Needless to say, I've heard the mantra from the Tea Party that we must be faithful to the Constitution. Yet, what exactly is involved in demonstrating faith. If anything, the best version, however flawed, of such an opinion comes from Justice Scalia's commitment to something he calls "originalism."
Justice Scalia defines originalism as the only way of proceeding in terms of constitutional interpretation. In originalism, the text as law is interpreted under looking to the historical authorship of the law up to including the legislative intention in which the law is authored. By looking to this historical authorship, one assumes that one can have access to the authorial intention of the law. Anything short of originalism is a picking and selecting arbitrarily at what one wants the text to mean-such people are guilty of a form of judicial activism.
If we stipulate ahead of time that judicial activism is essentially Judges reading into the law what their personal views, then any time a Judge reads his personal views into the act of interpretation it can be said that such an act is wrong when interpreting the law. If one accepts originalism as a way of proceeding, then they, too, believe prior to the act of interpretation a personal view that they read into the law as well. Their prior commitment to finding the historical situation in which the law was written violates the central principle of their criticism of judicial activism.
What is ludicrous above is the fact that it is an unrealistic assumption that interpreters can separate themselves from the body of preexisting beliefs. time and place of their current situatedness. Since the law is about interpreting the law, one stands at the horizonal moment of a text -- between past and future expectation. Interpretation is never concerned with the past in a way that the originalist assumes the past available. Instead, the interpretive act is always futural. We look to history and what has happened in the past for our practical need to engage the law in the present, that is, toward the demands of our current situation. I think an example is in order to organize our intuitions on this very matter. The following example is inspired by its analogue in Ronald Dworkin's Law's Empire.
Let us suppose that Suzy is a tenant in a building. Under state law, a "Landlord must provide suitable time for tenant eviction." Suzy is getting her car repaired, and cannot leave immediately despite her landlord's desire for her to vacate the apartment so as to rent to more reliable tenants. Suzy leaves her apartment for a second to do some grocery shopping after staying 3 days over the day the landlord wanted her to vacate the apartment. As such, the landlord uses his key and starts to move all her possessions onto the lawn in front of the building. When she returns, she finds her pieces of furniture have been rained on, and the landlord ushering his nephews to hurry with her belongings. Suzy and her landlord end up in court.
The source of the disagreements rests between the two parties on how to define a "suitable time for tenant eviction." Laws are written with general appilcability in mind, often without precision in the law's authoring. Legal interpretation is assumed to flesh out the generality of what the laws shall mean in terms of their applicability. Suzy's civil claim would be compensation for property damage, and the landlord would counter claim the right to evict a tenant after suitable time has passed, arguing 3 days is "suitable." Any look to the legislative intention might be something like general guidelines so as to curtail private quarrels between interested parties. What is one to do for the legal interpretation of the state statute?
The above is a palatable example. It drives the fact that the law is a socially argumentative practice built on the praxis of concepts, not the stasis of universal meanings solidified in the past. Legal interpretation is more like Aristotle's notion of phronesis in which one gets better at practical reasoning in moral situations the more one gets better at being/cultivating the virtues over time. For this reason, this is why Gadamer revives Aristotle on exactly this point. The act of interpretation is connected to the past in a lively and workable way through the needs of interpreter. Privileging originalism is just hiding one's conservatism in a way that stagnates judicial review and does not reflect the overall hermeneutic experience of legal interpretation.
It is one thing to beat the drum of the untenable premises that undergird originalism, namely, that interpretation is about having epistemic access to the past in the way originalism thinks it does, but it is quite another to leave empty what a good theory of constitutional interpretation would have to answer. As such, I now turn to outline several unrelated points to the above post on what I think a good Constitutional theory of interpretation ought to have.
1) Constitutional interpretations employ normative concepts. Central to these concepts is justice, and as such a good theory must give us an answer to what justice is, and its relation to interpretation.
2) Constitutional interpretation relies on the assumption that the Constitution has legitimacy, that is, the Constitution has authority over us. This means that a good theory of interpretation must give us a story as to why we find the Constitution authoritative.
3) Conceptual analysis of interpretation needs to cut through the normative posturing; a deep philosophical story of what exactly interpretation is, and how far interpretation can go epistemically are necessary to give us a fuller story. I have alluded to what I think would be a good analysis on this end, a Gadamerian story of legal hermeneutics as found in Truth and Method.
In conclusion, I will summarize my thoughts on originalism. First, the originalist rhetorically move to say that judicial activism is nothing more than reading what you want to read into the law is absurd in that originalism is guilty of the same way it defines judicial activism for other competing acts of interpretation. Moreover, I show that what the criticism lacks is a realistic picture of how interpreters are using the past to secure applicable knowledge for their present situation. This means that interpretation is always normative, never impartial--always bound to the reconstituted historical moment of the interpreter. All interpretations points to the present, and this is the more realistic temporal relation revealing the past as never static and accessible to be known in the way originalism thinks the past available. Instead, interpretation is an act, a lively and workable engagement with the text, past and situation one finds oneself in; the analogues for this type of activity is Aristotelian phronesis by which we live morally better and better by acquiring the practice that only living morally in experience can provide.
In essence, I oppose originalism by defending Gadamer's conception of phenomenological hermeneutics as a way of proceeding on these matters. In addition, I end by outlining several concerns as to what a good theory of constitutional interpretation would look like.