Originalism Without a Constitution?

Last updated on: March 4, 2020 at 9:08 pm by John Ehrett

Originalism Without a Constitution? 2020-03-04T21:08:53-05:00 John Ehrett

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I recently came across a compelling article by Sebastian Milbank (son of the eminent English theologian John Milbank), which takes issue with the undemocratic practices of European courts. Milbank points to the decision by Germany’s Federal Constitutional Court to identify a “right to self-determined death” in German constitutional law, as well as the European Court of Human Rights’s determination that the placement of crucifixes in Italian classrooms violated student’s rights. In neither case could the court’s decision be justified according to the logic of democracy; rather, the rulings were examples of “juristocracy” par excellence.

Milbank explains (correctly) that the framework of human rights law in the West did not emerge from a vacuum: crafted after the devastation of the Second World War, human rights principles reflected a distinctly Christian sensibility, grounded as they were in traditional Christian affirmations of the dignity of persons. The “thick,” or substantive, content of human rights was derived from “deeper sources than mere precedent or convention”—from a “shared cultural patrimony,” as opposed to “a discourse of power and coercion in which words mean whatever judges say they mean.”

To be clear, I think Milbank is right on the money. European “constitutionalism” really does seem like a pretty reliably center-left political enterprise, one that never really reaches legal conclusions that would scandalize a faithful reader of the Guardian or the New York Times—which doesn’t strike me as a particularly principled approach to judging. I find Milbank’s complaints particularly interesting because it seems to me that the judicial philosophy he’s looking for has already been developed at great length—and perhaps it’s something America could even give back to its motherland.

On the contemporary American right, the dominant approach to constitutional interpretation is known as originalism—the idea that the Constitution should, to the extent possible, be interpreted according to its original public meaning, or the sense in which the document’s framers and ratifiers understood it. Whenever there’s a lawsuit over what kinds of weapons it’s lawful to own under the Second Amendment, for instance, the question before the court is whether the weapons would reasonably fall within the definition of “arms” as the drafters of the Second Amendment understood the term. Defenders of originalism point to the increased predictability and stability that results when the Constitution is understood as possessing a relatively fixed meaning.

This stability is possible because American constitutional law works rather differently than constitutional law in other countries. In the United States, constitutional rights, once extended, are near-absolute trump cards that defeat all other government action. The archetypal example of this is the First Amendment’s free speech guarantee. Unlike virtually every other Western country, the United States lacks a hate speech law or other mechanism by which the government can suppress speech deemed offensive to public order. Don’t like the fact that Nazis are marching through your town on public streets? Tough—the First Amendment is an absolute bar to suppressing the Nazis’ speech.

This isn’t the case in much of the modern Western world. In non-American systems, constitutional cases are typically adjudicated according to a framework known as “proportionality analysis” which proceeds in four stages:

Is there a legitimate aim for the challenged measure?
Is the measure suitable to achieve the aim?
Is the measure necessary to achieve the aim?
Is the measure reasonable, considering the competing interests of the different groups at hand?

While proportionality analysis is most commonly associated with European constitutional law, its reach extends further: a few years ago, I was in a meeting with a former President of the Supreme Court of Israel, who staunchly defended the proportionality framework. It’s safe to say that this general pattern of analysis informs most of Western and Western-influenced constitutional practice.

As should be immediately obvious, the proportionality analysis is structurally unmoored from any historical referent. It is concerned solely with what strikes a jurist as appropriate at any present moment. Indeed, the questions posed by the proportionality analysis strike me as fundamentally legislative questions: whenever representatives pass laws, they must ask themselves whether their policies satisfy these same standards—legitimacy, suitability, necessity, and reasonableness. There is no clear distinction, on this approach to constitutional law, between the judiciary and the legislature—save that the latter faces more democratic accountability.

By contrast, the American tradition, with its history-bound Constitution, provides an external standard against which judges may evaluate laws. American originalism works because it has a discernible reference point—the Founding era, with what Milbank describes as its supporting “vast invisible congregation of ideas and philosophies which [judges] could call upon to make of the dead letter of the law a living system of justice.”

The fascinating question here, to my mind, is whether what Milbank longs for—a tradition-informed approach to judging that closely resembles American originalism—is even possible in the British context. The British constitution is conventionally characterized as an “unwritten” constitution “formed of Acts of Parliament, court judgments and conventions.” Like the proportionality framework that has led to the results Milbank deplores, Britain’s unwritten constitution accepts “convention”—including contemporary convention—as a source of legal authority. So what, if anything, is preventing the English common-law tradition from slipping further towards the utilitarian abyss? (Perhaps those dastardly American rebels were onto something after all…)

Apropos of nothing, I also find it interesting that the Milbanks—both father and son—were staunch opponents of Brexit. The supranationalism of the European Union, to my mind, necessarily entails a “flattening-out” of the national traditions that inform the interpretation of the common law, and that the younger Milbank treats as essential here. (At the very least, I would be interested to read an argument that a supranational governmental entity is capable of generating meaningful precedents informed by a coherent philosophy.)

In any event, the challenges of European—and British—constitutional practice are powerful testaments to the usefulness of a written constitution bound to a particular historical moment. Originalism may have its difficulties, but at least it provides a relatively greater degree of legal determinacy than its rivals—and one can make a good argument that it is a philosophy capable of transcending partisan politics. And for what it’s worth, it also strikes me that there’s a lesson here for biblical interpreters, just as there is for lawyers: whether in constitutional law or in hermeneutics, once interpreters give up the quest to ascertain a text’s genuine historic meaning, things inevitably start to go awry.

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