University of Cincinnati Law Review
1989
Essay
*849 ORIGINALISM:
THE LESSER EVIL [FNa]
Antonin Scalia [FNaa]
Copyright 1989 by
Antonin Scalia. All rights reserved
This series of lectures is dedicated to the memory of Chief Justice William
Howard Taft, an extraordinary man by any standard. A state trial judge at
twenty-nine, Solicitor General of the United States at thirty-two, a United
States Circuit Judge at thirty-four, Professor and Dean at the University of
Cincinnati Law School, High Commissioner of the Philippines, Secretary of War,
President of the United States, and Chief Justice of the United States. When a
Justice of the Supreme Court is invited to give this lecture, I presume it is
the great man's judicial career that is expected to be at least the jumping-off
point for the discussion. That also happens to be the part
of his diverse life that Taft himself most valued, judging by a statement he
made at the time of his nomination to the Chief Justiceship (not only an
appropriate modesty but even a fear of the Almighty gives me some pause at
quoting this): "I love judges, and I love courts. They are my ideals, that
typify on earth what we shall meet hereafter in heaven under a just God."'
[FN1]
Taft is generally acknowledged to have been one of the greatest Chief
Justices--not so much on the basis of his opinions, perhaps because many of
them ran counter to the ultimate sweep of history. One commentator observes
condescendingly:
Taft's Chief Justiceship might have been constructive, but for his haunting
fear of progressivism and progressives. Had he maintained the powerful position
he assumed in his commerce cases and minimum wage dissent, Adkins v. Children's
Hospital, 261 U.S. 525 (1923), he might have, with
the backing of Holmes, Brandeis, Stone, and possibly Sanford, swung the Court
along the line the great triumvirate was so eloquently staking out. Lacking in
William Howard Taft was the quality Woodrow Wilson suggested as an essential
requirement of statesmanship--"a large vision of things to come."' [FN2]
This is presumably the school of history that assesses the greatness of a
leader by his success in predicting where the men he is leading want to go.
That is perhaps the way the world ultimately evaluates *850 things--but
one may think that Taft, having (as I have described) a
more celestial view of the judge's function, had a quite accurate "vision
of things to come,"' did not like them, and did his best, with consummate
skill but ultimate lack of success, to alter the outcome. To demean him for not
being Brandeis is to demean Lee for not being Grant.
Be that as it may, Taft's reputation as one of the greatest Chief Justices
rests not primarily upon his opinions but upon his organizational and
administrative skills which, together with his political acumen, immensely
improved the quality of federal justice. As described by one biographer, in his
very first year as Chief Justice, Taft "launched his campaign for reform,
making appeals in speeches across the continent, presenting his case in legal
periodicals and in testimony before the House and Senate Judiciary
Committees."' [FN3] He succeeded in
obtaining passage of the Act of Sept. 14, 1922, [FN4] which established the
Judicial Conference of the United States, and the Judiciary Act of 1925, [FN5] which finally brought
the Supreme Court's unmanageable docket under control by rendering the vast
majority of its jurisdiction discretionary. He successfully opposed (and this
should be of particular interest to modern lawyers, for the issue is still with
us) Senator Norris' bill to eliminate the diversity jurisdictional of the
federal courts. [FN6] I am tangibly in his
debt more than most of you, since he obtained for the Court its first (and
current) home, the Supreme Court building that is now the
symbol of equal justice under law.
But just as I may be forgiven for not addressing a subject related to Taft's
accomplishments as President, I hope I may be pardoned as well for not
addressing a subject dealing with judicial administration--for that also is not
my current line of territory. Rather, what leapt to my mind as I contemplated
this talk was that legal opinion of the Chief Justice which is generally
regarded as his most significant one--and which he himself must have regarded
as his most significant one, if his personal estimation can validly be measured
by the amount of time he took to produce it, and by its sheer length. Indeed,
we need not rely upon that persuasive secondary evidence, for Taft himself said
of the case: "I never wrote an opinion that I felt to be so important in
its effect."' [FN7]
*851 I refer to the Chief Justice's opinion for the Court in
Myers v. United States, [FN8] which declared
unconstitutional congressional attempts to restrict presidential removal of
executive officers. Argument in that case was first heard on December 5, 1923.
