Earlier this month, Adam Shapiro argued in the Review that constitutional originalism should be understood as a version of inerrantist biblical fundamentalism. The two essays here, by the constitutional-law professors Paul Gowder and Noah Feldman, respectively, sharply disagree
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Earlier this month, Adam Shapiro argued in the Review that constitutional originalism should be understood as a version of inerrantist biblical fundamentalism. The two essays here, by the constitutional-law professors Paul Gowder and Noah Feldman, respectively, sharply disagreewith that view — and continue a debate playing out in our pages since October, when Amy Coney Barrett was confirmed to the Supreme Court.
Originalism Has Many Problems. Its Imagined Religious Origin Is Not Among Them.
By Paul Gowder
A dam Shapiro’s unfortunate effort to argue against “the idea that only legal schools can competently critique originalism” actually serves as evidence for the opposite point. His critique of originalism is rooted in a misunderstanding of why lawyers operate with laws written down in texts. A critic with legal training would have been able to address the debate about originalism as a debate about textual interpretation and about the values our legal system seeks to serve, rather than making a facile effort to assimilate the interpretive method to some kind of theocracy.
Rather than try to identify what those who have argued for originalism get wrong on the terms of the arguments they actually offer, Shapiro’s attempt to characterize originalism as a “religious theory” proceeds roughly as follows:
Certain kinds of religious fundamentalists like to read texts “literally” (whatever that means).
Constitutional originalists also like to read text “literally.”
Many of the same people who believe in constitutional originalism also believe in religious fundamentalism.
Therefore, constitutional originalism is religious.
That argument fails. To see why, we must first note that it equivocates between two different interpretations of (4): a conceptual claim that originalism is a kind of religion and a historical claim that constitutionalism comes from religion.
The conceptual claim is just a non-starter. Two kinds of ideas can have the same abstract form without being the same thing. Moreover, it’s far from clear how originalism is supposed to be relevantly similar to “biblical literalism,” since no actual originalist thinks that the Constitution has a clear “literal” meaning, except in the context of some specific group of people. Shapiro acknowledges this toward the end of his essay, in describing the contemporary originalist focus on the public meaning of constitutional language — but then why were we first subjected to an extended discussion of “literalism”?
Originalist legal scholars such as the University of Virginia professor Larry Solum have delved deeply into analytic philosophy of language to articulate how their efforts to find the original meaning of constitutional language relate to social and historical facts that bear on that interpretive enterprise. In no sense is this a kind of “literalism.” In fact, what Shapiro calls “literalism” is more commonly named “textualism” in law — and sophisticated originalists are careful to distinguish themselves from textualists just because nobody really believes that the most important parts of the U.S. Constitution have an uncontroversial “literal” textual meaning. (Neither, it turns out midway through Shapiro’s account, do the fundamentalists. So why were we subjected to so much talk about “literalism” when nobody on either side of the comparison between law and religion actually does it?)
At most, Shapiro succeeds in convincing us that both some kinds of readers of the Christian Bible and some kinds of readers of the United States Constitution treat their respective texts as authoritative, and hence refuse to set their own wills above what they believe to be the best readings of their texts, where those readings have something to do with some kind of meaning attributed to some authoritative author (God) or ratifier (the People of the United States). That seems to be what we are meant to take from his quotes from Justices Neil M. Gorsuch and Amy Coney Barrett, who emphasize their unwillingness to substitute their own will for what they believe the text of the Constitution requires.
Those of us who are trained in the distinctive methods and goals of the law understand that no religious commitments are necessary to make sense of Barrett’s and Gorsuch’s deference to text. One characteristic feature of law is that it is made up of authoritative texts, whether those texts are constitutions, statutes passed by some legislature, or even judicial precedents. And long before the United States Constitution was ever drafted or the Christian Reconstructionist movement ever began, lawyers and judges were appealing to the authority of texts rather than their own personal judgments to justify their decisions.
