On A Difficulty In The Practice of Originalism

I have long believed that there is a difficulty presented by original meaning-style interpretation. As a software engineer, my first instinct is to use pointer dereferencing as an analogy, but I am not sure that will be helpful to my readers (if there are any of you left) so let me explain with an example.

Let us consider the word “cruel” in the 8th amendment. The word “cruel” is of course itself a reference to a concept. Presumably, the word “cruel” at the time of the drafting referred to a concept. Just for the sake of argument let us say that this concept was “the purposeless infliction of suffering”. These concepts can themselves refer to other concepts. Perhaps the only suffering that is meant is physical suffering. Finally, this concept would have had applications. So for instance, the use of the breaking wheel would have been cruel, but execution through hanging would have not.

So as you can see, the original meaning isn’t a single item. It is a chain that originates with a word and leads all the way to classification decisions. This is important because judges are responsible for making classification decisions: Is the punishment I am looking at cruel or not?

And this is where the problem comes in: where in the chain do we switch from looking at the original meaning to looking at current facts. For instance, it may be that some day, the word “cruel” will come to mean “unpleasant to those who administer the punishment”. It could be that our understanding of “suffering” changes and so what was once physical suffering now encompasses psychological suffering too. Finally, we could learn that certain punishments impose suffering which we did not know about.

Breaking the chain at those different points will change the outcome of a case. And the Constitution is replete with opportunities for this to come up. Does “due process” mean trials must be fair and so we must enforce current norms of fairness? Or does it mean we must enforce the norms which were seen as fair at the time of ratification? Or does it mean we must use our modern understanding of original norms of fairness? Does “equal protection” mean the law cannot make illegitimate distinctions among people and therefore same-sex marriages must be allowed to happen? Or does it mean the law cannot make distinctions among people which would have been seen as illegitimate at the time of ratification?

I am not sure how this conundrum can be resolved.

PS: If pointers do speak to you, think of it this way: You have a word which is a pointer to a concept which is a pointer to a decision function. So which pointers do you freeze in order to get original intent?

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