It was set for reargument and heard again the next Term, almost a
year-and-a-half later, on April 13th and 14th, 1925. (In those days oral
argument was, to understate the point, somewhat more protracted.) The Chief
Justice's seventy page opinion for the Court, as well as a one-page dissent by Justice
Holmes, a sixty-one page dissent by Justice McReynolds, and a fifty-five page
dissent by Justice Brandeis, did not issue until more than
a year-and-a-half after this second argument, on October 25, 1926. I have
always been impressed, incidentally, by the contrast between that lengthy
gestation period and the period between argument and issuance of the famous
opinion, about eight-and-one-half years later, after Charles Evans Hughes had
succeeded Taft as Chief Justice, in which a unanimous Supreme Court essentially
overruled the analysis of Myers in fourteen quick pages. [FN9]
Humphrey's Executor v. United States, [FN10] which invalidated
President Franklin Roosevelt's attempt to remove a member of the Federal Trade
Commission who was uncongenial to his philosophy, was argued on May 1, 1935,
and decided twenty-six days later--the same day the Court declared
unconstitutional Roosevelt's National Industrial Recovery Act. [FN11] Many (including
President Roosevelt) thought that the rapid switch in legal analysis between
Myers and Humphrey's Executor had much to do with the Justices' antagonism
towards the New Deal; but surely it must also reflect the great intellectual
influence that Taft, an ex-President and hence a supporter of Executive power,
had exercised over his colleagues.
Perhaps Chief Justice Taft's opinion in Myers came so readily to my mind as I
was considering the subject of this talk because it dealt with the presidential
removal power, the same issue that was before us in the most significant case
we decided last term--the independent counsel case. [FN12] The reason I want to
discuss it, however, has nothing to do with the substantive issue; I said all I intend to about that in my lonesome dissent. What
attracts my attention about the Myers opinion is not its substance but its
process. It is a prime example of what, in current scholarly discourse, is
known as the "originalist" *852 approach to constitutional interpretation. The objective
of the Chief Justice's lengthy opinion was to establish the meaning of the
Constitution, in 1789, regarding the presidential removal power. He sought to
do so by examining various evidence, including not only, of course, the text of
the Constitution and its overall structure, but also the contemporaneous
understanding of the President's removal power (particularly the understanding
of the First Congress and of the leading participants in the Constitutional
Convention), the background understanding of what "executive power"'
consisted of under the English constitution, and the nature of the executive's
removal power under the various state constitutions in existence when the
federal Constitution was adopted. It is easy to understand why this would take
almost three years and seventy pages. As I shall later have occasion to
describe, done perfectly it might well take thirty years and 7,000 pages.
It may surprise the layman, but it will surely not surprise the lawyers here,
to learn that originalism is not, and had perhaps never been, the sole method
of constitutional exegesis. It would be hard to count on the fingers of both
hands and the toes of both feet, yea, even on the hairs of one's youthful head,
the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the
judges currently thought it desirable for it to mean. That is, I suppose, the
sort of behavior Chief Justice Hughes was referring to when he said the Constitution
is what the judges say it is. But in the past, nonoriginalist opinions have
almost always had the decency to lie, or at least to dissemble, about what they
were doing-- either ignoring strong evidence of original intent that
contradicted the minimal recited evidence of an original intent congenial to
the court's desires, or else not discussing original intent at all, speaking in
terms of broad constitutional generalities with no pretense of historical
support. The latter course was adopted, to sweep away Taft's analysis, in
Humphrey's Executor, which announced the novel concept of constitutional powers
that are neither legislative, nor executive nor judicial, but
"quasi-legislative"' and "'quasi-judicial."' [FN13] It is only in
relatively recent years, however, that nonoriginalist exegesis has, so to
speak, come out of the closet, and put itself forward overtly as an
intellectually legitimate device. To be sure, in support of its venerability as
a legitimate interpretive theory there is often trotted out John Marshall's
statement in McCulloch v. Maryland that "we must never forget *853 it is a constitution
we are expounding"' [FN14]--as though the
implication of that statement was that our interpretation must change from age
to age. But that is a canard. The real implication was quite the opposite:
Those who have not delved into the scholarly writing on constitutional law for
several years may be unaware of the explicitness with which many prominent and
respected commentators reject the original meaning of the Constitution as an
authoritative guide. Harvard Professor Laurence H. Tribe, for example, while
generally conducting his constitutional analysis under the rubric of the open-
ended textual provisions such as the Ninth Amendment, does not believe that the
originally understood content of those provisions has much to do with how they
are to be applied today. The Constitution, he has written, "invites us,
and our judges, to expand on the ... freedoms that are uniquely our
heritage,"' [FN15] and "invites a
collaborative inquiry, involving both the Court and the country, into the
contemporary content of freedom, fairness, and fraternity."' [FN16] Stanford Dean Paul
Brest, having (in his own words) "abandoned both consent and fidelity to
the text and original understanding as the touchstones of constitutional
decisionmaking,"' [FN17] concludes that "the
practice of constitutional decisionmaking should enforce those, but only those,
values that are fundamental to our society."' [FN18] While Brest believes that the "text,"' "'original
understanding," "custom,"' "social practices,"'
"conventional morality,"' and "precedent"' all strongly
inform the determination of those values, the conclusions drawn from all these
sources are "defeasible in the light of changing public values."' [FN19] Yale Professor Owen
Fiss asserts that, whatever the Constitution might originally have meant, the
courts should give "'concrete meaning and application"' to those
values that "give our society an identity and inner coherence and its
distinctive public *854 morality."' [FN20] Oxford Professor (and
expatriate American) Ronald Dworkin calls for "a fusion of constitutional
law and moral theory."' [FN21] Harvard Professor
Richard Parker urges, somewhat more specifically, that constitutional law
"take seriously and work from (while no doubt revising) the classical
conception of a republic, including its elements of relative equality,
mobilization of citizenry, and civic virtue."' [FN22] More specifically
still, New York University Professor David Richards suggests that it would be
desirable for the courts' constitutional decisions to follow the contractarian
moral theory set forth in Professor John Rawls' treatise, A Theory of Justice. [FN23] And I could go on.
