A Matter of Originalism: Part 2
Last month, I pointed out an interesting aspect of Judge (and soon to be Justice) Sotomayor’s defense to her statement that she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” She defended this statement by insisting that her words should not be interpreted literally, but should instead be understood to communicate what she intended communicate (which, of course, is not what the words actually communicated). She said:
If you listen to my words, it would have the same suggestion: that only Latinos would come to wiser decisions, but that wouldn’t make sense in the context of my speech either, because I pointed out in the speech that eight—nine—white men had decided Brown v. Board of Education. And, I noted in a separate paragraph of the speech that no one person speaks in the voice of any group. So, my rhetorical flourish, just like hers [Justice O’Conner’s], can’t be read literally. It had a different meaning in the context of the entire speech.
Judge Sotomayor offered this explanation with such regularity and apparent sincerity that one would actually be led to believe that words can only mean what their author intended them to mean. A novel concept, indeed!
It seems that Originalism has found a defense from another unlikely advocate: the Obama administration. The Obama administration has gone on offense after a YouTube compilation video caught fire when Matt Drudge linked to it on his site. Among many clips of Obama speaking on different occasions was one in which he explained that he was a “proponent of a single-payer, universal health care plan.” The title of the clip is, “SHOCK UNCOVERED: Obama IN HIS OWN WORDS saying His Health Care Plan will ELIMINATE private insurance.”
Well, the White House is firing back via a response from former ABC news correspondent Linda Douglass. In it, she criticizes the compilation video on very interesting grounds. Countering the suggestion that President Obama’s health care plan will eliminate private insurance, Douglass says:
Well, nothing could be farther from the truth. You know, the people who always try to scare people whenever you try to bring them health insurance reform are at it again. And they’re taking sentences and phrases out of context, and cobbling them together to leave a very false impression.
The truth is that the President has been talking to the American people a lot about health insurance reform, and what is at stake for them. So, what happens is that, because he is talking to the American people so much, there are people out there with a computer and a lot of free time and they take a phrase here and there—they simply cherry pick and put it together—and make it sound like he said something that he didn’t really say.
Let us assume, for the moment, that Linda Douglass is correct. The gist of Douglass’ argument is that President Obama has never said anything that would indicate that he wants to eliminate private insurance. The video appears to show him in his own words, but what we really see is a bunch of clever edits of multiple clips spliced together so it appears that the President has said something that he has never said. We will therefore stipulate that the President has never publicly stated that he wants to eliminate private health insurance.
But for our purposes, let us assume even more in order to make the President’s argument as compelling as possible. That is, we shall not only assume that President Obama has never publicly stated that he wants to be rid of private health insurance, but we will go further and assume that President Obama genuinely does not want to eliminate private insurance. We will, of course, have to ignore the uncut video of him saying, with his own words, that he is a “proponent of a single-payer, universal health care plan.” Yes, friends, what I am asking you to do is, for a brief moment, behave as the left tends to behave, and ignore plain, dispositive facts. With these assumptions in place, I want to examine what Douglass’ (and the White House’s) objection actually is.
The objection is that, despite a video that seemingly reveals otherwise, it is not true that President Obama wants to eliminate private health insurance. His words have been taken out of context, moved around, and spliced together, making it appear that he said something that he really did not say. Is this not an objection grounded in Originalism? I think it certainly is. And I think the following assumptions are essential to Douglass’ objection:
- The President’s words have a fixed meaning. If this were not so, then it would make no sense to say that it is untrue that the President’s words mean that he wants to eliminate private health insurance.
- The fixed meaning of the President’s words is not set by those listening to/reading his words. If this were not so, then it would make no sense to object to the video editor’s particular interpretation of the President’s words.
- The fixed meaning of the President’s words, whatever it be, is accessible to the public at large. If this were not so, then it would make no sense to suggest that someone is deliberately misconstruing the President’s words.
- The President’s interpretation of his own words is authoritative. If this were not so, then it would make no sense to suggest that the President’s interpretation of his own words is true, while the interpretation made by the person who created the video is false.
- The President’s intended meaning is the only legitimate meaning of the words he speaks/writes. If this were not so, it would make no sense to criticize someone for taking his statements out of context in order to splice them together in a way that leaves a “very false impression.”
