Between Two Worlds

Here are some notes from J. Budziszewski's appendix on "Constitutional Interpretation" in his book, True Tolerance: Liberalism and the Necessity of Judgment:

"Originalism, as represented for instance by former Judge Robert Bork, has at least four deep flaws":

1. The reasons advanced by the leading originalists for reliance on the original intentions of the framers and ratifiers are incoherent. (Bork is an ethical neutralist, therefore he does not want judges to enact their moral views; however, his goal is to liberate legislative majorities--which is itself a violation of neutrality.)
   
2. Originalism presents the intentions of the framers and ratifiers as much less ambiguous than they really are. (Originalists rarely go to the trouble of penetrating the obscurities occassioned by the fact that different groups involved in the Constitution approved the same provisions for different reasons.
   
3. Originalists often construe original intentions as overriding the actual text to which the framers and ratifiers gave their endorsement. (Originalists tend to ignore or at least cramp the Constitution's open-ended provisions.)
   
4. Originalism gives no guidance for cases where the relevant intentions of the framers and ratifiers cannot be ascertained. (Their functional maxim is often, "When in doubt, defer to the other two branches," which does not follow from the axiom of relying on original intent.)
   

In its place, Budziszewski advocates "Neo-Originalism." This is "a way of relying on the intentions of the framers and ratifiers that avoids these four problems. The procedure I suggest involves three sharply distinguished principles of interpretation, and requires that they be followed in a fixed order."

1. The Text Principle. This is "to impute to the framers and ratifiers a general intention that the words that they actually wrote be taken according to their face value--as face value would have been taken in the English of the time of enactment." In other words, "it does not allow special intentions to override text: so far as possible, text controls." But because some of the constitutional language is ambiguous on its face, we need to turn to:
2. The Context Principle. This means that "choice from among the possible meanings be made according to the more specific intentions of the framers and ratifiers, so far as they were in consensus and so far as this consensus can be known." But of course, sometimes more than one possible meaning remains even after both of these principles are applied. Therefore we need:
3. The Reconstruction Principle. This instructs the judge: "Of all the possible meanings for a disputed passage, choose the one for which the best argument can be constructed from the philosophical premises that would have been broadly accepted at the time that the passage was enacted."

"In constitutional interpretation, reliance on original intent can take us no further than this. The Text, Context, and Reconstruction Principles will not produce a unique interpretation for each disputed passage. Arguments will still be necessary. However, not only do the three principles avoid the four pitfalls of the old, 'unimproved' originalism, they also go substantially beyond it by telling us what kinds of arguments to look for. No theory of constitutional interpretation can do more than this; therefore, it is enough."