The principal theoretical defect of nonoriginalism, in my view, is its
incompatibility with the very principle that legitimizes judicial review of
constitutionality. Nothing in the text of the Constitution confers upon the
courts the power to inquire into, rather than passively assume, the constitutionality of federal statutes. That power is,
however, reasonably implicit because, as Marshall said in Marbury v. Madison,
(1) "[i]t is emphatically the province and duty of the judicial department
to say what the law is,"' (2) "[i]f two laws conflict with each
other, the courts must decide on the operation of each,"' and (3)
"the constitution is to be considered, in court, as a paramount
law."' [FN24] Central to that
analysis, it seems to me, is the perception that the Constitution, though it
has an effect superior to other laws, is in its nature the sort of
"law"' that is the business of the courts--an enactment that has a
fixed meaning ascertainable through the usual devices familiar to those learned
in the law. If the Constitution were not that sort of a "law,"' but a
novel invitation to apply current societal values, what reason would there be
to believe that the invitation was addressed to the courts rather than to the
legislature? One simply cannot say, regarding that sort of novel enactment,
that "[i]t is emphatically the province and duty of the judicial
department"' to determine its content. Quite to the contrary, the
legislature would seem a much more appropriate expositor of social values, and
its determination that a statute is compatible with the Constitution should, as
in
*855 Apart from the frailty of its theoretical underpinning,
nonoriginalism confronts a practical difficulty reminiscent of the truism of
elective politics that "You can't beat somebody with nobody."' It is
not enough to demonstrate that the other fellow's
candidate (originalism) is no good; one must also agree upon another candidate
to replace him. Just as it is not very meaningful for a voter to vote
"non-Reagan,"' it is not very helpful to tell a judge to be a
"non-originalist."' If the law is to make any attempt at consistency
and predictability, surely there must be general agreement not only that judges
reject one exegetical approach (originalism), but that they adopt another. And
it is hard to discern any emerging consensus among the nonoriginalists as to
what this might be. Are the "fundamental values"' that replace
original meaning to be derived from the philosophy of Plato, or of Locke, or
Mills, or Rawls, or perhaps from the latest
Finally, I want to mention what is not a defect of nonoriginalism, but one of
its supposed benefits that seems to me illusory. A bit earlier I quoted one of
the most prominent nonoriginalists, Professor Tribe, to the effect that the
Constitution "invites us, and our judges, to expand on the ... freedoms that are uniquely our heritage."' [FN25] I think it fair to say
that is a common theme of nonoriginalists in general. But why, one may
reasonably ask-- once the original import of the Constitution is cast aside to
be replaced by the "'fundamental values"' of the current society--why
are we invited only to "expand on"' freedoms, and not to contract
them as well? Last Term we decided a case, Coy v. Iowa, [FN26] in which, at the trial
of a man accused of taking indecent liberties with two young girls, the girls
were permitted to testify separated from the defendant by a screen which
prevented them from seeing him. We held that, at least absent a specific
finding that these particular witnesses needed such protection, this procedure
violated that provision of the Sixth Amendment that assures a criminal
defendant the right "to be confronted with the witnesses against
him."' [FN27] Let us hypothesize,
however (*856 a hypothesis that may well be true), that modern American
society is much more conscious of, and averse to, the effects of
"emotional trauma"' than was the society of 1791, and that it is, in
addition, much more concerned about the emotional frailty of children and the
sensitivity of young women regarding sexual abuse. If that is so, and if the
nonoriginalists are right, would it not have been possible for the Court to
hold that, even though in 1791 the confrontation clause clearly would not have
permitted a blanket exception for such testimony, it does so today? Such a
holding, of course, could hardly be characterized as an "expansion
upon"' preexisting freedoms. Or let me give another
example that is already history: I think it highly probable that over the past
two hundred years the Supreme Court, though not avowedly under the banner of
"nonoriginalist"' interpretation, has in fact narrowed the contract
clause of the Constitution [FN28] well short of its
original meaning. [FN29] Perhaps we are all
content with that development--but can it possibly be asserted that it
represented an expansion, rather than a contraction, of individual liberties?
