The Interpreter's Purpose

(…ruled by the Pharisees.)

Originalism's avoidance to making normative legal decisions is a calculated effort to hold back the legislature from making broad regulatory government policies. Judges, like Scalia, are deceptively advocating a theory of legal interpretation that is designed to diminish the court’s role in protecting society and realizing democracy. Originalism's goal is to undermine the legislative and judicial function of the courts by instituting a purposely dysfunctional interpretive ideology that achieves its goal by abstaining from reinforcing the values and principles of a normative democratic legal framework. Textualism is incoherent in principle and practice. Originalism is political activism directed toward omitting the principles and norms of democracy. But publicly this laisser passer, do-nothing doctrine of constitutional interpretation is presented as being cautious, objective, conservative, and original to the constitution's meaning. Originalism is an ideological mechanism for changing the minds, judgments, and values of its adherents by providing a frame of reference for systematic falsification. Professor of Law at the University of Southern California, Andrei Marmor, writes in his paper entitled, The Immorality of Textualism:

"In any complex organization, broad policy changes can only be accomplished if those who determine the policy and those who are supposed to carry it out act in concert and share the spirit of the general goals to be advanced. Imagine, for example, a large corporation that strives to implement a new policy. If the mid and low-level executives could require very detailed instructions on every move they have to make, and then they would try to follow the instructions to the letter in a Textualist fashion, it is difficult to imagine how the new policy could ever be implemented. Textualism is motivated precisely by denying the legislature this spirit of cooperation that is needed to implement broad regulatory policies"(Ibid., p.16).

Conversely, Originalism’s scheme to incapacitate constitutional interpretation must not itself be a list of detailed instructions. Instead, embracing an unified passive methodology result in non-action and is much better suited for dealing with the variety of legal situations that are likely to come before a Originalist judge. This way the judge can spontaneously and independently determine how to interpret law that is consistent with Originalism. First, there must be an effort to persuade the legal community to think and act in a desired pattern and to achieve conformity of beliefs, thoughts and actions--or inaction. Enlisting members for an ideological school of legal interpretation is a subtle and invisible way to unify, or integrate group opinion and beliefs. Such homogenizing of opinion and beliefs is what Ellul Jacques called “sociological propaganda.” Sociological propaganda characteristically is not easily recognized even by its spokespersons.

The Originalists’ criteria and rules for interpreting the constitution overshadow the constitution itself. Legal formalism requires ignoring purpose, values, and goals of the original authors such as Edmund Randolph’s contribution to the preamble of the Committee of Detail at the Constitutional Convention in which he advised in writing the constitution to “1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and 2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states." But this is all extra-textual information and is not to be considered by the interpreter. In some cases, Originalism is ignored, and in other cases, Originalism is adhered to even when it contradicts the constitution’s text. Originalism has metamorphosed into Constitutional Scholasticism. The Latin word “scholasticus” means, “that which belongs to the school.” Scholasticism has the tendency to transforming from a school in search of the truth to the Truth itself. The Medieval Scholastics would be asked, “How many teeth are in a horse’s mouth?” They would then search all the ancient texts of Plato to find every reference to a horse to find the answer until one day someone said, “Let’s look in a horse’s mouth and count them.” That is when scholasticism ends.

Purposive Interpretation In Law

 

The antithesis of Originalism is known as the “Purposive Interpretation,”or the “The Living Constitution” principle for interpretation.

The arguments presented so far are not the only counter-arguments against Originalism. The critique only touched on the methodological problems of this school of legal interpretation.  Legal theorists have argued that Originalism ignores the obvious relation between the law and society’s political power structure. Legal rules are applied without regard to the real complexities of society that include structural inequalities of classes and the historical context that social behavior is acted out. These existential factors cannot be subtracted from the application of law—that would be selectively non-empirical.

Such abstract formalism is dangerous as exemplified by the Originalist German judges’ failure to stem the rise of totalitarianism in Germany during the 1930s.  Law is politics, and legal decisions are also political decisions. Historically, the law has advanced the interests of the wealthy elites by subordinating the interests of women, minorities, the poor, and the working class. An Originalist reading of the constitution intrinsically reinforces the historic acceptance of slavery and denial of women’s rights.

