Originalism: A review

For more than a decade now this column has been advocating for the recognition of “originalism” in our legal education and legal system. It is gratifying to see that such efforts are bearing fruit.

On second thought, “recognition” may be a tad inaccurate. “Re-recognition” is perhaps the better term.

For originalism/textualism was the norm, particularly for the first 150 or so years of the US Constitutional experience (from which the Philippines’ own system is derived). The “living constitution” is a 20^th century creation by progressives to ram through their preferred policy agendas.

And it’s a testament to the miseducation of law students, particularly from the so-called prestigious law schools, that many consider today the “living constitution” as the exclusive paragon, the only manner of constitutional interpretation. Which is simply not true.

Our own Supreme Court has not actually been silent regarding textualism and originalism: “The words used in the Constitution must be given their ordinary meaning except where technical terms are employed. As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have a common use.”

Furthermore, if “the plain meaning of the word is not found to be clear, resort to other aids is available.” But “while it is permissible to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear.” Hence, “the proper interpretation, therefore, depends more on how it was understood by the people adopting it.” (Justice Antonio Nachura, Outline Reviewer in Political Law; citing Francisco, GR 160261; and Civil Liberties Union, 194 SCRA 317).

Progressives tend to adhere to the “living constitution” for tactical reasons: what they cannot push democratically in the legislature they try doing so surreptitiously through the judiciary, unhampered by what the Constitution actually says, as the words therein (they argue) should be interpreted as the times require.

Thus, for social issues like entitlement welfare, gay marriage, divorce, sexual orientation/gender identity rights, abortion, contraceptives — all of which are not mentioned either in the US or Philippine constitutions (except for the latter, which prohibits abortions), a democratically elected legislature has the discretion to reject such measures. By interpreting the Constitution in a manner unanchored on what’s actually written there, progressives try to get around the legislature by resorting to judicial legislation.

The late great US Supreme Court justice Antonin Scalia fought back against this nonsense. Blessed with clarity of intellect, eloquence, and a pen of magnificent wit, Scalia reintroduced constitutional interpretation of original intent and meaning of text which he called “originalism.”

“Originalism,” simply put, seeks to interpret a constitution in accordance with the understanding of those who drafted it or that of reasonable persons alive at the time of the constitution’s adoption as to the text’s ordinary meaning.

The difference, by the way, between textualism and originalism, is more apparent than real. In practice, textualism is used when referring to interpretation of legislative statutes, originalism when interpreting a constitution.

Speaking before the University of Virginia, Scalia said he adheres to originalism as “it beats the other alternatives, and that, believe me, is not difficult.”

One of those alternatives is the aforementioned “living constitution” theory. Of that, Scalia was scathing: “The Constitution is not an organism; it’s a legal text, for Pete’s sake!”

The problem with the “living constitution” theory is that it upends the crucial tripartite, checks and balances, government of limited powers structure. It effectively allows unelected judges to legislate from the bench and impose their will beyond the Constitution, effectively establishing a “judicial oligarchy.”

Thus, as Scalia explains in an NPR interview, the “living constitution” theory “places no restraints on judges,” and that if the Constitution means “whatever the people would want it to say, you’ve eliminated the whole purpose of a constitution.”

One calumny placed on “originalism” is that it is merely a cover to advance conservative policies. Again, another lie. The point is to let the words of the Constitution, as understood and adopted by the Filipino People (the actual authors of the Constitution) to be upheld. Should the Constitution be silent, then it is not up to the unelected judges but rather the People’s duly elected representatives (members of Congress) to legislate on the matter.

And if the Constitution is in need of changing, then again that is not the job of the unelected judges: that’s up for the Filipino people to do by amending or changing the Constitution.

Originalism is essentially allowing democratic principles and the rule of law to work, where the voice of the People prevails rather than the mere interests of a few.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

[email protected]

Twitter @jemygatdula