Our modern society is undoubtedly not as enthusiastic about economic liberties
as were the men and women of 1789; but we should not fool ourselves into
believing that because we like the result does not represent a contraction of
liberty. Nonoriginalism, in other words, is a two-way street that handles
traffic both to and from individual rights.
Let me turn next to originalism, which is also not without its warts. Its
greatest defect, in my view, is the difficulty of applying it correctly. Not
that I agree with, or even take very seriously, the intricately elaborated
scholarly criticisms to the effect that (believe it or not) words have no
meaning. They have meaning enough, as the scholarly critics themselves must
surely believe when they choose to express their views in text rather than
music. But what is true is that it is often exceedingly difficult to plumb the
original understanding of an ancient text. Properly done, the task requires the
consideration of an enormous mass of material--in the case of the Constitution
and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states. Even beyond that, it
requires an evaluation of the reliability of that material--many of the reports
of the ratifying debates, for example, are thought to be quite unreliable. And
further still, it requires immersing oneself in the political and intellectual
atmosphere of the time-- somehow placing out of mind knowledge that we have
which an earlier *857 age did not, and putting on beliefs, attitudes,
philosophies, prejudices and loyalties that are not those of our day. It is, in
short, a task sometimes better suited to the historian than the lawyer.
Let me provide a small example of this from Chief Justice Taft's lengthy--and
on the whole admirable--effort in Myers. One of the issues at hand (though not
the only one) was what was understood to be the inherent content of the phrase
"'[t]he executive Power"' in Article II, sec. 1, which provides that
"[t]he executive Power shall be vested in a President of the United States
of America."' [FN30] Specifically, was the
phrase "the executive Power"' a term of art that included the power
to dismiss officers of the executive branch? Taft disposes of this question in
three sentences:
In the British system, the Crown, which was the executive, had the power of
appointment and removal of executive officers, and it was natural, therefore,
for those who framed our Constitution to regard the words "executive
power"' as including both. Ex Parte Grossman, 267 U.S. 87, 110. Unlike the power of conquest of the British Crown,
considered and rejected as a precedent for us in Fleming v. Page, 9 How. 603,
618, the association of
removal with appointment ... is not incompatible with our republican form of
Government. [FN31]
It will be noted that this analysis simply assumes that the English experience
is relevant. That is seemingly a reasonable assumption. After all, the
colonists of 1789 were Englishmen, and one would think that their notion of
what "the executive Power"' included would comport with that
tradition. But in fact the point is not at all that clear. Senator George
Wharton Pepper, who at the Court's request had filed an amicus brief and argued
as amicus before the Court, contended that "none of the members of the
Constitutional Convention who took part in the debates desired the President to
wield the powers which at the time were exercisable by the King of
England."' [FN32] Worse still, Chief
Justice Taney's opinion in the 1850 case of Fleming v. Page, [FN33] which Taft cited in
the passage I quoted, had said the following:
[I]n the distribution of political power between the great departments of
government, there is such a wide difference between the power conferred on the
President of the United States, and the authority and sovereignty which belong
to the English crown, that it would be altogether unsafe to reason from any
supposed resemblance between them, either as regards*858 conquest in
war, or any other subject where the rights and powers of the executive arm of
the government are brought into question. [FN34]
Taft's opinion adequately distinguished the holding of
Fleming on the ground that it related to a different executive power,
"incompatible with our republican form of Government;" [FN35] but did not at all
come to grips with the contradiction that Taney, unlike Taft, did not think the
English experience relevant to "any ... subject where the rights and
powers of the executive arm of the government are brought into question."'
