Originalism for non-Originalists

After reading this essay the thing I appreciated the most was a link to one of Positive Liberty's sources: Philip Hamburger. Mr. Hamburger is pointed out as one of America's leading legal historians. With that in mind I read his analysis of the "Disestablishmentary Clause" (In which Hamburger calls the Establishment Clause):

... the Establishment Clause of the First Amendment meant only (1) there was to be no mandatory religious creed for America; (2) no federal taxes were to be spent on ordinary expenses of maintaining a church or ministry for the sake of worship; and (3) there was to be no federal interference with state establishments of religion in Connecticut, Massachusetts, New Hampshire, or any other state that used taxpayer funds to pay for church buildings or ministers' salaries. Other than that, the Establishment Clause posed no obstacle to federal spending in support of religion, limited of course to those areas where the federal government enjoys constitutional jurisdiction. This would include teaching religion in public schools in D.C. or federal territories (but not the states), hiring chaplains in Congress and the armed services, publishing religious proclamations, saying prayers at federal government events, publishing religious messages on its own currency and in federal publications, engraving religious symbols and words on federal buildings, and much more.

For me that says it all in the simplicity of the meaning of the clause in the First Amendment. Liberal Supreme Courts have diluted this clause to a meaning totally different from the ORIGINAL INTENT.
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by Jonathan Rowe
Positive Liberty

Feddie has a good post which links to one of Dahlia Lithwick’s articles discussing problems with the theory of “The Living Constitution.” There is just something about a “Living Constitution” that doesn’t seem legitimate. Certainly a theory which purports to “strictly construe” the Constitution seems better.

The Founders didn’t give us much; the Constitution is a relatively brief document. What they did give us is a text. Therefore, any theory which makes it seem like it’s okay to disregard the text will (rightly) seem illegitimate. Therefore, we must regard the original meaning of the text as sacrosanct.

However, the original meaning of the text often doesn’t result in a precise meaning. Often it takes us to a certain point, and doesn’t lead us any further.

Call that point — the proper original meaning of the text — point X. Which means that any result outside of X (lets call that point Y) is ipso fact wrong. However, point X may still give rise to theories X1, X2, and X3, etc., all derived from the original meaning of the text, and whose results may differ. As Richard Posner put it in Overcoming Law,

Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforeseen changes, but it also creates the possibility of alternative interpretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion. p. 233.

Even a “strict” interpretation of the words of the Second Amendment could lead one to believe that we have a right to the fuzzy limbs (arms) of an animal (bear). But there we’d clearly be in Y territory. So the original meaning of the Second Amendment obviously has something to do with a right to own guns. But that proper meaning doesn’t tell us whether that right applies to machine guns or grenade launchers.

And to answer those more specific questions, we need a theory. And in constructing such a theory, it is inevitable that judges in a common law system such as ours, will engage in such a “common law method of judging” (which Feddie, Justice Scalia and other like minded jurists decry), and will end “making up the law” as he or she resolves specific cases and controversies arising under the text of the Constitution.

One common method that liberals and libertarians use to achieve “results” which are often criticized as “activist” is to look at certain principles which “underlie” the text. Now, both Randy Barnett and Lawrence Solum issue one big caution to the underlying principles approach. As Barnett puts it:

I do have one caution about Jack’s [Balkin’s] appeal to what he calls the “underlying principles” of the text. When the text is vague, appealing to the underlying principles to determine whether or not it covers a particular situation is appropriate and inevitable. But what is not kosher is to dive beneath the surface of the text to ferret out the “underlying principles” and then resurface somewhere else entirely. This is a standard technique by which the text itself can be replaced with the interpreter’s version of the “underlying principles” that may even contradict the text itself.

Or see this post by Solum, where he cautions against “the use of underlying principles as a substitute for the constitutional text.”

Points well taken. The original meaning of the text trumps and underlying principles are properly used only to supplement when the text is indeterminate in a specific case or controversy.

