If The End Is Our Beginning, Then The Beginning Is Our End*

And so, if #SCOTUS rules in a way that’s inconsistent with the preferred policy outcome, that must be an indictment of originalism itself—rather than of the critic’s complete lack of a coherent principle that’s independent of #winning.

It’s saying the quiet part out loud—again.

— Steve Vladeck (@steve_vladeck) November 15, 2021

I’m not so much entering this particular conversation with Professor Vladeck as I am always amazed where this conversation goes. I’m reminded of Wittgenstein’s metaphor to critique modern philosophy: a fly that has flown into a bottle and can’t find its way out. Discussions of “originalism” or even textualism are wholly misplaced as sources of insight or knowledge. The entire conversation, in other words, is just a fly buzzing in a bottle. The fundamental problem is that lawyers never study literary theory or criticism, or philosophy.

Originalism assumes a purer, more authentic understanding of the Constitution can be known, but modern literary theory and deconstructionism in particular show us an “original intent” doesn’t exist. The author of a text (technical term for  any piece or form of writing, to keep it simple) cannot even know the original intent. A text exists independent of the author. It is the interpretation/understanding of the audience that creates the intent, not the author. Oh, the author may have an intent, but it is irrelevant to the audience. Let me give you a personal example. 

I can't now remember the sermon I gave (I was in seminary at the time, that was 30+ years ago now), but I remember the story I used as my example for my point. The story was from the re-boot of "The Twilight Zone," a story titled (IIRC) "To See The Invisible Man."  The premise was fairly simple:  to punish crimes against society, in this case simply the crime of being irascible and somewhat misanthropic (a condition my wife often accuses me of, with good reason), the protagonist is branded on the forehead with a mark that designates him "invisible."  No one can speak to him, trade with him, allow him any human contact whatsoever.  In this society there are cameras floating about, enforcing society's rules, able to call police to punish any infraction:  and flouting the law against "invisibility" is punishable by invisibility itself.  The man is sentenced to one year, and while he starts off defiant, he ends crushed.

At one point he tries to befriend a blind man in a cafe, until someone else whispers to the man "Invisible!", and the blind man curses the convict and rushes away.  At another, he confronts a woman and begs her to recognize him; she is, of course, too afraid and runs away.  The year ends, his brand is removed, and he returns to society a changed man.

Only to run into the woman who was afraid of him, and now she is branded "invisible."  His heart overflows (a Biblical metaphor), and he hugs her and tells her he can see her, even as the cameras swirl around barking out warnings and signaling for the police to come.

It's a powerful metaphor about community, and I'm pretty sure I used it that way, to emphasize the point of Matthew 25, "Lord, when did we see you?" But a week later, a mother came up to me to thank me for that sermon.  I was unduly flattered, and then amazed.  Her son, she said, had been wondering about the reality of God, about believing in Jesus (he was 14 at the time, IIRC; odd to think he's an adult who probably has children now who could be that age), and my sermon spoke to him about seeing the "invisible."  He took it to mean Jesus was real even if unseen.  Which was not, of course, my intent at all.  But I'm still glad it helped him at that time.

My intent was not the intent that boy understood; but was he wrong? Or was I? Or were both intents sound, even if one is lost forever?

You can’t find “original intent.” You can only interpret the text and argue your interpretation is what the author(s) intended. But that’s not the same as establishing an objective determination of something that simply doesn’t exist. The reason to say it does exist is quite simply so you can say you’re on the side of God, and this is what God meant. No judge will say that, but that’s what the pursuit of this analysis is.  It is also, in literary criticism as well as biblical exegesis, an act of astonishing hubris and ideological blindness.  It's unsustainable and indefensible, but it continues to be discussed at the higher levels of the law as if it weresomething from which the kinks (the distinction between the theory and those who practice it, or "originalism" and "Originalism, Inc.", an argument that borders on the No True Scotsman fallacy, with this distinction:  originalism even in theory is indefensible.) could be ironed out if men and women of goodwill were just left alone long enough to fix them.

The question then is: why pursue original intent at all? There is a need in law to determine the intent of the legislature in passing a statute. Courts will sometimes look to the legislative history for guidance. But there’s a statute on the books that requires the Post Office to funds it’s retirement plan to such a degree the USPS has been run to the brink of bankruptcy, and given the current Postmaster General an excuse to run it into the ground (because it is “losing money”). And yet the sponsor of that law says that isn’t what he meant at all. Shouldn’t that “original intent” save us from a world of postal grief?

Well no, because the legal system doesn’t work that way and because “original intent” applies only in narrow cases or, more accurately, when it suits the judges. The language of the statute in question is pretty clear. The former legislator is either an idiot or embarrassed now by what he has wrought. Either way it’s not a close question, so it doesn’t get the original intent scrutiny.

Original intent is just an attempt at forming a judicial philosophy that suits the holders of it (who are not coincidentally often very conservative Christians. The connection to Xian fundamentalism is not accidental.). Judges have, from time to time, tried to justify their decision making process by creating a philosophy to explain it. The best of those, because it is the most honest, is the theory of the judicial hunch (yes, that’s a term of art). The theory is that, after due consideration, in hard cases, the best judge has a “hunch” what justice would be in a case, and finds a way to say it is so. The irony here is that the "judicial hunch" school of jurisprudence was forged in the hot fires of the courtroom and the lives of real people and parties before real judges.  It is not a product of the rarified atmosphere of law review articles and theories bandied about by law professors.  The bottle the fly is trapped in, is a theoretical one.  Sometimes the best thing to do with such bottles is to smash them, and nothing smashes theory quite as quickly as its encounter with reality.  The judicial hunch is a recognition of reality, and that human beings are doing the judging.  Original intent intends to make the judges Delphic oracles divining the messages of the gods from fumes and chicken entrails.  I much prefer the judge who, however wrong headed she may be, is trying to determine the law for a particular human context, v. a judge who pretends to be interpreting the word of the lord and pronouncing an oracle.

IOW, you can’t take originalism seriously because it’s built on a false premise that brings the house of cards tumbling down every time. The whole idea is to put the analysis beyond argument because “truth,” a concept which I’m this context is a chimera: a false construct as well as entirely mythological.  In this case a mythology that doesn't even purport to reveal a profound truth, but rather to obscure the simple one:  this is the outcome the judge prefers, because they think they speak for a higher power.  It is, in the final analysis, a very anti-democratic posture. Which, again, considering many of its fiercest judicial advocates, is hardly surprising.**

*And I do intend "termination"!

**That and the chief propononent and in many ways scion of the theory, the late Antonin Scalia, turned it on and off like a water faucet, as the situation suited him.  Justice Barrett, his student, has taken Scalia far too much at his word, and far too little at his actions.

These people are seriously screwed up and dangerous but not as dangerous as the founders fetish that is all about defeating the progress of the past two centuries.

Yeah, pretty much like that.  Except again ironically considering the religious backgrounds of Scalia and Barrett especially, they have made idols of those "founding fathers" and used them to distort the very "word" they profess to so objectively interpret on their idols' behalf.