Taking into account society’s complexity, history, diversity, social structure, and system of cultural values, interpreting constitutional law is portrayed by Originalists as “judicial activism” since a judge can overrule any law as unconstitutional. This is not just an issue of interpretation methodology, but of the judge’s role and duty to protect the Constitutional law that represents other implied values. The exercise of judicial discretion does not necessarily lead to chaos and abuse of power just as judicial inaction does not necessarily mean sound neutral judicial judgment. The effort to avoid “judicial activism” is itself taking into account the hypothetical consequences of judicial decisions and does not automatically negate the judge’s political intentions, but instead merely conceals, or masks them.

There is in physics the concept of the observer effect that postulates the very act of observing itself changes the thing being observed.  An observer does not have direct access to phenomena because interaction is unavoidable. A common example of this principle can be found in physics where any effort by a scientist to observe an electron would require a photon to interact and change the path of any targeted electron. The subjective observer, no matter how passive, can only be artificially subtracted from the objective event or thing perceived. Analytical separation of the passive Subject on the one hand, and Objective reality on the other, is a conceptual falsification of experience.

Likewise, the interpretation and understanding of text involves an interaction of the parts with the whole.  The whole text can only be understood by reference to the isolated parts and yet each part can only be understood by referring to the whole. These two conceptual polarities of the general and the specific are essential to understanding text. This circular character of interpretation is called the Hermeneutical Circle. The meaning of text can only be understood if its entire historical context, cultural values, authorial intentions, and literary traditions are included.  This approach is the antithesis of Textualism that assumes words have a fixed, or static meaning whereas words are actually imprecise and often deliberately ambiguous to convey their meaning.  Terms like “equal protection,” “cruel,” “Liberty,” “Freedom,” “Rights” are used in the constitution precisely because they are ambiguous and yet remain powerful normative abstract concepts that remain meaningful in all ages. The most hideous effect of Textualist propaganda is its de-realization of these Universal concepts of democracy as products of mere functional political bureaucratic processes and not of a way of life, of a concept of society, of a system of democratic values and historic vision

This inherent ambiguity of language and intended imprecision of words—especially of normative concepts—is what makes judicial reasoning indeterminate and unpredictable. The history of the Supreme Court is a history of disagreement and dissent. The Originalists’ belief in only one correct judicial deduction from legal text is itself yet another non-textual assumption brought into litigation to determine legality. Alternative interpretations of law are not a weakness as the Originalist claim, but a great strength for anticipating historical change and different mitigating circumstances by providing flexible interpretations.

In 1944 a young child named Aharon Barak was smuggled out of the Nazi created ghetto Kovno in a suitcase by a Lithuanian farmer. Aharon Barak later became a professor of law at the Hebrew University of Jerusalem and President of the Supreme Court of Israel from 1995 to 2006. He is known for his theory of Purposive Interpretation of reading constitutional texts.  He has presented his interpretive methodology in this book entitled, Purposive Interpretation in Law, (Princeton University Press, 2005, pp. 464).

There is one section of the California Penal Code that has always impressed me. In the “California Peace Officers Legal Sourcebook (March 1994)” there is a section under Criminal Law (13.1) where it says the following:

"While California legal system is, for the most part, based on the English common law system, California law is less tied to tradition and more “people-oriented” than the old common law. Common law is bound to the letter of the law. The California legal system is directed toward the spirit of the law. The California Legislature expressed its intent specifically when enacting Penal Code section 4:"

This is actually how the California Evidence Code 4 in 1994 reads:

“The rule of common law, that penal statues are to be strictly construed, has no application to this code. All its provision are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice” (California Penal Code, Evidence Code, 1994, Division 1, section 2, p. 135).

The Legal Sourcebook further says, “…when a reasonable question arises as to the meaning or intent of a given law, the courts will look at not only the literal meaning of the words used, but also the spirit in which the statue was written, its relation to other code provisions, the legislative intent behind it, and the scope of its effect.”

There is hope! Originalism is easy to defeat, the living constitution is easy to defend. Transforming the US court system is a necessity for preserving democratic values, and living a lofty, great, rounded, splendid life.

The Hopi Indian word

“Koyaanisqatsi”