SUNY Buffalo Law Links - April 2016

'Originalism 101' lays out a hotly debated philosophy

Professor Chiesa, John Burns ‘17, Professor Lee Strang (University of Toledo Law School), Diane Orosz ‘18, Jason Michael Gunning ‘18, and Kelsey Hanson ‘17

This year or next, the U.S. Senate will hold hearings to confirm the next nominee for the nation’s highest court. Sure to be raised is the judicial philosophy called originalism – the idea that the Constitution should be understood in light of the original meaning of its authors.

It’s a hot-button issue in jurisprudence, and a March 9 forum brought a noted scholar of the philosophy to SUNY Buffalo Law School. The address by Professor Lee Strang, of the University of Toledo College of Law, was sponsored by the student-run Federalist Society. Professor Luis E. Chiesa, who serves at SUNY Buffalo Law’s vice dean for academic affairs, provided commentary.

In a presentation called “Originalism 101,” Strang gave a history of the philosophy, addressed its justifications and criticisms, and put forth his own theory of why originalism is the best approach to Constitutional interpretation.

Originalism, he said, “is the idea that the publicly understood meaning of the Constitution’s text when it was ratified is the historical meaning.” For example, looking at the meaning of “religion” as it appears in the Constitution, such as in the First Amendment protection for the free expression of religion, scholars have looked at the debates over framing and ratifying the document, the debates at state ratifying conventions, and the concept of religion in the broader society. His own research, Strang said, showed that the 1787 understanding of religion included belief in a deity, duties in this life, and a future state of reward or punishment – an understanding that he said should inform Constitutional interpretation.

Advocates have argued that originalism is the best interpretive method because it leads to the fullest exercise of democracy, produces the best consequences for Americans, and hews to the natural-rights philosophy of the Founders. Strang’s own argument is that “originalism is the best interpretative methodology because it best facilitates human flourishing,” which he defined as “when humans live full, happy lives. The law should encourage human flourishing, because a society is better when it helps its members flourish.”

The Constitution, he said, is America’s solution to fundamental “coordination problems” – obstacles to achieving the social cooperation that’s necessary for individuals to flourish, such as a general agreement that one should obey the rules of the road when driving.

“How many branches of government should we have? What are Congress’ powers? How long should the terms of office be? The decisions that are reflected in the Constitution are the result of prudential judgment, and they are social-ordering even today,” Strang said.

In his response, Chiesa gave his opinion that “originalism is helpful in some contexts and unhelpful in others. Sometimes originalism gives clarity in cases where clarity is needed.” For example, he said, a modern understanding of “militia” – a word in the dependent clause on which so much of the Second Amendment hangs – would be that a militia is an organized military group. “But at the time of the framing, it meant a pool of able-bodied men who could bear arms.” That would indicate an interpretation in favor of an individual right to bear arms.

But, Chiesa said, “there’s a distinction between ambiguity and vagueness.” The word “cool,” for example, is ambiguous – it can mean hip or chilly. But it’s also vague: whether it’s a cool afternoon depends on your frame of reference. In his native Puerto Rico, he said, 70 degrees is cool; in Buffalo, that’s a warm summer day.

“My contention,” Chiesa said, “is that originalism is essential for resolving ambiguity. In that context it’s incredibly helpful. I think it’s not particularly helpful with vagueness. And my contention is that many of the cases we care about are about constitutional vagueness and that originalism is unhelpful in that context.”