Why progressives must resist both “originalism” specifically, and the Constitution more generally.
Terry H sends me the link to a very useful throwback article that speaks to a running theme here on pw — namely, that what is we think we’re doing when we interpret matters not only philosophically and methodologically (or if you prefer, theoretically), but materially, as well.
For the purposes of judicial interpretation, to conceive of a text as a set of fixed signs intended by its author(s) and ratifiers is to conceive of an actual thing — a document, finished and promoted, that is given the force of law by virtue of the legislative mechanisms assigned to completing such a procedure. Alternately, to conceive of a text as “living” is to conceive of it not as a text at all. Instead, what is imagined and promoted is a procedure for determining applicable law, one that is by its very nature unstable — based as it is not on the text-as-thing, but rather on the whims of those engaging it, who conceive of it as a set of marks over which they have superlegislative jurisdiction and powers.
That is, a “living” text is not a text at all, properly understood: it is instead an assertion — the argument being that “a text” is always but a potentiality, and so it means only (or also) what those interpreting it can conceivably make it mean by a process of resignification now unencumbered by appeals to legislative intent. As a result, those who promote the idea of a “living Constitution” rationalize for themselves the power to create law (though many do so by incoherently promoting their rewritings as legitimate additions to the original text allowed for by the marks presented them) as well as lay claim to “interpreting” it.
And it is this procedure — in all its several methodologically-promoted forms — that has led both to the weakening \(and deconstruction) of the Constitution as originally conceived and ratified, and the expansion of governmental powers as granted by a supposed co-equal branch.
Again, some have argued that looking at precisely how we’ve lost our way — at least, on the level of language (and, as a result, epistemology) — is “fundamentally unserious”; they care only about the tangible, the power struggle, the winning of elections and the promotion of conservatism through numbers and will and public persuasion.
Me, I think these perhaps well-meaning pragmatists miss the forest for the trees. Those who control the language — not just the message, but the rules for how messages can legitimately be determined and promoted — control the entirety of the game.
Until we insist on a fidelity to linguistic coherence — and in terms of judicial interpretation, originalism, working within established conventions for how legal language must operate, is the only legitimate judicial philosophy that can lay claim to actually interpreting — we will be subject to the whims of motivated interpretative “communities” and a kind of softly-disguised mob-rule collectivism.
And because of that, all of “our” victories are Pyrrhic and temporary, and the country cannot help but to move inexorably left, governed as it is by the left’s linguistic rules, entrenched and institutionalized and, as Stanley Fish recently showed, increasingly unapologetic.