What's Wrong With Originalism?
Originalism isn’t just a constitutional theory typically found amongst conservative judges—it’s a broader and more widespread theory about the best way to read texts, be they Shakespeare plays, the Bible, an email from the boss, or a text from a romantic prospect.
Whether you’re an originalist or not, it’s worth asking what assumptions originalism depends upon, and whether those assumptions hold up:
On the legal theory front, Harvard law professor Adrian Vermeule argues that originalism can’t ultimately deliver conservative policies and is instead a Trojan horse for liberalism. True or not, it’s an awesomely contrarian and provocative claim. But let’s talk about originalism beyond issues of law and policy:
Why should a text require us to honor the original intention of the author? Maybe the text’s meaning is optimized through a give and take between text and reader? If the text is divinely authored or inspired, perhaps we’d want to know what’s purely intended, but what if it’s not divinely inspired? What if our reading is better than the originally intended message?
Now say that God is the author or inspiration behind the text (or that the human author is perfect or omniscient)—why assume that God’s intent is to be read through an originalist frame? Perhaps God wants us to be constructivists. I don’t think this is the case, but the point is that a text can never tell us how to read it—such a judgment is extra-textual. Originalism is a decision as much as any other.
Great art is often produced as much by the unconscious as the conscious mind. But if originalism is only interested in the rational or explicit meaning of a text, doesn’t it miss out on the subterranean dimensions of meaning that are only implicit in the original act of authorship? For example, in daily conversation, people say all kinds of things—but grasping the subtext is what makes us emotionally intelligent rather than just analytical machines.
Originalism offers the safety and security of an apparent method. But methods not grounded in fundamentals are fallible. As much as originalism claims to eschew subjective interpretation, there is no guarantee it can avoid it. It’s possible that admitting bias and subjectivity is a better prophylactic than pretending they can be suspended.
Originalists seek to discover a single best interpretation of a text—but what if texts have inherently multiple meanings? What if the original meaning of a text is that it has, in the words of the Jewish sage, Ibn Ezra, “70 faces”? If texts only had one meaning, we wouldn’t need them—we’d get the message and move on.
So, if you’re an originalist, what’s wrong with my critiques? If you’re not, what arguments can you add? More to the point, how will you re-read the email that rubbed you the wrong way in light of your relationship to originalism?
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