Wednesday, August 24, 2005

Originalism in Interpreting Committee Results

Kevin Drum is involved in a discussion over "originalism" in interpreting the constitution, on which I've commented, but will expand here.

As a bureaucrat I've been in many meetings, some of which were committees, some just work groups. A minority of meetings had some sort of product representing the consensus of the members. Typically the mere fact there was a meeting meant that some people had strong feelings and we needed to be inclusive. So there's a parallel to the Constitution making process. Some of the meetings were of peers, some were with a decision-making authority.

What happened when issues arose after the meeting? The way I remember it, we seem to have wavered between two rules of interpretation. At one extreme we adhered to strict originalism, particularly so when it was a meeting with a decision maker who wasn't in the room when we debated interpretation. The issue was what we thought the decider had meant and intended. Ordinarily if that made sense, we went with original intent. But if new factors had arisen we'd often try for a new meeting (i.e., a process of amending the original result). Sometimes, though, we'd decide we could read the mind of the decider, that today he or she would decide X, even though the original intent might say Y.

Toward the other extreme, particularly in the wake of a meeting of peers, the question was whether the issue was such we, as a subset of the meeting, felt comfortable deciding it or whether the uncertainty was so great and the importance so crucial that it was worth the hassle of reconvening a meeting.

Seems to me the same applies to the Constitution. Take one example raised in the comments on Kevin's blog--the Lousiana Purchase. While Jefferson wasn't in the Constitutional Convention, and had many doubts about the Constitution and how to interpret it, he does count as a "Founding Father". In 1803 the LAP(urchase) fell into his lap. He recognized that buying it would stretch the Constitution beyond what he was comfortable with. But the practicalities were that he couldn't afford the time required by the amendment process and enough of the elite agreed with the need for LAP to get the treaty through the Senate. Presumably, the same elite would and could have pushed through an enabling amendment, if time had permitted.

So I view "originalism", "legal realism" (the idea that the Court follows the election returns and the power elite), "critical realism" and all the other theories as make-work for lawyers. The reality is that SCOTUS can and will make decisions they can get away with, based on the reasons that make sense to them. There's no magic rule, except what works.




One of the problems an originalist runs into is that illustrated above in the reference to the split between Scalia and Thomas. It seems that Thomas might well say that we should give back the Louisiana Purchase, because he applies originalism to the original document. Scalia seems a bit more apt to say while originalism might lead me to position A, 202 years of history makes me disregard the original intent in favor of pragmatism.

I'm always reminded of committees I've participated in. We don't reach an agreement on how our work product will be interpreted. In my experience the question of interpretation is answered by wavering between "originalism" and "avoiding stinks"--the latter saying: if no one with a concern in the issue will raise a real big stink, we'll all quietly change the committee's work. Seems to me that's the way the Constitution has operated. The Federalists didn't make a big enough stink about the LA Purchase to void the treaty, so we changed the Constitution.

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