[FN36] Nor did the opinion
respond to the seemingly telling point made in Justice McReynolds' dissent,
that Jefferson's 1783 Draft of a Fundamental Constitution for the Commonwealth
of Virginia had provided:
The executive powers shall be exercised by a Governor ... By executive powers,
we mean no reference to those powers exercised under our former government by
the crown as of its prerogative, nor that these shall be the standard of what
may or may not be deemed the rightful powers of the Governor. [FN37]
And finally, Taft's opinion offered no support whatever for the asserted
proposition that the English experience was relevant, except for the citation
to Taft's earlier opinion in Ex Parte Grossman [FN38]-- which quoted from an
1856 case Ex Parte Wells to the effect that "when the words to grant
pardons were used in the Constitution, they conveyed to the mind the authority
as exercised by the English crown...."' [FN39] But quite obviously,
that the constitutional phrase "to grant Pardons"' meant the same
thing it meant in the English system is only marginally
relevant to whether the phrase "[t]he executive Power"' meant the
same.
Having mentioned the gaps in Chief Justice Taft's analysis, let me suggest just
some of the material he might have used to fill them. It is unquestionable that
many in the founding generation "did not consider the Prerogatives of the
British Monarch as a proper guide for defining the Executive powers"'
(those were the words of James Wilson, as recorded in Madison's notes of the
Constitutional Convention). [FN40] Indeed, that sentiment
was so widespread that the proponents *859 of the Constitution during the ratification campaign felt
constrained to emphasize the important differences between British royal
prerogative and the powers of the presidency. [FN41] That can be conceded,
however, without impairing Taft's central point that a reference to "'the
executive Power"' without further qualification would be taken as a
reference to the traditional powers of the English King, except those
inherently incompatible with republican government.
Research conducted years later by Professor William Winslow Crosskey would have
been helpful to Taft. Referring to the royal prerogatives as described in
William Blackstone's Commentaries on the Laws of England, which had been
published in Philadelphia in the early 1770s, Crosskey noted that many--indeed,
almost half--of Congress' enumerated powers had been considered royal
prerogatives under the law of England at the time of our Constitution's adoption. [FN42] For example,
Blackstone wrote that the king had "the sole power of raising and
regulating fleets and armies,"' [FN43] whereas, of course,
these powers under our Constitution reside in Congress by virtue of article I,
section 8, clauses 12 through 14. The Constitution also expressly confides in
the President certain traditional royal prerogatives subject to limitations not
known in the English constitution. Thus, for example, the king's absolute veto
of legislation became a qualified veto subject to override by a two-thirds vote
of Congress, [FN44] and the king's ability
to conclude treaties became a presidential power to negotiate treaties, with a
two-thirds vote of the Senate needed for ratification. [FN45]
It is apparent from all this that the traditional English understanding of
executive power, or, to be more precise, royal prerogatives, was fairly well
known to the founding generation, since they appear repeatedly in the text of
the Constitution in formulations very similar to those found in Blackstone. It
can further be argued that when those prerogatives were to be reallocated in
whole or part to other branches of government, or were to be limited in some
other way, *860 the Constitution generally did so expressly. One could
reasonably infer, therefore, that what was not expressly reassigned would--at
least absent patent incompatibility with republican principles--remain with the
executive. And far from refuting this, Jefferson's draft constitution for Virginia,
alluded to earlier, could be said to support it. Why, Taft might have argued, would Jefferson have felt it necessary to specify
that "[b]y executive powers, we mean no reference to those powers
exercised under our former government by the crown"' unless, without that
specification, such reference would reasonably be assumed? [FN46]
I am not setting forth all of this as necessarily the correct historical
analysis, but as an example of how an expansion of Taft's three brief sentences
might have at least begun. I should note, moreover, that those three sentences
bore the burden of establishing not only (what we have just discussed) that the
phrase "the executive Power"' referred to the king's powers, but also
that the king's powers in fact included the power to remove executive
officials. Taft's opinion contains nothing to support that point, except the
unsubstantiated assertion that "[i]n the British system, the Crown ... had
the power of appointment and removal of executive officers...."' [FN47] That is probably so,
but the nature of the relationship between the Crown and the government in
England during the relevant period was a sufficiently complicated and changing
one, that something more than an ipse dixit was called for. [FN48]
Well, I leave it to the listener's imagination how many pages would have had to
have been added to Taft's seventy-page opinion, and how many months to his
almost three years of intermittent labor, to flesh out this relatively minor
point in a fashion that a serious historian would consider minimally adequate.