Indeed, the view that law is about authoritative texts, which should be interpreted in a way that Shapiro oddly characterizes as “passive,” long precedes Christianity itself: The Durham University classicist Edward Harris gives a number of examples from ancient Greek legal oaths taken by jurors that articulated a distinction between those decisions dictated by written law, from which jurors were not free to vary, and those not dictated by written law, in which jurors could use their best judgments. Likewise, it’s hardly religious to suppose that the authoritative force of legal text arises at least in part from its authorship: In a democracy, we count as law only those texts that are enacted by someone who is authorized by the sovereign people.
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Even the “literalist” view according to which written laws are supposed to be interpreted just by taking the straightforward meaning of their text — which, I repeat, no competent originalist accepts — can be found in legal rhetoric centuries before Christianity ever existed. Here’s Demosthenes (as translated by C.A. Vince and J.H. Vince):
You understand, Athenians, the beauty of Solon’s directions for legislating. The first stage is in your courts, before men under oath, where all other ratifications are made; the next is the repeal of the contradictory laws, so that there may be only one law dealing with each subject, and that the plain citizen may not be puzzled by such contradictions and be at a disadvantage compared with those who are acquainted with the whole body of law, but that all may have the same ordinances before them, simple and clear to read and understand.
If I were Shapiro, I guess this is the point where I’d accuse Demosthenes of being a biblical literalist who was convinced that Solon’s lawgiving was a “prophetic and holy act” and who believed in “the inerrant truth of divinely inspired texts.” If Demosthenes is to be believed, Athenian jurors could indeed “obtain a meaning revealed through the text.”
Put differently, Shapiro offers up a false binary: Either the Constitution is a religious text, “like Leviticus,” that is to be treated as infallible revelation or it is “like Euclid’s Elements — a canonical but not infallible text that can be checked against other kinds of authority.” For originalist as for most nonoriginalist lawyers, the Constitution is neither. It is fallible, and it is, of course, “morally imperfect,” but, because it is also our fundamental law, it cannot be “checked against other kinds of authority.” The whole point of having fundamental law is that it is where the authoritative buck stops. But because Shapiro will not admit of a text that can be both authoritative and fallible, he hears judges express their deference to such a text, and he thinks he’s listening to religion, when, really, what he’s listening to is law.
What about the historical claim? Well, if we are to believe that originalism somehow comes from a school of biblical interpretation, we would need evidence that someone took the methods from the latter and applied them to the former. Shapiro offers no such thing. While he describes a religious movement (“Christian Reconstructionism”) that treats the Constitution as a religious text, he gives us no reason to believe that either originalist judges like Barrett and Gorsuch, or originalist scholars in the legal academy, subscribe to or have even heard of such a view. At most, he gives us some reason to think that Ted Cruz and Mike Pompeo believe that the Constitution is divinely inspired. But Cruz and Pompeo aren’t serious participants in the scholarly or judicial conversations about constitutional interpretation (despite what Cruz thinks), and at any rate even believing that the Constitution is divinely inspired doesn’t entail having transposed methods of biblical interpretation to legal interpretation. And it certainly doesn’t show that serious originalists think that “public meaning was a way of discovering God’s will in the aggregate.”
In the absence of either a conceptual relationship or evidence for an actual historical relationship, Shapiro’s argument reduces to mere guilt by association. Some kinds of religious believers reason this way about text; some kinds of constitutional lawyers reason in a similar way; therefore, the constitutional argument is religious. Such guilt by association also rests on a troubling kind of bigotry. It’s obvious from the context of Shapiro’s piece that we’re meant to believe that reasoning about texts like a religious person is supposed to be a bad thing — he variously calls originalism “Christian nationalist” and “theocratic.” But lawyers may have much to learn from the millennia-long tradition of religious scholars of many faiths who have engaged in careful textual interpretation.
