Original Intention, Judicial Activism, etc.

Some people say that the Constitution ought to be interpreted according to the "original" intention of the Framers. Others disagree, saying it is a living document that was intended to be interpreted in the light of changing conditions and needs. Some say the courts should take a "strict constructionist" approach to interpretation, not adding or subtracting meaning from the Constitution's actual text. Others disagree and advocate "judicial activism," bowing to the inevitable fact that judges will read the text in light of their own values, experience, presuppositions, etc.

In general, taking liberty seriously does not require conforming to any of these dogmas. The operating assumption is that the Framers of the Constitution had the preservation and furtherance of human liberty as foremost in their minds, that they regarded freedom as fundamental to the entire meaning of the Constitution. No dogma other than liberty should take precedence over it. Therefore, the question is, always, "Which interpretation of the Constitution best serves the preservation and furtherance of human liberty?" Whether a particular interpretation is "strict," "activist," "originalist" or otherwise is simply beside the point. The point is whether it is the best possible accommodation between a compelling governmental interest and the fundamental right to individual liberty.

A Short Essay on Originalism

1. What we call our “constitutional law” is a set of social practices that essentially amounts to a kind of common law, much like the English constitution.

2. Ideas about things like originalism, original intent, textualism and text are all inside the game, i.e., within the set of social practices. As such, they and the weight given them are simultaneously determined by and (along with many other factors) co-determinants of the course of the game. But these ideas are in no way external or foundational premises that independently govern how the game is played.

3. The only way to have any kind of constitutional law where the “written constitution” is paramount and determinative would be to abandon the doctrine of precedent and treat each new occasion for constitutional interpretation as an “original” question, unbound by past interpretations—much as civil law systems do with their civil codes.

4. Number 3 might not work to restore true supremacy to the “written constitution,” but it is a necessary if not sufficient step toward doing so. For sure, as long as we adhere to the doctrine of precedent, true supremacy will belong, not to the original written Constitution, but to the evolving body of common law that emerged out of it.

Or stated slightly differently: As long as the courts systematically look for interpretive guidance at anything at all other than the original “written constitution,” then that other source serves de facto to amend and eventually to supplant the written constitution itself. For better or worse.

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