of argument, Originalism does have a stable definition of “intent.” Even if the judge is able to enter the mind of the “hypothetical reasonable person” and correctly interprets the text, they still will not know how the text applies to a particular case. On this question, Originalists are divided. Wurman walks us through two major schools of how to apply correctly interpreted law to particular cases. The first is the “presumption of constitutionality” school. According to them an act of Congress is considered constitutional unless the Constitution as interpreted on Originalist grounds, prohibits it.
The second is “the presumption of liberty,” which holds that the Constitution should be interpreted in favor of the classical liberal conception of liberty, as understood by libertarian law professors. Any law of Congress that runs afoul of this interpretation is unconstitutional.
These two methods interpretations are wildly divergent. The presumption of constitutionality would limit judicial intervention to only the most egregious constitutional violations. Confronted with a law that say, prohibits abortion even in cases of rape and incest, a judge applying this frame would shrug and follow the the principle of the late Justice Oliver Wendell Holmes: “if my fellow citizens want to go to Hell I will help them. It’s my job.”
In contrast, a judge applying the presumption of liberty will strike down any law that runs afoul of the classical liberal conception of negative liberty. The people are free to choose the things that John Locke (as interpreted by the hypothetical reasonable person?) says make them free. Applying this framework seems as if it would lead to a far more interventionist judiciary, striking down laws that place any restrictions on contracts between parties (for example, minimum wage or workplace safety regulations, more on that later).
Given these divergent outcomes, surely Originalism has “worked itself pure” on this question. After all, interpretation is about applying law to facts, which is almost the entirety of a judge’s job. If the goal of Originalism is to stop “unelected judges” from “imposing their will on the people,” then it must surely give judges some answers on this point.
Wurman offers no such aid. “Which of these interpretive conventions […] is the best interpretive choice” Wurman informs us, “may be one of the greatest unresolved questions in originalism.” Given that “interpretation” is the application of law to facts, and the application of law to facts is almost all of what judges are supposed to do, and the goal of Originalism is to guide judges to proper conclusions, the concession that this issue is “unresolved” is astounding. Wurman can’t tell us what “intent” is and he can’t tell a judge what to do with that “intent” even if they could determine it.
Recipes for successful interpretations
Given these interpretive hurdles it is shocking to see Wurman approvingly quoting the observation of law professor Gary Lawson that “[i]nterpreting the Constitution is no more difficult, and no different in principle, than interpreting a late-eighteenth-century recipe for fried chicken.” Wurman draws on a thought experiment presented by Lawson to support Originalism. Imagine, says Lawson, we discover an 18th century recipe which includes the following ingredients: “one 2 ½ pound chicken,” “¼ cup of flour,” “one teaspoon of salt,” “plenty of lard for frying,” and “pepper to taste,” along with instructions for preparation.
Looking at the ingredients and preparation notes, says Lawson, would lead us to conclude that this is an eighteenth century recipe for fried chicken. Its meaning would be clear to all, not subject to any meaningful controversy. Later generations might have a different preferences for how their fried chicken is made. For example, they might replace rosemary with pepper. But we wouldn’t treat the substitution of rosemary as an “interpretation” of the eighteenth century recipe, we’d treat it as an “amendment” to the recipe.
In short, it is as silly to argue that interpreting the Constitution based on original intent is difficult as it is to pretend to be stumped by an 18th century fried chicken recipe. Furthermore, anyone who claims that the constitution must be “updated to the times” is changing the recipe while pretending it has remained the same. It’s fine to want Colonial fusion food, say Lawson and Wurman, but don’t pretend you’re having authentic culinary experience. You’re no longer following the recipe.
We’ll return to whether this is fundamentally a good analogy in a moment, but for now let’s take the analogy on its own terms. For our purposes we can focus on three ingredients from our hypothetical chicken recipe “¼ cup of flour,” “pepper to taste,” and “one teaspoon of salt.”
The “¼ cup of flour” instruction is particular and concrete. Certain clauses of the Constitution obviously work this way. For example, the President must be a natural born citizen and at least 35 years old, there will be two Senators for each state, the president can be impeached by a simple majority of the full House of Representatives, and the President can only be removed only by ⅔ of the Senate. These are all simple enough. They involve specific numbers applied to concrete situations.
The ingredient, “pepper to taste,” however, is a different kind of ingredient instruction. It’s an instruction with flexibility for the cook’s personal preferences regarding how much pepper they want in their fried chicken. When the constitution speaks of the protections of “due process” or prohibits “cruel and unusual punishment,” the very openness of these terms seems to allow for individual preference. Some people want their “due process” to have some kick and their “cruel and unusual punishment” to be aggressively underseasoned.
The ingredient “one teaspoon of salt” reveals another problem with Originalism—the problem of changing understanding of the ingredient being discussed. Before 1924, salt was not iodized. Most people making fried chicken today would use iodized salt without thinking about it, but it would certainly not have been in the mind of the person who wrote the recipe in the 18th century. A Fried Chicken Originalist might insist on using non-iodized salt to be true to the original public understanding of “salt” at the time of the Founding.
Wurman would likely object to this interpretation, saying that it’s describing a discarded early theory of originalism, “original expected application.” Under “original expected application” originalism, Constitutional provisions would only apply to situations envisioned by the Founders at the time of ratification. As an example, this would mean that since the Internet did not exist at the time of ratification, the First Amendment protection of free speech doesn’t apply to shitposting (some might consider this the best argument for Originalism, but Wurman does not raise it). Likewise, since GPS technology and wiretaps didn’t exist at the time of the Founding, the Fourth Amendment doesn’t apply and police can use them without a warrant.
