Tuesday, July 10, 2018

Originalism is bullshit (and so is every other philosophy of constitutional interpretation)

He picked Kavanaugh.  Shocker.  And so begins yet another round of "my philosophy can kick your philosophy's ass," with special emphasis on, "yay originalism!"  The Senate will confirm Kavanaugh, after going through its usual Kabuki theater of bullshit questions that are really about abortion, where Kavanaugh refuses to answer and instead expounds upon the virtues of originalism, while salivating conservatives cover their laps with their books like pubescent teenage boys and credulous moderates gawk, wide-eyed, as big words cast spells upon their feeble brains.

And yet, originalism is bullshit.  I'll go further than that.  All philosophies of constitutional interpretation are bullshit.

This is all about abortion.  Consider two people, both entirely hypothetical:

Person A believes that abortion should be legal, and entirely a woman's choice.  Her body, her choice, as a matter of philosophical, ideological principle.  However, Person A does not believe that the Constitution provides for a federally-guaranteed right to an abortion.

Person B believes that abortion should be illegal.  It is the murder of a human life because life begins at conception.  However, Person B believes that, despite it being murder and despite a moral obligation to ban it in all circumstances, we are stuck with it because the Constitution guarantees it as a right, at the federal level.  Person B simply believes that the correct response is a constitutional amendment because Roe was correctly decided.

How frequently have you met either of these people?  Yeah, that's what I thought.  My point, obviously, is that there is a very strong association between your belief about whether abortion should be legal, and whether or not it is constitutionally protected.  That pattern of empirical association is real.

Which came first?  Your opinion about abortion, or your opinion about the Constitution and how it should be interpreted?  Come on.  You know the answer.  You form your opinion about abortion first.  That's one of those core beliefs that forms early and that is really difficult to change.  There are some prominent politicians who have flip-flopped on it (cough... cough...), but attitudes on abortion come first, time-wise.  Why?  Mainly because they are so closely connected to religion.

So, which influences which?  Does opinion on abortion influence interpretation of the Constitution, or does interpretation of the Constitution influence opinion on abortion?  The former.  Why?  Cuz' there ain't no such thing as time travel.  Philosophy of constitutional interpretation is rationalization.  If you say otherwise, may I please borrow your DeLorean?  I'm not a sports guy, but Gray's Almanac could still be of use to me.  Also, where's my hoverboard?!  I want a real one!

Look, people form their core political beliefs before they know shit about any of the abstract concepts that law schools teach and debate as philosophies of constitutional interpretation, yet somehow, conservatives manage to find themselves using a "philosophy" that manages to get them conservative outcomes, and liberals find themselves using a "philosophy" that manages to get them liberal outcomes.  And when their philosophies don't get them the results they want?  They're happy to bend their own rules most of the time.  The important social science point for the day, though, is that the political attitude comes first, time-wise.  Why?  Because people select "philosophies" most likely to give them the results they want most of the time.  And when they don't, it's easy to bend your own rules, particularly at the Supreme Court, because who's gonna stop you?

And originalism, of the "strict constructionist" variety, is the worst because it is the one philosophy that the Constitution tells you that you can't use, making it self-contradictory.  Remember the 9th Amendment?  "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  Translation:  there are unlisted rights.  Translation:  you can't look to the plain text of the Constitution for a list of rights.  Who says?  The Constitution.  What do "strict constructionists" do with this?  Ignore it.  Why?  Because it provides a more expansive view of rights than they want, and tells them, directly, not to use the philosophy that they are claiming to use.

It also creates a contradiction.  Remember this old paradox?  If you say that you are a liar, and I then claim that every word you say is the literal truth, my statement cannot, by definition, be true.  If you say a bunch of stuff, at least one of your substantive statements must be false, in which case, I am wrong, or every substantive statement is true, and your claim to being a liar is false, and I am wrong.  Originalists are the jackasses who don't see that contradiction.  And they don't want to.  Why not?  Because that was never the point.  It never is.  It's just about finding some pretense, and I hate pretense.  The Constitution tells you that you can't just go by the strict wording, in the 9th Amendment.  If you claim that you just go by the strict wording, the strict wording tells you that you are violating the Constitution.

Originalism is bullshit.  So is every other supposed philosophy of constitutional interpretation.

Yes, I have published in law reviews.  Multiple times.  I give them math.  Math is awesome.


  1. Hey, whoa, this is heavy-duty, Doc. (I wanted to change my Blogspot name to Marty McFly, but that damn thing didn't work at all.)

    As for the recent Gerrymandering stuff (hard G, I know), when Justice Kennedy kept saying "I want a theory"...was that bullshit? If he really wanted to vote to forbid Gerrymandering...he could have just done it, right?

    1. Yes, that was bullshit. Had I been arguing (on either side), I might have said, "Hello, McFly! Think, McFly, think!" Then again, without the context, the reference wouldn't have worked. So, I may have gone with, "what was your theory in Bush v. Gore, motherfucker? Didn't you say that it wasn't to be used as precedent in any other case because you couldn't come up with one? So, how about we drop this bullshit about how you need a theory, particularly when it comes to electoral politics and election law, OK Tony?" If he wanted to ban partisan gerrymandering, he could have done it, and he didn't need a theory. He could have just said the 14th Amendment means whatever the hell 5 Justices say today. Party is a protected class, or something. Kennedy doesn't get to say "I want a theory" after Bush v. Gore. My theory is that he's full of shit. My evidence? Bush v. Gore. QED.