The departure from ideals has very substantial costs that create a presumption against it in the absence of compelling evidence of its necessity.
In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate. In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary.
Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings. But he still believes originalists are likely to be upset:
Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity. The idea that Madison’s journal is unreliable can threaten all four. It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority. It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman. It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be. And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.
Wow. I can’t speak for other originalists, but I disagree with most of this. Consider his claim of the allegedly four important appeals of originalism. As a group, those are not important appeals to me.
Let’s start with (2) basking in the glory of of the Founders and (4) inhabiting the heroic world of characters central to American national identity. I don’t share these appeals. In fact, in my work with John McGinnis, we have disclaimed these appeals in two significant ways. First, we have argued that the goodness of the Constitution is not due to the influence of a few great men, but instead because of the supermajoritarian enactment process. If one wanted to point towards other influences, it would be the enlightment and proto classical liberal views that prevailed in American, not the glory of the Founders. Second, speaking of the Founders, we have argued that many of them were slave owners and that slavery was a central defect of the Founding. In fact, it was only with Reconstruction that the constitutional document (if not the nation) corrected this defect.
Now consider (3), the promise we can go to the popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars. Nope, that one does not drive me either. In fact, McGinnis and I argue that the Constitution was a legal document and therefore one needs to understand the professional language of the law to discern it.
Finally, I should note that reason (1), stability, is something that appeals to me. But it is not of overriding importance. What is more, I find Primus’s claim that the inaccuracy of Madison’s Notes destabilizes the text at best underdeveloped. In what important way does it destabilize the text, especially for someone who adheres to an original public meaning approach?