By Aditi, WBNUJS
Editor’s Note: Originalist Theory of Constitutional Interpretation is one of the oldest and most basic theories of Interpretation that advocates the interpretation of constitutional text in accordance with the meaning and intention that was accorded to it during its formulation.Even to this day, originalism finds a favourable environment, or even fascination for itself in the United States. The situation there is starkly contrasted by that of India where the originalist theory has been a subject of repeated criticism and seems to have lost its relevance. The present paper tries to map these contrasting differences while weighing the argument of authority as against relevance with regard to the originalist theory of constitutional interpretation.
Originalist Theory of Constitutional Interpretation is one of the oldest and most basic theories of Interpretation that advocates the interpretation of constitutional text in accordance with the meaning and intention that was accorded to it during its formulation.[i] It envisions the constitution as a permanent and not evolving document. The legitimacy of this theory is derived from the argument that original means of interpretation ensures uniformity, coherence and connects the application of the constitutional rules to their authority.[ii] However, with the evolution of the society with time, adherence to originalist approaches have been known to slow down the corresponding evolution of law so as to reflect the ever changing social contexts. As such, the original theory has been constantly losing its relevance as against the theory of living constitutionalism. However, to this day, originalism finds a favourable environment, or even fascination[iii] for itself in the United States. The situation there is starkly contrasted by that of India where the originalist theory has been a subject of repeated criticism and seems to have lost its relevance. The present paper tries to map these contrasting differences while weighing the argument of Authority as against relevance with regard to the originalist theory of constitutional interpretation.
ORIGINALIST THEORY OF CONSTITUTIONAL INTERPRETATION: EVOLUTION
Although Originalism contrasts the concept of change in many ways[iv], the theory itself has seen a lot of transformation over the past few decades. Initially, the originalists sought to interpret the Constitution by determining the subjective intentions and expectations of its drafters.[v] The theory of Original Intent found prominence from the 1960s to the mid-1980s; however, it soon lost its sheen due to several reasons.It was soon recognized that the application of the original intent standard was problematic in case of the broad general terms used by the framers; because it was impossible to assume that they would have anticipated all the possible situations which could warrant the application of a particular constitutional provision.[vi]
Further, it was felt that ascertaining a single representative intent of the framers on a particular constitutional provision would be a difficult task. The drafting of a constitution generally witnesses a lot of political compromise among a large number of individuals. As such, summing up of their different intentions posed a methodological issue. Secondly, even when the intent of the framers was determined somehow, it was often found to be ambiguous in nature. Moreover, the study of historical evidence pointed out that even the framers did not intend their intent to form a means of constitutional interpretation, thus binding the future generations. Also, the critics perceived the undesirable consequences which may result from “being ruled by the dead hand of the past” in a modern, evolving society.
As the above criticisms of the original intent approach started to gain momentum, the focus of the originalists gradually shifted to the original public meaning approach as a means of constitutional interpretation. The original public meaning approach interpret the text of the Constitution according to how the words of the document would have been understood by a competent and reasonable speaker of the language in the historical period during which the Constitution was enacted.[vii] As such it is based on the objective the focal point of the meaning ascertained by a reasonable observer in contrast to the subjective original intentions or expectations of the founders. Many scholars have refereed to this approach as “Originalism 2.0” or “New Originalism”.
Evolution to this new dimension of Originalism has been beneficial in many ways, as it has been instrumental in tackling with the problem of subjectivity, among others, that plagued the original intention doctrine. However, it also blurs the distinction between Originalism and Living Constitutionalism. As the new originalism no longer derives interpretation from the framers of the constitution, it detaches it from the legitimizing authority of the act of constitution making.[viii] Secondly, the focal point of this theory, the reasonable man, may make way for multiple plausible interpretations of constitutional provisions. This can be inferred from the fact that the literature of public meaning originalism provides for a range of descriptions of the hypothetical reasonable man.[ix] Further, often the social and linguistic context of the society is required to be considered for constitutional interpretation. As such, the modern interpreter is expected to attempt to read the provisions not only considering their original social and linguistic context but in its modern context or in a way that creates a compatible middle path between the two.[x] The “glaring defect of Living Constitutionalism,” Justice Scalia contends, “is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution” of constitutional meaning. However, witnessing the recent developments, the argument of coherence and uniformity does not strictly holds in favour of Originalism. Because of these effects of the new approach, the original meaning doctrine has been referred as “originalism for non-originalists”.[xi]
More recent modifications to Originalism have further negatived the practical and theoretical distinctions between originalism and non-originalism. It has also been argued that several prominent originalists engage in constitutional construction, i.e. modification of legal rules for application in modern context even when they are not mandated by original understanding.[xii] The development of the concept of Living Originalism, which argues originalism and non-originalism as complementary and not opposing approaches, is another advancement in this regard which may have an effect of cementing differences between originalists and non originalists.