And this is just one of many points that could have used elaboration. Nowadays,
of course, the Supreme Court does not give itself as much
time to decide cases as was customary in Taft's time. Except in those very rare
instances in which a case is set for reargument, the case will be decided in
the same Term in which it is first argued--allowing at best the period between
the beginning of October and the end of June, and at worst the period between
the end of April and the end of June. The independent counsel case last Term [FN49]-- involving precisely
the historical materials Myers had to consider, and then some--was argued on
April 26, and the thirty-eight-page opinion and thirty- eight-page *861 dissent (I
believe in equal time) issued on June 29. Do you have any doubt that this
system does not present the ideal environment for entirely accurate historical
inquiry? Nor, speaking for myself at least, does it employ the ideal personnel.
I can be much more brief in describing what seems to me the second most serious
objection to originalism: In its undiluted form, at least, it is medicine that
seems too strong to swallow. Thus, almost every originalist would adulterate it
with the doctrine of state decisis--so that Marbury v. Madison would stand even
if Professor Raoul Berger should demonstrate unassailably that it got the
meaning of the Constitution wrong. (Of course recognizing stare decisis is
seemingly even more incompatible with nonoriginalist theory: If the most
solemnly and democratically adopted text of the Constitution and its Amendments
can be ignored on the basis of current values, what possible basis could there be for enforced adherence to a legal decision of
the Supreme Court?) But stare decisis alone is not enough to prevent
originalism from being what many would consider too bitter a pill. What if some
state should enact a new law providing public lashing, or branding of the right
hand, as punishment for certain criminal offenses? Even if it could be
demonstrated unequivocally that these were not cruel and unusual measures in
1791, and even though no prior Supreme Court decision has specifically
disapproved them, I doubt whether any federal judge--even among the many who
consider themselves originalists-- would sustain them against an eighth
amendment challenge. It may well be, as Professor Henry Monaghan persuasively
argues, that this cannot legitimately be reconciled with originalist
philosophy--that it represents the unrealistic view of the Constitution as a
document intended to create a perfect society for all ages to come, whereas in
fact it was a political compromise that did not pretend to create a perfect
society even for its own age (as its toleration of slavery, which a majority of
the founding generation recognized as an evil, well enough demonstrates). [FN50] Even so, I am
confident that public flogging and handbranding would not be sustained by our
courts, and any espousal of originalism as a practical theory of exegesis must
somehow come to terms with that reality.
One way of doing so, of course, would be to say that it was originally intended
that the cruel and unusual punishment clause would have an evolving content--that "cruel and unusual"' originally meant
"cruel and unusual for the age in question"' and not "cruel and
unusual in 1791."' But to be faithful to originalist philosophy, *862 one must not
only say this but demonstrate it to be so on the basis of some textual or
historical evidence. Perhaps the mere words "cruel and unusual"'
suggest an evolutionary intent more than other provisions of the Constitution,
but that is far from clear; and I know of no historical evidence for that
meaning. And if the faint-hearted originalist is willing simply to posit such
an intent for the "cruel and unusual punishment"' clause, why not for
the due process clause, the equal protection clause, the privileges and
immunity clause, etc.? When one goes down that road, there is really no
difference between the faint-hearted originalist and the moderate
nonoriginalist, except that the former finds it comforting to make up (out of
whole cloth) an original evolutionary intent, and the latter thinks that
superfluous. It is, I think, the fact that most originalists are faint-hearted
and most nonoriginalists are moderate (that is, would not ascribe evolving
content to such clear provisions as the requirement that the President be no
less than thirty-five years of age) which accounts for the fact that the sharp
divergence between the two philosophies does not produce an equivalently sharp
divergence in judicial opinions.
Having described what I consider the principal difficulties with the
originalist and nonoriginalist approaches, I suppose I owe it to the listener to say which of the two evils I prefer. It is originalism. I
take the need for theoretical legitimacy seriously, and even if one assumes (as
many nonoriginalists do not even bother to do) that the Constitution was
originally meant to expound evolving rather than permanent values, as I
discussed earlier I see no basis for believing that supervision of the
evolution would have been committed to the courts. At an even more general
theoretical level, originalism seems to me more compatible with the nature and
purpose of a Constitution in a democratic system. A democratic society does
not, by and large, need constitutional guarantees to insure that its laws will
reflect "current values."' Elections take care of that quite well.
The purpose of constitutional guarantees--and in particular those
constitutional guarantees of individual rights that are at the center of this
controversy--is precisely to prevent the law from reflecting certain changes in
original values that the society adopting the Constitution thinks fundamentally
undesirable. Or, more precisely, to require the society to devote to the
subject the long and hard consideration required for a constitutional amendment
before those particular values can be cast aside.