It may surprise Shapiro to learn that there are real, meaningful, legal concerns that motivate originalists. Here’s one: Law works better when it’s stable and widely known, and when there are fixed and established procedures in place to change it. In the absence of those properties, law looks more like the brute power of whoever happens to have control of the right government jobs. For originalists, pinning constitutional law to a specific set of textual meanings enacted at a specific point in time is a good way of limiting raw power. You can agree or disagree with that argument. (I happen to disagree with it.) But first you have to understand it.
There are many important critiques of originalism, at least as it is currently practiced by the sorts of judges and scholars who dominate its intellectual and juridical word. Here are two that I believe to be particularly important.
First is the indeterminacy critique. Many critics of originalism argue that the interpretive method cannot deliver the goods it promises, like stability and publicity, because there is no reliable way to settle on a single correct interpretation of what the public meaning of a particular piece of legal text was at the time of its enactment. Of course, originalists have answers to this argument, and the literature on the subject has gotten very specialized indeed. But the critique is still live, and historians, in particular, have articulated it with great force.
A more important critique of originalism is buried in Shapiro’s repeated references to slavery. Much of originalism’s normative force comes from its presumptive democratic authority — from the idea that the people who ratified the Constitution were engaged in an act of popular lawmaking, and that it would be democratically illegitimate to allow unelected judges to change the meaning of the Constitution from what the people originally understood themselves to be ratifying without going through a process, like constitutional amendment, that is itself democratic and authorized by the original legislation. This is why so many find “original public meaning” to be persuasive: If the people of the United States were exercising democratic lawmaking authority when they ratified the Constitution, then our respect for that authority seems to require that we follow the law that they thought they were enacting.
“The Signing of the Constitution of the United States,” by Howard Chandler Christy, 1940U.S. Capitol
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The problem, of course, is that the people who got a ratification vote in 1787 were not all the people of the United States. Lots of people were unjustly — and undemocratically — left out. We can call this the “exclusion critique.” One way to read it is as a condemnation of the Constitution itself: Perhaps the Constitution is just democratically illegitimate, and we ought to understand it, with the great abolitionist William Lloyd Garrison, as “a covenant with death and an agreement with hell” that ought not to be obeyed.
Another response to the exclusion critique, and the one that I favor, is to recognize how the people who didn’t get a vote were also authors of the Constitution. This is an enterprise that I have recently begun to call “liberation constitutionalism” — one that aims to honor, among others, the many thousands of Black soldiers who fought to make it possible to refound the Constitution in the Civil War and then organized to vote to carry out that refounding during Reconstruction. Liberation constitutionalism’s critique of originalism is that — as conservative judges and law professors have actually applied originalist methods — the “public” in their “original public meaning” has implicitly been limited to white men. They have not, as yet, made a sufficient effort to understand the different meanings that the enslaved (and then the freed), women, Native Americans, and other people who have fought for their liberation — and in so fighting rewritten the Constitution in numerous ways — have given to those same words, or how those meanings might be integrated into the meanings given to the words by the white men who got a formal vote at the start, to come up with an interpretation of the text that respects the authorial authority of the entire people of the United States.
As the reader might have inferred from the foregoing, liberation constitutionalism is my view. Others, such as the Yale law professor Jack Balkin, have their own versions of the idea. While I’m inclined to reject originalism, at least as it is currently practiced by judges like Barrett and Gorsuch, I’d like to think that my rejection is the outcome of serious reflection on what originalism actually is.
Scholars of religion may well have something to offer to the debate over originalism. Because lawyers and theologians share the task of interpreting authoritative texts, I can easily believe that religious scholars know something about how that practice ought to be done that lawyers do not yet understand. But such a contribution can be made only on the basis of some effort to first take seriously what originalists actually believe and to understand how those beliefs arise from the legal enterprise itself.