But nonetheless…this combination of “original meaning” of the text plus underlying principles can be used to vet results that are commonly decried as “activist” and which are not at all what the Framers and Ratifiers of the Constitution expected (hence Balkin’s term “original expectation originalism” and his opposition to it).

Moreover, sometimes social conservatives, operating under the auspices of “Original Intent,” use the “underlying principles” approach to do exactly what Solum and Barnett caution against: subvert the original meaning of the text of the Constitution by substituting such “underyling principles.” For instance, take Joseph Story’s commentary cited by the late Chief Justice Rehnquist in Wallace v. Jaffree, which gives one of the “underlying purposes” of the religion clauses:

“The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . .”

Now, such an “underlying purpose” could lead one to the conclusion that only Christian sects have rights under the religion clauses of the Constitution. Indeed, see Clayton Cramer making such a mistake here, where he asserts

The idea that the establishment clause was intended to create “neutrality between religion and irreligion” is a cornerstone of the ACLU’s litigation efforts, but it is simply false. The establishment clause was intended to create neutrality between Christian denominations.

Now, the text of the Constitution simply does not differentiate between the “Christian” and “non-Christian” religions. And when one examines the original meaning of the term “religion,” for instance the debates over Article VI’s “no religious tests” clause, we see that the Founding generation did not use “religion” as an exclusive synonym for the different sects of Christianity, but rather, they realized non-Christian religions exist as well and are therefore covered under the generic rubric of “religion.” Therefore, if the Establishment Clause creates a “neutrality” or “non-discrimination” principle, the original meaning of the Clause dictates that it applies to all religions, Christian, and non-Christian (and if atheism and agnosticism are religions, which arguably they are, a neutrality principle between “religion and non-religion” which validates Everson).

And this creates problems for originalists, like Cramer. Thomas West realizes these undesirable results and somewhat disingenuously writes:

Hamburger does a good job showing that any idea of government support of “religion in general” is an illusion. There is no such thing as “religion in general.” All meaningful government support of religion is always support of a particular religious view, as 19th-century Catholics bitterly experienced. Today, support of “religion in general” would include taxpayer funding of Wiccans, Satanists, Muslims (including those who teach hatred of America), and worshippers of that favorite goddess of some feminists, “Our Sweet Sophia.”

I say “disingenuously” because, West realizes that if the Establishment Clause contains a non-discrimination principle, the results will be undesirable. And apparently for that reason alone, he rejects this interpretation.

The alternative, endorsed by West, is that the Establishment Clause simply forbids the government from “establishing” a national sect. And if government wanted to, through its aid or official acts, support some particular denomination of religion over others (Christianity over non-Christianity, Catholicism over Protestantism, Mormonism over non-Mormonism, etc. etc.) it could, which is why West writes, “[a]ll meaningful government support of religion is always support of a particular religious view, as 19th-century Catholics bitterly experienced,” because, back then, government sometimes aided and endorsed Protestantism over Catholicism and the other non-Protestant religions.

But…how does Clayton Cramer respond to such a theory?

Nope. Look at the language of the establishment clause: “Congress shall make no law respecting an establishment of religion….” “Respecting” means “having to do with.” How can Congress privilege one sect or another without passing a law that has something to do with that sect?

James Madison couldn’t have said it any better, which is why he thought Congressional Chaplains were unconstitutional under the Establishment Clause. The point is, as I’ve just demonstrated, if the Establishment Clause requires government neutrality, the original meaning of the text requires that it apply to religion generally not just the Christian (or as some argue the “Protestant”) sects, which leads us to the results which Thomas West wants to avoid (Wiccans, Satanists, Muslims being constitutionally eligible for support programs which government offers to “religion in general”) and arguably requires constitutional neutrality between “religion” and “irreligion.”

Thus, “original meaning originalism” can often lead to results which some originalists term “activist.” Is this why Randy Barnett calls original meaning originalism “An Originalism for Nonoriginalists”?