The ‘Isms of Interpretation
In this age of popularized cudgeling of originalists, like Justices Kavanaugh and Gorsuch, I feel it necessary to explain opposing methods of interpretation and examine their flaws.
There are three mainstream methods of constitutional, statutory, and general textual interpretation: First being purposivism, which is the theory that a text gets its meaning from its author’s intent. The second is consequentialism, a method of interpretation that calls for readers to interpret texts in a way that renders the most beneficial or popular result. And last, originalism, a method of interpretation that is centered in the thought that all texts ought to be interpreted according to its meaning when it was written.
Each form of interpretation has been adopted by some past and present Justices of the United States Supreme Court. Justices Ginsburg, Breyer, and Scalia, in particular, have participated in a series of public forums concerning which of the three methods ought to reign supreme. Scalia advocated for originalism, Breyer for purposivism, and Ginsburg for consequentialism. Justice Scalia died in 2016 but his successor, Justice Neil Gorsuch, identifies as an originalist. So, it could be argued that the Court still holds the same ideological makeup. Those are just three Justices of a nine-seat Supreme Court. What about the others? Apart from Justices Clarence Thomas and Brett Kavanaugh, who advocate originalism, the remaining Justices haven’t explicitly “come out” as an originalist, purposivist, or consequentialist.
Before I can get to the core of the three dominant methods of interpretation, I must address the unpopular theory of strict constructionism. A strict constructionist looks to the original intent of the writer and enforces it to the extreme. A constructionist, for example, would advocate for the freedom of speech to be limited to oral and written speech in quill pen. There would be no recognition of the internet and other various forms of “speech” as it stands today.
As you read the next section, you may think constructionism sounds a lot like purposivism, but the difference between the two is that purposivism applies the author’s intent to today’s circumstances. Strict constructionism, on the other hand, applies the original circumstance and intent. This would effectively bring us back to quill pens and horsebacks.
Now that constructionism is explained, I think it can be agreed upon that constructionism is no way to interpret and apply a text.
Purposivism says that the meaning of a text should be derived from what its author intended to convey through his writing. To show why this doesn’t work, venture with me through this hypothetical: I wrote a law saying that all people must wear blue hats. But I actually meant that all people must wear royal-blue hats. A purposivist, in that instance, would go with what I had intended to write. So, he would penalize anyone not wearing a royal-blue hat. But that wouldn’t be fair to the people who live under that law. How can they abide by a law that’s interpreted using extratextual methods like purposivism? It’s not reasonable to expect the average person to know what his lawmakers were thinking when they passed the law. But it is reasonable to expect the average person to be able to interpret the plain meaning of the law. This is what originalists do. An originalist, in my hypothetical, would have followed what was written: All people must wear blue hats. To the originalist, it wouldn’t matter what kind of blue hat people wear. It could be royal-blue, sky-blue, navy, or any other shade because the rule broadly uses the word “blue.” And that would be consistent with the plain meaning of the text.
On a separate note, I have no doubt that the Founding Fathers would disapprove greatly of purposivism. John Adams said it himself when he said that we ought to have a “government of laws and not of men.” Purposivism does the opposite by looking to men, or lawmakers, for the meaning of the law, rather than looking to the law itself.
Next on the chopping block is consequentialism: The belief that people should interpret the law to render a result most up-to-date with society. They do this by using today’s English instead of the English from whenever the law was passed. Essentially, what they do is rewrite law. To them, the text doesn’t matter. But if the text doesn’t matter, then neither do the people. Americans govern themselves by passing written laws. If judges, who are supposed to be enforcing those laws, ignore what is written, then how Americans wish to govern themselves is made null.
To see consequentialism in action, consider this hypothetical: A law ratified in 2011 says that all people must use the bathroom that aligns with their gender. Seven years down the road, the word “gender” is put into question. Party A cites the definition of “gender” from a 2018 copy of a dictionary and argues that the word “gender,” based on that 2018 definition, includes people that identify as third-gender. Party B argues that the word is limited to male and female and cites a 2011 dictionary and its definition of the word. So, which is more reasonable? To the originalist, Party B, there is no mistaking what the word “gender,” in this 2011 law, means: Male or female. But to the consequentialist, Party A, the word that was written in 2011 would be construed to mean any of the several genders that have come into creation in 2018. When consequentialists apply the current day’s meaning of a word to pre-existing law, they are not applying the law that the people’s legislature has passed. They are applying the law as they wished it were written: In today’s language, which is not the case. It should be noted that when comparing a 2018 copy of Webster’s Dictionary to a 2011 copy, this same contrast between the definition of “gender” is shown.
Originalism and Original Meaning
Bryan A. Garner once said that originalism is “three-percent textualism.” This is because the principal function of originalism is the original meaning. It is important to remember that original meaning is not the original intent. Because original intent, as previously stated, is purposivism. The original meaning, however, is the basic principle that all texts should be interpreted as it is written and as it was understood at the time it was written. We do this all the time. When one reads Shakespeare, for example, one does not use modern English to interpret his writing. Instead, one uses English from the 1600s to interpret his writing. This makes sense because it was written in the 1600s. That same interpretive principle, to originalists, applies to all texts, including law.
Is Originalism Only for Republicans?
Originalism is not something believed exclusively by Republicans. In fact, originalism is advocated for by liberals, like Yale Law School Professor Akhil Amar and Bryan A. Garner, who is a lexicographer.
No matter where you fall on the political spectrum, if you believe in judicial restraint, the will of the people expressed through its legislature, and the protection of American liberty as the people designed it, then originalism is something you ought to consider.