If intentionalism / language in politics is fundamentally unserious, why does the left want you to ignore it?
And not just any random leftist, but Mr Soft Totalitarian himself, Cass Sunstein, who would “nudge” you into compliance with a world of his narcissistic design — and who today wants you to forget about all this intent balderdash and come to love the Constitution not for what it is, but for what people like he can do with it, if given the proper hermeneutic latitude.
Originalists insist that the meaning of the Constitution is settled by the original public meaning of its terms — that is, the meaning of its provisions when they were ratified. According to Scalia and Thomas, the job of the judges is to go into a kind of time machine and learn what history tells them about the “expected applications” of these provisions.
If the Equal Protection Clause was originally understood to allow sex discrimination, the Constitution allows sex discrimination. If the First Amendment was originally understood to allow regulation of commercial advertising, it allows regulation of commercial advertising.
The strongest defenders of originalism recognize that their method has to be defended, not simply asserted. This is important, because it is tempting to think that originalism is built into the very idea of interpretation. That’s a mistake.
True, you can’t ignore the words of the Constitution while claiming to interpret it. But you can be faithful to the Constitution’s text while also believing that its meaning isn’t fixed by the original understanding (and the “expected applications”). You can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex discrimination even if the original understanding was otherwise.
No, actually, you can’t. And note that throughout, what Sunstein does is assert: “you can be faithful to the Constitution’s text while also believing its meaning isn’t fixed […]”; “you can fully respect the text of the Equal Protection Clause while concluding that the clause bans sex descrimination even if the original understanding is otherwise.” But linguistically speaking, this is absurd: you can of course conclude that something that wasn’t intended to mean one thing can mean that thing, but that just means that your conclusion is faulty, self-serving, and incoherent. Similarly, you can’t be faithful to the Constitution’s text “while also believing its meaning isn’t fixed” because if it’s meaning isn’t fixed you aren’t being faithful to any thing save some floating marks — and you are showing fidelity not to a text but to a procedure, and one that allows you to claim that you have a right to consistently recreate with that procedure your own thing, which you can then claim to be faithful to.
Which, how charitable of you!
But let’s address Sunstein’s reasoning, such as it, by looking at his arguments in turn. He writes:
Originalists contend that their approach is best because it reduces the discretion of judges, stabilizes the legal system, and ensures that the Constitution’s meaning is settled by the judgments of We the People, who ratified its provisions. Scalia argues that originalists help to produce a “rock-solid, unchanging” Constitution — and that if the document reflects the views of people long dead, well, that’s fine, because those who are living are always free to amend it.
It seems like an appealing argument, but it faces three objections. The first is historical. Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand it.
As I’ve shown on several occasions, just because Scalia, eg., doesn’t correctly explain his “textualism” (which is in fact intentionalism) doesn’t mean he isn’t actually engaging in an intentionalist approach to the interpreting the Constitution. To extrapolate out from that — and even given Sunstein’s absurd idea that the ratifiers didn’t believe themselves to mean what they meant when they voted to ratify what it is they voted to ratify — it makes no difference how one describes what one is doing when one interprets, because intentionalism, as you’ve heard me say over and over again, just is. And in the end, all we have to decide is whose intention we believe should be privileged when dealing with legal texts: those who signified them and passed those signs into law intended to function in a particular way and in specific circumstances? Or those who believe themselves clever enough to extrapolate from signifiers — having reduced the text of the Constitution to its marks, not its signs (that is, those who have robbed it of what makes it language to begin with, in order to resupply it with their own signification, and rewrite the text using their own intentions to turn the marks back into language of their choosing) — and thereby lay claim to being the Constitutions “interpreters” when what they are really laying claim to is being its new authors.
The Constitution contains broad and abstract terms, such as “equal protection of the laws,” “freedom of speech” and “cruel and unusual punishment.” It is reasonable to object that We the People didn’t understand the meaning of such provisions to be frozen for all time. Some originalists have tried to meet that objection, by pointing to history that seems to support their view, but it isn’t a simple task. And, in fact, other self-described originalists insist that because the Constitution deliberately uses broad terms, originalist judges legitimately understand the meanings of those terms to change over time.
More sophistry, broadly extrapolated: if some terms are broad and abstract enough where latitude is given for how they may reasonably be interpreted, that just means that the authors left that latitude, either intentionally or accidentally. In either case, what we know is, they had a meaning — and legal convention allows for some latitude to apply meaning should a text prove abstract, and there is no recourse to understanding what specifically was intended by it. This does not mean, though, that because some terms are abstract, the entire document is abstract, or that we can take very specifically understandable intent and abstract it ourselves. What Sunstein wishes to do is to say that because we can’t possibly gauge all intent perfectly, we needn’t worry about intent at all. Which is absurd — and dangerous.