I also think that the central practical defect of nonoriginalism is fundamental
and irreparable: the impossibility of achieving any consensus on what,
precisely, is to replace original meaning, once *863 that is
abandoned. The practical defects of originalism, on the other hand, while genuine enough, seem to me less severe. While it may indeed
be unrealistic to have substantial confidence that judges and lawyers will find
the correct historical answer to such refined questions of original intent as
the precise content of "the executive Power,"' for the vast majority
of questions the answer is clear. The death penalty, for example, was not cruel
and unusual punishment because it is referred to in the Constitution itself;
and the right of confrontation by its plain language meant, at least, being
face-to-face with the person testifying against one at trial. For the
non-originalist, even these are open questions. As for the fact that originalism
is strong medicine, and that one cannot realistically expect judges (probably
myself included) to apply it without a trace of constitutional perfectionism: I
suppose I must respond that this is a world in which nothing is flawless, and
fall back upon G.K. Chesterton's observation that a thing worth doing is worth
doing badly.
It seems to me, moreover, that the practical defects of originalism are defects
more appropriate for the task at hand--that is, less likely to aggravate the
most significant weakness of the system of judicial review and more likely to
produce results acceptable to all. If one is hiring a reference- room
librarian, and has two applicants, between whom the only substantial difference
is that the one's normal conversational tone tends to be too loud and the
other's too soft, it is pretty clear which of the imperfections should be
preferred. Now the main danger in judicial interpretation of the Constitution--or, for that matter, in judicial interpretation
of any law--is that the judges will mistake their own predilections for the
law. Avoiding this error is the hardest part of being a conscientious judge;
perhaps no conscientious judge ever succeeds entirely. Nonoriginalism, which
under one or another formulation invokes "fundamental values"' as the
touchstone of constitutionality, plays precisely to this weakness. It is very
difficult for a person to discern a difference between those political values
that he personally thinks most important, and those political values that are "'fundamental
to our society."' Thus, by the adoption of such a criterion judicial
personalization of the law is enormously facilitated. (One might reduce this
danger by insisting that the new "fundamental values"' invoked to
replace original meaning be clearly and objectively manifested in the laws of
the society. But among all the varying tests suggested by nonoriginalist
theoreticians, I am unaware that that one ever appears. Most if not all
nonoriginalists, for example, would strike down the death penalty, though it
continues to be widely adopted in both state and federal legislation.)
*864 Originalism does not aggravate the principal weakness of
the system, for it establishes a historical criterion that is conceptually
quite separate from the preferences of the judge himself. And the principal
defect of that approach--that historical research is always difficult and
sometimes inconclusive--will, unlike nonoriginalism, lead to a more moderate
rather than a more extreme result. The inevitable tendency
of judges to think that the law is what they would like it to be will, I have
no doubt, cause most errors in judicial historiography to be made in the
direction of projecting upon the age of 1789 current, modern values--so that as
applied, even as applied in the best of faith, originalism will (as the
historical record shows) end up as something of a compromise. Perhaps not a bad
characteristic for a constitutional theory. Thus, nonoriginalists can say,
concerning the principal defect of originalism, "'Oh happy fault."'
Originalism is, it seems to me, the librarian who talks too softly.
Having made that endorsement, I hasten to confess that in a crunch I may prove
a faint-hearted originalist. I cannot imagine myself, any more than any other
federal judge, upholding a statute that imposes the punishment of flogging. But
then I cannot imagine such a case's arising either. In any event, in deciding
the cases before me I expect I will rarely be confronted with making the stark
choice between giving evolutionary content (not yet required by stare decisis)
and not giving evolutionary content to particular constitutional provisions.
The vast majority of my dissents from nonoriginalist thinking (and I hope at
least some of those dissents will be majorities) will, I am sure, be able to be
framed in the terms that, even if the provision in question has an evolutionary
content, there is inadequate indication that any evolution in social attitudes
has occurred. [FN51] That--to conclude this
largely theoretical talk on a note of reality--is the real
dispute that appears in the case: not between nonoriginalists on the one hand
and pure originalists on the other, concerning the validity of looking at all
to current values; but rather between, on the one hand, nonoriginalists,
fainthearted originalists and
pure-originalists-accepting-for-the-sake-of-argument-evolutionary-content, and,
on the other hand, other adherents of the same three approaches, concerning the
nature and degree of evidence necessary to demonstrate that constitutional
evolution has occurred.
I am left with a sense of dissatisfaction, as I am sure you are, that a
discourse concerning what one would suppose to be a rather fundamental--indeed,
the most fundamental--aspect of constitutional *865 theory and practice should end so inconclusively. But it
should come as no surprise. We do not yet have an agreed-upon theory for
interpreting statutes, either. I find it perhaps too laudatory to say that this
is the genius of the common law system; but it is at least its nature.