Given absurd results like these, it’s understandable why most Originalists reject “original expected application.” In fact, even though Wurman’s book is dedicated to the late Justice and Originalist Antonin Scalia, Wurman makes a point of chastising Scalia for taking an “original expected application” approach with the concepts of “due process” and “cruel and unusual punishment.” But it’s unclear why Wurman objects to this form of Originalism, especially given that there are other areas of the Constitution where he wishes to read the text very strictly indeed, so strictly that it will overturn an entire era of popularly enacted legislation, not through democratic deliberation as Originalism promises, but by judicial fiat. This makes the stakes somewhat higher than whether or not you are eating fried chicken the way Thomas Jefferson did.
Outcome-driven interpretations
To review: Originalism as presented by Wurman has no settled way of determining the Constitution’s “intent.” Even assuming that question of “intent” could be settled, Wurman states that Originalism has no agreed on method for applying that “intent” to the facts of particular cases. So why would a judge use Originalism? The outcomes Wurman believes Originalism provides give a clue.
According to Wurman “there are at least three highly significant areas of law that may have to change” if we adopt Originalist premises. The first is “some of the New Deal State.” This “some” includes “[f]ederal minimum wage law, federal labor standards, and federal welfare programs.” Wurman states these programs “might have to be left to the states,” but several paragraphs later notes that libertarian Originalists hold “that [under the “privileges and immunities” clause of the 14th Amendment] the states could not infringe on economic liberties without compelling justifications.”
Exactly what is left of the New Deal State after Courts have overturned state and federal wage, labor, and welfare programs is somewhat unclear, especially since the second major change would be that “some administrative law would have to be revised.” Again, given that Wurman believes that administrative agencies have no authority to make or interpret binding regulations as agencies “never had the constitutional authority” to “exercise legislative power” it seems like “some” is a significant understatement.
Finally, Wurman states, the Constitution interpreted on Originalist grounds would significantly change the rights of criminal defendants. Wurman explicitly questions the right to a Miranda warning and the right to suppress evidence obtained through an illegal search. In one part of the book he seems to imply that the right of the poor to have an attorney in a criminal trial is also outside the scope of the Constitution. Wurman concedes “[t]hat’s not to say that all of these doctrines are bad from a public policy perspective.”
This concession that there may be good policy arguments for some rights for criminal defendants, and the absence of such a concession as it relates to economic legislation, is an important one. To understand why requires a brief detour into U.S. Constitutional theory. There is a concept in American constitutional law that in some contexts the Constitution sets a floor and in other contexts the Constitution creates a ceiling. When the Constitution sets a floor, it permits state and federal governments to provide rights over and above what the Constitution requires. So, for example, if the Supreme Court were to hold on Originalist grounds that poor criminal defendants don’t have a right to counsel paid for by the state, states could still fund public defender offices, but they would not be required to under the Constitution.
Things are the exact opposite where the Constitution sets a ceiling. Where the Constitution sets a ceiling state and federal government are prohibited from passing any regulation that exceeds what the Constitution permits. As a result, if the Supreme Court were to declare state and federal minimum wage laws exceed Congress’ authority under the Commerce Clause, and exceeds state government’s authority under the privileges and immunities clause of the 14th Amendment, then there could be no minimum wage law in the United States at all. There would be no room for “laboratories of democracy” on most other labor law as well. Federal and state governments would be unable to regulate workplace safety on similar grounds. Wurman’s book seems to indicate that the Constitution has set a ceiling on what states and the federal government can do to regulate wages, labor regulations, and welfare.
For a movement that presents itself as fighting against judicial overreach and judges “reading their values into the constitution” this would be a stunning expansion of judicial power, effectively prohibiting legislatures, and by extension the people who voted for them, from using governmental power to set minimum standards for the workplace or provide an economic safety net for those at the bottom end of the economic scale. It also is shocking for a movement that claims to provide objective and non-partisan methods for resolving judicial disputes. When judges that claim legislatures are prohibited from creating programs to help workers and the poor are consistently appointed by politicians who would be more than happy to have those obligations taken off their plate, one can be excused for assuming the method of legal reasoning arises from the outcomes, rather than the outcomes arising from the legal reasoning.
This conclusion is especially hard to avoid because Wurman offers no principled reason why “cruel and unusual punishment” should be read in light of our more modern sensibilities, but the Commerce Clause must be constrained by the economic views of the pre-industrial Founders. Wurman assumes that the former is obviously suitable for a more open ended interpretation in response to new facts and understandings of the world, but the latter is not. He never provides an argument for why these two clauses should be read in different ways.
This lack of an argument leaves the reader needing to fill in an argument where none is provided. But maybe there is no argument, maybe Wurman prefers a narrow reading of the Commerce Clause because he likes the outcome that results, and he likes a broader reading of the Cruel and Unusual clause because he likes those outcomes. These may be his preferences, but Wurman will have to argue these preferences on the merits; the hermeneutic albatross of Originalism he presents does not help him. It certainly will not help judges, unless the goal is to obscure their present political desires behind the hypothetical reasonable person from the 18th century.
Rationalization rather than rational interpretation
In the introduction to his book, Wurman says that he got his idea for the book’s title, A Debt Against the Living, from a letter that Madison sent Jefferson. In the letter, Madison argues that the future must be bound by the decisions of the past because the improvements of the past create a debt that must be paid. Wurman, consistent with his argumentative style throughout, treats this bald assertion as a philosophical argument.
For myself, when thinking of a quote that embodies the spirit of this book I thought of another Founder, Benjamin Franklin: “So convenient a thing to be a reasonable creature, since it enables one to find or make a reason for every thing one has a mind to do.” The only Constitutional “intent” to be found in this book is not the Founders’, but Wurman’s.