Because what he’s doing in that instance is making the claim that whatever new intent can be applied to the text has equal standing with the text as intended. Or to put it another way, the Constitution doesn’t exist unless and until it is applied by the latest people to suggest its application.
The second objection has to do with changed circumstances. In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn’t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our e-mails.
Whenever circumstances change, originalists have to engage in some extrapolation, asking how the original understanding applies to problems on which We the People had no view. When they engage in that extrapolation, they aren’t asking a purely historical question, but instead about the best or most appropriate understanding of a constitutional principle in an unanticipated context — the very question that originalists want to avoid.
Again, this is a distraction, not an argument. And it’s nothing we haven’t heard before (the framers couldn’t have anticipated “assault weapons,” eg., therefore the 2nd Amendment is a dead letter of sorts, unless you wish to own a musket). The fact that the framers couldn’t anticipate wiretapping or the internet doesn’t mean they couldn’t anticipate instances in which searches and seizures would be unreasonable.
Intentionalists don’t “want to avoid” the consequences of a law running up against and unanticipated context. And that’s because the context has to address the law, not the other way around. Of course some extrapolation is going to be necessary as new circumstances arrive and we are dealing with a fixed set of intended laws. But it is hardly a problem to make the argument that a ratifying body who didn’t want the government entering their homes without cause or seizing their property without due process was instituting a broader point of law: that the government’s infringement on our private property rights must meet a high legal threshold to be considered something other than “unreasonable.” Sunstein wants you to focus on the contemporary contexts in which the laws must be applied while ignoring that the laws weren’t themselves written in a vacuum, but were in response to historical circumstances that we don’t specifically face today (British using general warrants), and so were meant to prevent a kind of government behavior. Not being able to anticipate the internet or the NSA’s datamining capabilities is therefore irrelevant. What is relevant is what the authors believed constituted “unreasonable.” And from the historical context of the law, that class of government action the law was seeking to curtail is fairly self-evident.
The final objection, and perhaps the most fundamental, involves the consequences. If we accepted Scalia’s version of originalism, much of the U.S. constitutional system would be deeply unsettled, and in a way that would trouble liberals and conservatives alike.
It’s pretty clear that under the original understanding, states could discriminate on the basis of sex, and there’s a strong argument that they could engage in racial segregation. It’s even clearer that the federal government could freely discriminate on the basis of both sex and race.
— Things that were addressed by later law, as our understanding of race and sex evolved. Sunstein is correct here: under the original understanding of federalism, states could and did have differing views on social matters, and therefore different states could have different standards of law, based upon the will of their citizenry.
Where Sunstein is incorrect is in his implied assertion that the 9th and 10th Amendments were mistakes — that federalism was something that troubles originalists. It doesn’t. The fact that states are given autonomy in certain regards was a requirement of the Constitution’s ratification. And you have to rewrite history entirely to suggest that the framers would have frowned upon giving states that kind of legal power and latitude.
What we’ve seen — pace Sunstein — is that, after the 14th Amendment, and thanks in large part to a move away from originalist readings of the Constitution, what racial inequalities that exist in law today are a function of rewriting the Constitution’s text entirely, so that equal protection has come to mean special dispensation for certain favored groups.
I’ve been over this thousands of times — including with putative conservatives who either shrugged off the seriousness of how language (and in particular, what it is we think we’re doing when we claim to be interpreting) affects policy and the institutionalization of certain kernel assumptions that provide for a necessary legal trajectory; or who embrace the very notions of “democratizing” interpretation made famous by the agrarians and the New Critics, and then carried forward by the post structuralists, such that the individual or corporate agency responsible for willing thought into language is subjugated to the “interpretive community” who wishes to lay claim to control over meaning.
This is how individualism is subsumed by collectivism, and it happens on the very basic level of language.
The rest — the movement leftward, the increasing institutionalization of policy and assumption favorable to the left’s incoherent use of the signifier/signified relationship with respect to autonomy (they wish to hide the fact that it is their intent that they wish to privilege, always, whether as authors OR interpreters) — is entirely predictable.
And it is why people like Sunstein wish to reduce the Constitution to an idea that can constantly and repeatedly be rewritten on the fly.
Allowing them to do so is suicidal. Yet, here we are.
Don’t blame me, though. I keep on telling you where we’re going, and while some of you listen, others are so offended by the loss of power attendant within the hermeneutic paradigm they’ve come to rely upon that they will rail against all things leftist, even as they allow the very structure of leftism to take root and become legitimated.