I believe in individual liberty and personal responsibility. I also believe in science as the greatest instrument ever devised for understanding the world. So what happens when these two principles are in conflict? My libertarian beliefs have not always served me well. Like most people who hold strong ideological convictions, I find that, too often, my beliefs trump the scientific facts. This is called motivated reasoning, in which our brain reasons our way to supporting what we want to be true. Science historian and prominent libertarian, Michael Shermer commenting in 2013 on his epiphany about how political ideology elicits the powerful, unconscious motivated reasoning bias and what effect on conscious reason it has.
A recent B&B discussion centered on different modes that courts and others have applied to interpret the constitution. From this observer's point of view, some modes of interpretation such as originalism is a means that many political ideologues employ to reason or rationalize their way into finding interpretations that fits with their personal ideology and morals. According to one source, originalism arises from one of three theories of interpretation, original intent, original meaning and textualism:
The original intent theory, holds that interpretation of a written constitution is or should be consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Most originalists, such as Antonin Scalia, are associated with this view.
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.
Andrew Shankman, Associate Professor of History at Rutgers University-Camden commented on originalism as described in his 2017 book, Original Intents: Hamilton, Jefferson, Madison, and the American Founding. In view of his book and his academic position, it is reasonable to see Shankman as an expert on the topic of constitutional interpretation. Shankman's essay is entitled What Would the Founding Fathers Make of Originalism? Not much. Shankman examines the validity and authority of originalism based on his interpretation of the record of thinking and behavior of Hamilton, Jefferson and Madison (HJM).
Shankman: “President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.”
Shenkman poses the question of whether there is a solid historically defensible claim for applying the original intent theory of originalism. He asserts that the historical records of thinking and behavior by HJM “shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings.” The conclusion he draws is that Hamilton and Madison both endorsed a “living, expansive, and flexible Constitution, one that changes with the times and over time.”
For context, the idea of originalism is new and championed mainly by politically conservative ideologues. Historian Mary Sarah Bilder commented:
“The tradition of American constitutionalism, practiced by judges of all political persuasions over two centuries, has always held out an important place for history in the interpretation of the Constitution. But originalism is not constitutionalism. When the word ‘originalism’ began appearing in legal periodicals in the 1980s, a number of influential scholars and judges, primarily on the right, quickly came to treat it as the sole legitimate method to decide constitutional cases. Originalists initially thought that the judge should interpret the text of the Constitution according only to the intent of the men who drafted and ratified it. Today, most originalists contend that a judge should abide by the text’s ‘original public meaning’ — a term of art that originalist scholars have written thousands of pages trying to explain.”
According to one commentator, proponents of originalism have begun to change the intellectual basis of their support for the concept because historians keep showing there the historical record simply does not support originalist reason or rationalizations. The new intellectual battle ground has shifted to history-free safe zones including the philosophy of language and legal doctrine:
Whether it be the various political, social, or economic contexts from which the Constitution developed, the motivations of the participants involved in its construction, or the broader purposes that constitutional partisans hoped to achieve through its enactment, none of these have much bearing on the Constitution’s purely linguistic public meaning.
In short, Originalism 2.0 was a neat trick: it had the imprimatur of history without the actual work and, in fact, asserted that the work was wholly unnecessary. This turn towards public meaning has enabled originalists to claim, as they now frequently do, that they and historians, by targeting categorically distinct kinds of meaning, are simply engaged in fundamentally different tasks. The Constitution’s legal and historical meaning are simply different in kind. If historians claim otherwise, it is because they are guilty of conceptual confusion; because they have made—not a historical error—but a philosophical one. Rather than pledging to do history—as Originalism 1.0 did—Originalism 2.0 claims instead to have escaped history.
In other words, originalists have stopped trying to beat historians at their own game—by rewriting the very rules by which that game is played. They seem to have realized that they will never know as much as historians about the Constitution’s origins or historical development, so instead of fighting a losing empirical battle why not stake out different conceptual foundations altogether? That way, most disputes can turn on philosophy of language, interpretive method, and legal doctrine (as they now do) without dwelling on the details of the historical past. And if historians wish to object, they dare not mention the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century; they must, instead, offer a series of methodological and philosophical arguments targeting originalists’ conceptual formulations. In other words, historians must fight originalists on their own non-historical turf. So even while those few historians who have engaged Originalism 2.0 have leveled a persuasive bevy of criticisms against it—Jack Rakove has correctly called it “tone deaf to the past” and Saul Cornell has appropriately labeled it “thin description”—champions of Originalism 2.0 have easily sidestepped such assessments. For, in appealing to precisely the kinds of historical materials that originalists have studiously circumvented, historians have played into originalists’ hands. Originalists have not engaged this historical work on its merits, but simply dismissed it as irrelevant, mocking historians’ conceptual confusion in the process.
Motivated reasoning in politics: If the shift in defense of originalism from arguing historical antecedents to non-history sources of authority accurately assesses the situation, it is a brilliant maneuver. Originalists have the problem of pounding the irregular-shaped constitution that lies over the irregular-shaped real world to fit into the perfectly square peg of political, social and religious conservatism. They tried relying on fake history and that failed. Originalists finally conceded that point. They have retreated to defenses that ignore history. If that isn't a case of motivated reasoning distorting reality to fit ideology, then what is?
B&B orig: 11/29/18
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