The barren landscape of originalism
“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”—Justice Antonin Scalia (March 11, 1936–February 12/13, 2016)
Justice Scalia was one of the leading proponents of a method of interpreting the Constitution called originalism, a form of textual exegesis that uses historical and linguistic scholarship to determine what the authors of a text meant by their words or what the first readers most probably understood the words of the text to mean. The original meaning, once determined as well as scholarship allows, is then regarded as the only meaning of the text, unaffected by the what later generations of readers of the text may believe. According to Scalia, while the patterns of thinking of society as a whole may change from one generation to the text, the meaning of the Constitution endures without change.
The method of textual interpretation called originalism is familiar to and widely practiced by scholars of ancient and medieval texts, even if that name is not commonly used by textual scholars. While I was being trained in the field of Buddhist studies, for example, students were advised to try to discover what the expressions found in the Pali Canon (the scriptures of the Theravāda school of Buddhism) probably meant to speakers of Indian languages at the time of the Buddha and to ignore what those same expressions came to mean to commentators in later centuries. The greater the temporal and geographical distance of a commentator from the time and location of the the Buddha, the more that particular commentator was to be regarded with suspicion. What this meant in practice was that my fellow students of the Pali Canon and I were unlikely to turn even to Buddhaghosa (who probably lived in the same part of India in which the Buddha lived but nearly one thousand years later), let alone to Bhikkhu Buddhadasa (a Thai monk who lived from May 27, 1906 until May 25, 1993). Despite the fact that Buddhaghosa’s commentaries on the Pali Canon came to be the interpretation that prevailed from the twelfth century C.E. onward, and that Buddhadasa was regarded as the most authoritative interpreter since Buddhaghosa, an academic scholar of the Pali Canon trained in Toronto in the 1970s would studiously avoid being influenced by them. Similarly, when reading a Sanskrit text written by Nāgārjuna in the second century C.E., a student in Toronto in the 1970s would carefully steer clear of writings by modern Tibetan scholars, such as the Dalai Lama, from schools of Buddhism based on Nāgārjuna’s teaching. In other words, in my academic training in Buddhist studies, I was taught that academic respectability diminished to the extent that one’s method of interpretation of a Buddhist text deviated from textual originalism.
If I had never approached Buddhist texts in any way than as a textual historian, I might hold originalism in high esteem. My interest in Buddhist texts, however, was never motivated principally by historical curiosity. What motivated me, probably to my detriment as a serious academic scholar, was a search for inspiration, a perhaps vain hope to find advice on how to lead a more useful life. As a seeker of inspiration, my practice was to read and reflect on whatever came into my hands and to let it have its way with me. Looking back now on my thinking of several decades ago, I realize how divided my mind was against itself. Without consciously setting out to compartmentalize my thinking, I unconsciously developed two distinct modes of reading. While in academic mode I would read a classical Buddhist text one way; while in spiritual seeker mode, I would read that same text differently—sometimes only somewhat differently and sometimes radically differently. It was rarely possible to be in both modes at once, and it wasn’t always easy to discern which mode I was in at any given time. Flitting back and forth between the two modes became a way of life and probably caused almost as much confusion in the minds of my students and fellow Buddhists as it did in me. The confusion both for me and for others was much less when I was in the midst of Quakers, for my Quaker faith and practice was almost entirely uncontaminated by a scholarly approach to either the Bible or the writings of George Fox and other Quaker authors. Looking back on it all now, I think it may have been easier for all concerned had I been just a practicing Quaker with an intellectual curiosity about the history of Buddhist thought. That, however, is not what I was.
My bewildered and bewildering life as a scholar-practitioner has no doubt had an influence on how I think about the Constitution of the United States. My interest in that document has never been that of a historical scholar. If my interest had been purely scholarly, I would probably have been inclined to be sympathetic to some form of originalism. My interest in the Constitution, however, is much more like my interest in the writings of George Fox. I read and reflect on Fox that I might be a better Quaker, and I read and reflect on the Constitution that I might be a better citizen of the particular constitutional democracy into which I happened to be born. Given that orientation to reading the Constitution, I have relatively little interest in how the people who wrote the text, and those who voted to ratify it in 1789, saw the world. Since they lived and wrote, the world has been exposed to and enriched by the thinking of Charles Darwin and the tens of thousands of scientists who take his work as a point of departure; and to astronomical research that has resulted in a view of the universe that the Founding Fathers could not even imagine; and to quantum mechanics, which has resulted in a view of the universe that no one can imagine; and to neurophysiology, which has resulted in transformations of how we view personality, agency, responsibility, and what people used to call the self, the mind or the soul; and to Hegel and Nietzsche and Kierkegaard, who have made naivety in most matters impossible; and to the Emerson, Thoreau, the Transcendentalists, the Pragmatists and numerous kinds of religious and philosophical pluralists; and to to depth psychology; and to generations of brilliant litterateurs, social commentators, political thinkers and essayists. Since the Constitution was written, the United States has expanded across a continent, been blessed with waves of immigrants from all parts of Europe, Asia and Africa and survived several devastating wars from which surely numerous important lessons have been (or should have been) learned. There is hardly any aspect of modern life that would be recognizable to the the authors of the Constitution. Why should the way we think and act in the world be recognizable to them? To expect people today to ignore all that has happened in the past two and a quarter centuries and to eschew all the wisdom gained from those happenings and to hew to the world view of the Founding Fathers is as unreasonable and impractical as it would be to expect great grandparents to continue thinking and acting as they did as toddlers.
There is no doubt in my mind that Justice Scalia was a deeply learned and highly intelligent scholar of the text of the Constitution. There is equally little doubt in my mind that an enduring or dead Constitution is no more than a historical artifact, as impractical in today’s world as a horse and buggy. What is needed is a method of interpretation of the Constitution that allows for changes in human thinking resulting from scientific discovery, developments in the humanities and social sciences and trends in the arts. The results of such interpretation would no doubt sometimes be wild and unpredictable, and occasionally discomfiting, exactly as life itself is. To be sure, not all change is for the better, but all change must be acknowledged to have taken place, for better or for worse. To ignore change is delusional. To resist it is futile. To embrace it is alone conducive to flourishing.
Written by Richard P. Hayes (Dayāmati Dharmacārin)
Wednesday, February 17, 2016 at 17:32
Posted in Social analysis
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