While people have been distracted by the potential disembowelment of US health insurance, the United States Senate has been holding hearings to consider the nomination of Neil Gorsuch to the Supreme Court. It now seems likely that Gorsuch will be confirmed.
Gorsuch adheres to the doctrine of judicial originalism, an academic artifact that means just what it implies: if the words in the US Constitution are unclear, judges must ascertain the intent of the Constitution’s authors at the time of ratitication in June 1788.
Legal originalism is preposterous for its assertion that it handles ambiguity in a rational fashion. Information analysts confront the same problem of ambiguity as legal originalists, but respond quite differently to that challenge.
When I work with people to interpret information, we try to avoid over-interpretation – going beyond what the information really tells us, and adding in our own beliefs. Information rarely tells us all that we want to know; calling out ambiguity is part of analysis. Still, even the best analysts can fall prey to over-interpretation, in part because the more we know about a subject, the harder it is to set aside what we know. Expertise brings knowledge, but it also brings bias.
On the other hand, legal originalism actually encourages over-interpretation. Originalism is over-interpretation disguised as historical fact-finding, fortified by the prejudices of modern conservative elites.
Why over-interpretation? First, the Constitution is ambiguous by design. It established a governmental framework that could be understood by ordinary citizens, not just an elite class of word-parsing analysts, for what the Constitution’s authors feared mostly was the re-concentration of power. The framers also needed ratification from a diverse group of states, and for that purpose a little ambiguity could go a long way. So, the authors wrote in plain English and avoided detail, knowing interpretation and practice would evolve and be resolved over time. While the volubility of legal writing has greatly increased since 1788, there is little doubt that if the Constitution’s framers had wanted to make their document longer, they could have done so. The United States Constitution clocks in at a brisk 4400 words, or about 18 pages of text. I’ve signed consulting contracts longer than that.
Originalism is also over-interpretation because it is difficult, and arrogant, to presume that we can know what a person 230 years ago really intended. Gauging the true intent of another person we know well is hard enough. Conceptual time-travel to an earlier century only compounds that difficulty. Even mental time-travel over a couple of decades can create wonderment – 30 years ago people traveled to libraries to puruse reference works, and Star Wars special effects were truly eye-opening. For us to relate to a time when someone over 60 was quite old, or when leading liberal lights were slave-holders and (by modern lights) bigots is an extraordinary conceptual burden. We’re inevitably creatures of our time, and cannot simply return to the mental framework of an 18th century person. Nonetheless, that conceptual time travel is precisely what originalism proposes and encourages. At best we can suppose original intent, but we can never prove it.
Like any analyst engaged in over-interpretation, an originalist must inevitably substitute his or her own modern biases to augment the limited information available. Originalism doesn’t avoid modern biases, it simply projects those biases onto alleged historical fact. As original intent is largely beyond our grasp, the only “original” in originalism is the creative output of its modern adherents.
When I work with information analysts our goal is to assesss the challenge of over-interpretation and avoid it as best we can. On the other hand, legal originalists have implicitly embraced over-interpretation as a valid decision-making process. It’s one thing to over-think an interpretation, and another to hold up the concept of over-thinking as a rational approach to decision making. Senator Dianne Feinstein and others are correct – it is “disturbing” that otherwise intelligent legal minds would embrace a decision-making philosophy so certain to fail.