Guilt by Association Is Not an Argument
By Noah Feldman
Modern originalism is a praxis of constitutional interpretation twice-born at the Supreme Court. First deployed by Justice Hugo Black as a liberal, rights-expanding approach in his dissent in Adamson v. California (1947), the method won few admirers until it began to be deployed to conservative ends by Justices Antonin Scalia and Clarence Thomas in the 1980s and ‘90s. Today, partly through the influence of the Federalist Society and the appointment of a majority of conservative justices, originalism has come to be treated as the dominant approach to constitutional questions on the current court.
Arguments against originalism must be jurisprudential and logical, not framed in the form of guilt by association.
In his masterpiece, Constitutional Faith (Princeton University Press, 1989; second edition with a renunciatory afterword, 2011), the scholar Sanford Levinson proposed that Black’s originalism may have been informed by the distinctively Protestant method of biblical interpretation that Black himself used as a volunteer Baptist Sunday-school teacher for two decades in Birmingham, Ala. This comparison, as I wrote in 2010, relies on “an overlap between the Protestant idea that the Bible may be interpreted by any individual without the mediating authority of the church and the originalist idea that the meaning of the Constitution may be ascertained without reference to binding precedent.” Levinson, who borrowed the title of his book from Black’s book, A Constitutional Faith (Knopf, 1968), contrasted this “Protestant” approach with what he called a “Catholic” approach to constitutional interpretation that draws heavily on authoritative interpretations by previous courts, which stand roughly in the place occupied by the Church Fathers in one tradition of Catholic biblical interpretation.
Note that biblical inerrancy was no part of Levinson’s analogy — nor does the notion of constitutional inerrancy find any place among contemporary theorists of the praxis of originalism, many (not all) of whom are committed Catholics like Scalia and Thomas. Indeed, contemporary originalism was married by Scalia to the philosophical theory of legal positivism, which pointedly takes no view at all on the morality of legal pronouncements. Originalists, by their own account, first engage in the historian of ideas’ task of ascertaining what contemporaries of a constitutional text would have understood it to mean; then seek to apply that meaning to concrete constitutional cases before the courts. The whole point of the enterprise is to remain neutral on the moral worth of what the Constitution demands: According to this approach, the Constitution is positive law, and must be applied without reference to whether its original meaning was morally right or morally wrong.
To be sure, I consider the originalists’ insistence on legal positivism to be philosophically doubtful at best. As the late Ronald Dworkin convincingly showed, constitutional interpretation cannot be performed without reference to moral judgments. Most prominently, originalism itself is not mentioned in the Constitution and was not assumed by its framers, who had a far richer and more complex set of ideas about how constitutional interpretation should be done. The choice to interpret the Constitution in the light of originalism therefore cannot be justified on originalist grounds. It must rest on commitments to a political morality that are extraneous to the text and its history.
It does no service to intellectual history to associate contemporary originalism with the idea that the Constitution is itself somehow divinely inspired, a view held today by few American religious believers and, to my knowledge, none of the Catholic conservatives on the Supreme Court. The arguments against originalism must be jurisprudential and logical, not framed in the form of guilt by association. They must be based on the absurdity of purporting to make binding decisions for the American people solely on the basis of circumstances that obtained in the 18th or 19th century. As Justice Oliver Wendell Holmes put it in 1920, “when we are dealing with words that also are a constituent act … We must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters … The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.”
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Allowing for Carl Schmitt’s characteristic overstatement (and overlooking his repugnant character), the dictum that “all significant concepts of the modern theory of the state are secularized theological concepts” has a certain applicability to American constitutional thought, with its talk of triune (OK, tripartite) government and mystically divided sovereignty. But analysis grounded in political theology has the responsibility to take the object of analysis seriously. Originalism, whether that of Black or of Scalia and Thomas, was devised to de-moralize constitutional interpretation and constrain judges. The Constitution that originalists interpret is meant to be binding, by their lights, not because it is inerrant or inspired, but because it is positive law.