There is a large literature on originalism. (I started to write "a very large literature" but then thought about the literature on Dante or baseball and decided that I should leave it at large.). I don't pretend to have read all of it or even half. The US Supreme Court has a somewhat unsettled attitude towards the doctrines, and in some states, e.g., Utah, the state Supreme Court has adopted originalism as the official theory for interpreting the state constitution. The Utah Supreme Court, at least, has not yet (if it ever will) made clear what version of originalism it has adopted. The Court still talks about original meanings without any more elaboration. Over time, I suppose, it will say a bit more. However, today that is not quite the topic. I do not think that originalism works, that it is a good theory. There are all sorts of oddities to the theory and holes to be addressed that remain mostly unmentioned or glossed over. I thought I might start with some of the things that lay at the origin of my negative views about the theories. I think Solum's account is the best, better grounded and more cogent. So assume that as the object of discussion. This paper is a good summary treatment.
The first topic is not, strictly, about the theory, or is to only indirectly. Lawyers take an oath on admission to the bar. Military officers take an oath on accepting the commission. (The President does not figure in the Oath or the Commission.). Plenty of other offices require an oath. Or, to get to the point, a very similar or the same oath. Here is a military oath: "I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.). Here is the one I took for admission to the United States District Court fort the District of Utah: "I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of the State of Utah; that I will discharge the duties of attorney and counselor at law as an officer of the courts of the State of Utah and the United States District Court of the District of Utah with honesty and fidelity; and that I will strictly observe the rules of professional conduct adopted by the United States District Court for the District of Utah." And here is what is required under California law: Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license. B&PC §6067.
We swear to support and defend the Constitution. I think that oaths, assuming they perform a function beyond rhetoric or decoration, should be such that the one making the oath (or taking the oath -- I am not sure whether the verb matters much) understands what the oath means, what it is an oath to do. I do not think that it is good enough to say that have learned doctors who can answer. The persons undertaking the oath should have a reasonably good understanding of what they are committing themselves to. Here, they should understand to some reasonable degree, what the Constitution they vow to support and defend. The Constitution is not a person, so it is not like vowing to support the king. Can't just point to someone and say 'that is the one I support and defend'. (It may that this sort of view of oaths is wrong.). I think that implies that the meaning of the Constitution is generally accessible to all those who take the oath. That is, the document embodies the principles and rules that the person vows to support. To put the point another way, the oath does not involve a commitment to the unknown, but a commitment to the person can read and understand. No special training in history or in the morass of legal history required. One essential function of the Constitution (at least of the US Constitution) is to set out principles and rules of political community. I do not think that function can be fulfilled by an originalist account. Originalism is too far inside the pale of academy and courts.
To be sure, this is not an argument that I expect would move many people. I am not even entirely sure that it is an argument. But it is a reason.
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