We the People: What the Public Thinks About Originalism

The following is a post by Center friend and supporter Don Drakeman.

As part of a lively debate about originalism and same-sex marriage (at the Volokh Conspiracy site between Orin Kerr and Ilya Somin), Larry Solum has suggested that there is “no good empirical data on public beliefs about originalism.”  I can’t add to the substantive debate, but I have some empirical data about what the public believes about originalism.  Readers can decide whether it is good or not.

In 2012, I commissioned a YOUGOV survey of 1000 Americans specifically on the topic of originalism.  Most surveys have simply asked voters to choose between the Constitution’s original meaning and a more modern, living Constitution approach. Over time, the public has generally split about 50-50 on that point, with a majority periodically flipping from  one side to the other.  In my Originalism 2012 Survey, 60% chose the understanding of the Constitution at the time it was originally written, with 40% picking “what the Constitution means in current times.”

But here’s the interesting part. I asked the “current times” respondents what the Supreme Court should do with evidence of the original meaning.”  I expected that most would say that it should be either irrelevant or, or merely historical background.  Yet, only 3% said that the Court should ignore it, 18% opted for it to be used only as historical background, and an impressive 79% said that the Supreme Court should “consider it as one of the various factors that should be considered in making the decision.”  So, all in, over 90% of Americans think that the original meaning is at least relevant to the Supreme Court’s decision, with half or more considering it determinative.

That strikes me is as a pretty powerful reason for us to think hard about what the original meaning really is. Many of the debates among originalists center on exactly where we should be looking for that meaning.  I asked the public that question. Offered a series of possible sources, a majority of the public said “yes” or “maybe” to all of these four possibilities: Dictionary definitions; how average voters at the time of ratification understood it; how hypothetical, well-informed ratifiers would have understood it; and the understanding of the framers.  When asked which of these is the most important in the event of a conflict, 66% picked “what the Constitution’s framers intended it to mean.”

Whether the public’s views are important is an interesting question for debate. (For what it’s worth, I believe that they are.) For today, however, I simply wanted to point out that we do have some empirical data, and it speaks pretty clearly.

Details of the Originalism 2012 Survey (along with why I think it is important) can be found here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448431

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Afrianty, “Women and Sharia Law in Northern Indonesia”

This March, Routledge Press will release “Women and Sharia Law in Northern Indonesia: Local Women’s NGOs and the Reform of Islamic Law in Aceh” by Dina Afrianty (Australian Catholic University).  The publisher’s description follows:

This book examines the life of women in the Indonesian province of Aceh, where Islamic law was introduced in 1999. It outlines how women have had to face the formalisation of conservative understandings of sharia law in regulations and new state institutions over the last decade or so, how they have responded to this, forming non-governmental organisations (NGOs) that have shaped local discourse on women’s rights, equality and status in Islam, and how these NGOs have strategised, demanded reform, and enabled Acehnese women to take active roles in influencing the processes of democratisation and Islamisation that are shaping the province. The book shows that although the formal introduction of Islamic law in Aceh has placed restrictions on women’s freedom, paradoxically it has not prevented them from engaging in public life. It argues that the democratisation of Indonesia, which allowed Islamisation to occur, continues to act as an important factor shaping Islamisation’s current trajectory; that the introduction of Islamic law has motivated women’s NGOs and other elements of civil society to become more involved in wider discussions about the future of sharia in Aceh; and that Indonesia’s recent decentralisation policy and growing local Islamism have enabled the emergence of different religious and local adat practices, which do not necessarily correspond to overall national trends.

Bretherton, “Resurrecting Democracy”

In December, Cambridge University Press released “Resurrecting Democracy: Faith, Citizenship, and the Politics of a Common Life” by Luke Bretherton (Duke University).  The publisher’s description follows:

Resurrecting DemocracyThrough a case study of community organizing in the global city of London and an examination of the legacy of Saul Alinsky around the world, this book develops a constructive account of the relationship between religious diversity, democratic citizenship, and economic and political accountability. Based on an in-depth, ethnographic study, Part I identifies and depicts a consociational, populist and post-secular vision of democratic citizenship by reflecting on the different strands of thought and practice that feed into and help constitute community organizing. Particular attention is given to how organizing mediates the relationship between Christianity, Islam and Judaism and those without a religious commitment in order to forge a common life. Part II then unpacks the implications of this vision for how we respond to the spheres in which citizenship is enacted, namely, civil society, the sovereign nation-state, and the globalized economy. Overall, the book outlines a way of re-imagining democracy, developing innovative public policy, and addressing poverty in the contemporary context.