[FNa]
This address was delivered on September 16, 1988 at the University of
Cincinnati as the William Howard Taft Constitutional Law Lecture.
[FNaa]
Associate Justice, United States Supreme Court.
[FN1].
Mason, William Howard Taft, in 3 THE JUSTICES OF THE SUPREME COURT 1789-1978
2105 (L. Friedman and F. Israel ed. 1980).
[FN2].
Id. at 2120.
[FN3].
Id. at 2109.
[FN4].
Act of Sept. 14, 1922, ch. 306, 42 Stat. 837 (1922).
[FN5].
Judiciary Act of 1925, ch. 229, 43 Stat. 936 (1925).
[FN6].
Mason, supra note 1, at 2110.
[FN7].
Id. at 2118.
[FN8].
272 U.S. 52 (1926).
[FN9].
Humphrey's Executor v. United States, 295 U.S. 602 (1935).
[FN10].
Id.
[FN11].
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
[FN12].
See Morrison v. Olsen, 108 S.Ct. 2597 (1988).
[FN13].
Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935).
[FN14].
17 U.S. (4 Wheat.) 316, 407 (1819).
[FN15].
L. TRIBE, GOD SAVE THIS HONORABLE COURT 45 (1985).
[FN16].
L. TRIBE, AMERICAN CONSTITUTIONAL LAW 771 (2d ed. 1988).
[FN17].
Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REV.
204, 226 (1980).
[FN18].
Id. at 227.
[FN19].
Id. at 229.
[FN20].
Fiss, The Supreme Court 1978 Term--Forward: The Forms of Justice, 93 HARV. L. REV. 1, 9, 11 (1979).
[FN21].
R. DWORKIN, TAKING RIGHTS SERIOUSLY 149 (1977).
[FN22].
Parker, The Past of Constitutional Theory--And Its Future, 42 OHIO ST. L. J.
223, 258 n.146 (1981).
[FN23].
Richards, Constitutional Privacy, The Right to Die and the Meaning of Life: A
Moral Analysis, 22 WM. & MARY L. REV. 327, 344-47 (1981).
[FN24].
5 U.S. (1 Cranch.) 137, 177 (1803).
[FN25].
L. TRIBE, supra note 15, at 45.
[FN26].
108 S.Ct. 2798 (1988).
[FN27].
Id. at 2800.
[FN28].
U.S. CONST. art. I, § 10, cl. 2.
[FN29].
See, e.g., Home Building and Loan Association v. Blaisdell, 290 U.S. 398
(1934).
[FN30].
U.S. CONST. art. II, § 1.
[FN31].
Myers v. United States, 272 U.S. 52, 118 (1926).
[FN32].
Id. at 79.
[FN33].
50 U.S. (9 How.) 603 (1850).
[FN34].
Id. at 618.
[FN35].
Myers, 272 U.S. at 118.
[FN36].
Fleming, 50 U.S. (9 How.) at 618 (emphasis added).
[FN37].
272 U.S. at 235.
[FN38].
Id. at 118.
[FN39].
Ex Parte Grossman, 267 U.S. 87, 110 (quoting Ex Parte Wells, 59 U.S. (18 How.) 307, 311 (1855)).
[FN40].
See 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 at 65 (1966).
[FN41].
See, e.g., THE FEDERALIST No. 67 at 452-57 (A. Hamilton) (J. Cooke ed. 1961); 4
J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION 107-10 (1866) (remarks of Iredell at North Carolina
Convention).
[FN42].
See 1 W. CROSSKEY, POLITICS AND THE CONSTITUTION 428 (1953); see also U.S.
CONST. art. 1, § 8.
[FN43].
2 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 262 n. 33 (Tucker ed.
1803).
[FN44].
Compare 2 W. BLACKSTONE, id. at 260, 260-61 n.30, with U.S. CONST. art. II, § 2, cl. 2.
[FN45].
Compare 2 W. BLACKSTONE, id. at 257, 257 n.21, with U.S. CONST. art. II, § 2, cl. 2.
[FN46].
Myers v. United States, 272 U.S. at 235.
[FN47].
Id. at 118.
[FN48].
See F. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 387-400 (1908).
[FN49].
Morrison v. Olsen, 108 S.Ct. 2597 (1988).
[FN50].
See Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353 (1981).
[FN51].
See, e.g., Thompson v. Oklahoma, 108 S.Ct. 2687, 2711 (1988) (Scalia,
J., dissenting).
END OF DOCUMENT