ORIGINALISM IN UNITED STATES AND INDIA: DIVERGING WAYS
Originalism in the United States has come a long way since its inception. However, while the relevance of this theory has eroded in most parts of the world, United States is one of the few nations which still show fascination towards its postulates. US Supreme Court Justice Antonin Scalia maintains that “originalism, while not being perfect, still beats all other alternative methods of constitutional interpretation.” He does not deny the fact that the constitution now finds application in new phenomena and contexts, but he opines that the historical inquiry of its original meaning is still essential.[xiii]
As for the Indian point of view, the picture is almost inverted as compared to the United States. At present the balance is tilted heavily towards the living constitution approach. However, this was not always the case. In Indian Constitutional history, glimpses of Originalism were first noticed in the case of AK Gopalan v. State of Madras. Here, the idea of interpretation of the provisions of the Constitution “in the spirit of the Constitution” was rejected. It was felt that an extensive constitutional charter such as ours lends itself to the application of strict and not liberal methods of interpretation. Here, an influence of the US tendency of favouring Originalism was felt, especially in the judgment of Justice Mukherjee.[xiv]
In earlier decisions of the Supreme Court, a restricted interpretation of the Constitution was preferred, and backing for the same was sought from the Debates in the Constituent Assembly. But in the later decisions, it was held that the original intention doctrine could only be used for giving a meaning to the provisions in the present context of application. Debates and speeches of the constituent assembly were held to be non-conclusive and hence not binding on the courts. Gradually, recourse to them was limited as an aid in ascertaining the original intention.As the principles of constitutional interpretation further evolved, the Indian picture moved farther away from the American fascination of Originalism. Indian Constitution was enacted in 1950 and hence was a fairly recent as compared to its American counterpart. Moreover, it aimed at answering innumerable concerns of a diverse country facing grave cultural and social crisis. It had to cater to a fairly modern world with changes coming its way a lot more frequently than the initial years of working of the American constitution.
The initial leaning towards the idea can be explained by the cult-of-personality hypothesis.[xv] It has been argued that originalism blossoms in a nation when a political leader associated with the creation or revision of the nation’s Constitution develops a cult of personality. This trait was shared by both India as well as the United States. However, due to the different set of circumstances faced by working of the Indian Constitution, requiring a fast pace of evolution and adaptation, the principles of interpretation in case of India diverged towards the living constitutionalism theory, where the purpose of the constitution was viewed as facilitating the outline principles rather than ‘to engrave the details’.[xvi]
However, the Indian courts have been cautious enough to retain the basic concepts of originalism. Justice Scalia argues that the purpose of the constitution is toprevent the law from reflecting certain changes in original values, and originalism is the only way to ensure it. The Basic Structure doctrine that has developed in India, can be said to have taken inspiration from this idea. The Basic Structure doctrine empowers the courts to prevent the amendment of basic original values of the constitution.
