Smith on “Decisional Originalism”

You should take a look at Steve Smith’s superb piece criticizing original meaning originalism and proposing something that he calls decisional originalism. More and more, I am coming to believe that original expected applications originalism has a lot more going for it than is commonly thought. Opponents as well as advocates (in fact, especially advocates) of original meaning originalism don’t have much time for it. But Steve is on to something important in this short reflection. Note, also, the relevance of the method of common law reasoning for constitutional interpretation in Steve’s presentation of decisional originalism, something that I also agree is regrettably sidelined today:

If original meaning does not avoid the authority and rationality objections that gave rise to originalism, is there some criterion that would better serve the originalists’ purposes?

Maybe. Or at least the foregoing discussion has already suggested a possibility. Constitutional interpretation might attempt to ascertain and follow the original constitutional decision. After all, authority exerts itself, and rationality manifests itself, in decisions. To be sure, once made, those decisions are expressed in words—words that have meanings. We necessarily use the words (among other things, such as the historical context) to try to understand and reconstruct the decisions. Still, if our goal is to respect the constitutional assignment of authority and to facilitate rational decision-making, then we should not care about either the words or their meanings for their own sakes. We pay attention to them, rather, for the purpose of ascertaining and following the enactors’ decisions.

This distinction between meanings and decisions is subtle, but it is not wholly unfamiliar. Back when lawyers and scholars took common law reasoning more seriously than perhaps they do now, even a legal realist like Herman Oliphant could intelligibly contend that what binds in a legal precedent is what the court decided, not what the court said. Stare decisis, not stare dictis. My suggestion is that a similar distinction might be employed in the context of constitutional interpretation. In common law reasoning, to be sure, the distinction may seem more manifest because there is no canonical statement of the decision, anyway. With constitutional provisions (and statutes) there is a canonical wording; but that fact, I think, need not dissolve the distinction between decision, on the one hand, and textual meaning, on the other.

Just how an approach focusing on the original decision would differ from one focusing on original meaning is a complicated question, about which I cannot say much in a short essay….

For now, though, two observations may be suggestive.

There should be no great difficulty in concluding that the Fourth Amendment “search and seizure” provision applies to wiretaps. That sort of invasion of privacy might well be seen as covered by the enactors’ decision even though telephones did not exist in 1789. We might imagine a conversation in which we explain to the Framers: “In the future, it will be possible for officials to invade people’s privacy electronically without physically entering their dwellings. Would your decision apply to that sort of thing?” And we might plausibly suppose that they would reply, “Of course.”

Suppose, however, that someone proposes that a constitutional provision be interpreted to do something we are reasonably confident the enactors did not contemplate and very likely would not have desired. Someone proposes, for example, that the due process clause be used to invalidate restrictions on abortion. Or that the equal protection clause be used to invalidate traditional marriage laws. And we are confident, perhaps, that the enactors of those provisions would have been startled to learn of these proposals, and would have protested, “Are you serious? Our decision had nothing to do with that sort of thing.” If such “interpretations” had been foreseen, the provisions almost surely would have been reworded to avoid the unwanted results, or would not have been enacted at all.

Sarkissian, “The Varieties of Religious Repression”

This February, Oxford University Press will release “The Varieties of Religious Repression: Why Governments Restrict Religion” by Ani Sarkissian (Michigan State University).  The publisher’s description follows:

The Varieties of Religious RepressionReligious repression–the non-violent suppression of civil and political rights–is a growing and global phenomenon. Though most often practiced in authoritarian countries, levels of religious repression nevertheless vary across a range of non-democratic regimes, including illiberal democracies and competitive authoritarian states.

In The Varieties of Religious Repression, Ani Sarkissian argues that seemingly benign regulations and restrictions on religion are tools that non-democratic leaders use to repress independent civic activity, effectively maintaining their hold on power. Sarkissian examines the interaction of political competition and the structure of religious divisions in society, presenting a theory of why religious repression varies across non-democratic regimes. She also offers a new way of understanding the commonalties and differences of non-democratic regimes by focusing on the targets of religious repression.

Drawing on quantitative data from more than one hundred authoritarian states, as well as case studies of sixteen countries from around the world, Sarkissian explores the varieties of repression that states impose on religious expression, association, and political activities, describing the obstacles these actions present for democratization, pluralism, and the development of an independent civil society.

Little, “Essays on Religion and Human Rights”

This February, Cambridge University Press will release “Essays on Religion and Human Rights: Ground to Stand On” by David Little (Georgetown University).  The publisher’s description follows:

Religion and Human RightsThis collection of seminal essays by David Little addresses the subject of human rights in relation to the historical settings in which its language was drafted and adopted. Featuring five original essays, Little articulates his long-standing view that fascist practices before and during World War II vivified the wrongfulness of deliberately inflicting severe pain, injury, and destruction for self-serving purposes and that the human rights corpus, developed in response, was designed to outlaw all practices of arbitrary force. Drawing on the natural rights tradition, the book contends that while there must be an accountable human rights standard, it should nevertheless guarantee wide latitude for the expression and practice of religious and other conscientious beliefs, consistent with outlawing arbitrary force. This book further details the theoretical grounds of the relationship between religion and human rights, and concludes with essays on U.S. policy and the restraint of force in regard to terrorism and to cases like Vietnam, Afghanistan, and Pakistan. With a foreword by John Kelsey, this book stands as a capstone of the work of this influential writer on religion, philosophy, and law.