The fast changing world, together with its social and cultural framework, which was instrumental in establishing the living constitution doctrine in the Indian Constitutional jurisprudence, is now surfacing as a global reality. The amendment procedures are generally proving to be not flexible enough to accommodate the changing legal concerns: be it on a social dimension or a technological one, to name a few. As such, the doctrine of Originalism in its strict sense has been facing rejection on a global basis. However, the basic principles of Originalism continue to thrive in certain countries like United States and Turkey.[xvii]
Further, with the surfacing of new theories proposing a complementary model of the two contrasting doctrines, all the straight jacket distinctions and bipolar viewpoints may no longer hold good. It has been argued that different modes of constitutional interpretation may prove efficient in catering to different provisions of the constitution. As such, adopting a single mode of constitutional analysis may not do justice to the constitutional text. Rather, it has been argued that formulation of a unified doctrine of interpretation would undermine various external considerations such a social framework, political pressures, cultural equations etc. that might be vital to a more efficient application of the constitutional provisions[xviii]
Interpretation cannot be termed as a rigid mechanical process, and as such is inevitably prone to constant evolution. This is the reason why the once unparalleled authority of Originalism does not hold ground today. In the circumstances that stand today, Originalism cannot be said to eliminate controversy in resolving hard questions of constitutional meaning. It cannot be held uniquely capable of preventing judicial abuse or of hemming in judicial discretion.[xix] However, the role of originalism in the initial development of the constitutional interpretation and its significance in opening doors towards new forms of evidence for understanding and interpreting the constitutional meaning cannot be negated. It should be seen as the initial path which eventually led to the broader and more dynamic theories of constitutional interpretation. As such, it becomes vital in the present scenario to view the two major schools of constitutional interpretation and view them as components of a larger system aiming at a more efficient application of the constitutional provisions.
Evolution of modes of constitutional interpretation has been on quite a long journey in United States and while the application of broader principles of interpretation of the constitution has been gaining acceptance in United States, the primacy of originalism still goes on. While developments on the Indian scene have followed a similar pattern, though on a shorter time span, the eventual status quo leans towards the liberal side. While the proponents of originalism continue to uphold its significance to maintain the original values and authority of the constitution, it should be kept in mind that no constitution can maintain practical force if its content is sufficiently incompatible with important social needs and values.[xx] As such, effort should be made to reduce the element of rigidity in the system of constitutional interpretation and incorporate the practicable aspects of from all the theories.
Further, recent addition of new chapters in this area, which have resulted in blurring lines between the earlier straight jacketed classification of Originalism and Non-originalism have opened doors to new avenues. As such, courts should venture beyond settling on a single answer to the constitutional concerns and consider various social and contextual considerations, so as to ensure a better exploitation of the constitutional principles.
Edited by Hariharan Kumar
[i]Ozan O. Varol, The Origins and Limits of Originalism: A Comparative Study, Vanderbilt Journal of Transnational Law, Vol 44:1239, available at http://www.vanderbilt.edu/jotl/manage/wp-content/uploads/Varol-pdf.pdf (last viewed 5th November 2013)
[ii] John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory Of Interpretation And The Case Against Construction, Northwestern University Law Review 103:751 (2009) available at http://www.law.northwestern.edu/LAWREVIEW/v103/n2/751/LR103n2McGinnis&Rappaport_OriginalMethods.pdf
[iii] Supra note 1
[iv] Antonin Scalia, A Matter Of Interpretation: Federal Courts And The Law 40 (Amy Gutmann ed., 1997).
[v] Keith E. Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599 (2004).
[vi] Kenneth R. Thomas, Selected Theories of Constitutional Interpretation, available at http://www.fas.org/sgp/crs/misc/R41637.pdf (last viewed 5th November 2013)
[vii] Richard S. Kay, Original Intention And Public Meaning In Constitutional Interpretation, Northwestern University Law Review 103:703 (2009) available at http://www.law.northwestern.edu/lawreview/v103/n2/703/lr103n2kay.pdf
[x] Justice D.M. Dharmadhikari, Principle Of Constitutional Interpretation: Some Reflections, (2004) 4 SCC (Jour) 1,available at http://www.ebc-india.com/lawyer/articles/2004v4a1.htm
[xi] Keith Whittington, Constitutional Construction: Divided Powers And Constitutional Meaning, 39 (1999)
[xii] Peter J. Smith, How Different Are Originalism and Non Originalism?, 62 HASTINGS L.J. 707 (2011)
[xiii] University of Virginia, School of Law, Scalia Defends Originalism as Best Methodology for Judging Law, April 20, 2010, available at www.law.virginia.edu/html/news/2010_spr/scalia.htm
[xiv] Charles Henry Alexandrowicz-Alexander, The American Journal of Comparative Law, Vol. 5, No. 1 (Winter, 1956) 98, 105, available online at http://www.jstor.org/stable/838141(last viewed 6th November 2013)
[xv] Supra note 1
[xvi]In re: Special Reference No. 1 of 2002, (2002) 8 SCC 237 at 319 c.f. R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324
[xvii] Supra note 1
[xviii] Supra note 6
[xix]Supra note 5
[xx] Supra note 7