If these assumptions are not true, then Douglass’ objection falls flat. It is common to hear the left argue that the words in the Constitution have no fixed meaning. “The Constitution,” we are often told, “is a living, breathing document, the meaning of which must change to adapt with the times.” An important thing to note is that the change advocated by most proponents of this argument is not achieved by amending the Constitution, a process that adds words to the document to update its meaning. Rather, the change is achieved by reinterpreting the words that are already there. Changing the Constitution by this method runs contrary the the five assumptions above. Thus, if the previous assumptions are true, then there is a glaring inconsistency between the standard by which the Obama administration wants us to understand the President’s words, and the standard by which that same administration wants us to understand the words of our Framers.
A question that is now prominent on my mind is this: if cutting up various words of the President and splicing them back together results in an illegitimate interpretation of his words, then why does it not follow that cutting up various Amendments in the Constitution and splicing them back together similarly results in an illegitimate interpretation of the Constitution? This is, of course, what happened in Griswold vs. Connecticut, the decision that gave us a sweeping, undefined Constitutional right of privacy–a right that we have since learned is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” (Roe v. Wade). The President insists that we interpret his words according to their original meaning. Is it really too much, then, to insist that the President afford our Framers the same courtesy?
(Cross-posted from Matters of Truth)
I think the weakness in this analysis, and of course in the White House’s and Sotomayor’s spin departments, is that it relies upon original-intent originalism, not original-meaning originalism. Original intent interpretations get you bizarre results like Church of the Holy Trinity. The problem with Sotomayor’s and Obama’s statements (and Griswold et al.) is that words have objective, demonstrable meanings at the time they are used. Those meanings don’t depend entirely on the subjective intent of the author, just as they do not depend entirely on the subjective perception of the reader/listener.
Rather, a sounder originalist analysis of Sotomayor’s statements would ask what does her “wise Latina” nonsense mean in the standard language of early-twenty-first century America? Same for Obama’s healthcare soundbites. Intent is a useful tool, so far as it goes, but it doesn’t do the whole job for you.
I do not want to suggest otherwise. My point is that the five assumptions I highlighted must be true for the administration’s objection to have any weight. And yet, it is these very assumptions that the “living, breathing document” crowd argues are not true. My primary point is that there is a huge inconsistency here in saying that meaning of the President’s words are fixed, while the meaning of the words in the Constitution are not.
But that aside, I wonder if you would mind speaking to one question I just thought of after reading your post. You said that “words have objective, demonstrable meanings at the time they are used.” I agree with this. But what happens if an author uses a word in a special sense, or even uses a word wrongly. Suppose the author writes a word thinking it means X when the word really means Y. If the question is, “what did the author mean?”, I am inclined to think that the author’s intended meaning controls in this situation. What do you think?
I should note that I personally favor original meaning analysis over original intent analysis.
If you’re talking about what a book or article means, sure. But I thought the reason for preferring original meaning for “public” documents is that their force comes from them having received the consent of others. Those giving consent can’t know of idiosyncratic of secret meanings held by the authors, so the public meaning, rather than the intent, controls. There’s an analogy to mistake doctrine in contract law there somewhere, I think.
I think you’re way overthinking this. It seems to me that the simplest response to the video clip is that it was from a speech Obama gave in 2003, before he was even a Senator, much less the President, and it really doesn’t have anything to do with the current bill.
So, if the question is: will the health insurance reform plan currently before Congress eliminate private health insurance? then I think you need to consider what Obama is saying about this plan, look at the plan itself (which is hard to do, since there are still several competing proposals), listen to what other people, like economists, etc. are saying its long term effect will be. Things like that.
This clip just doesn’t answer that question. And that’s not because of any of the assumptions you discuss above, it’s because what he supported in 2003 is not necessarily what he supports now and because even if he still does think that single-payer would be the best way to go, he might realize that that’s not politically feasible and decide to support something else. It’s perfectly plausible that he *wants to* eliminate private insurance but that the doesn’t think or intend that this bill will do that.
On the larger point, I agree with Titus — words have objective meaning. That’s just how they work. (Of course, there are ambiguities, and people will at times disagree about the objective meaning.)
But, humans being humans, there are indisputably times when a speaker’s or a listener’s subjective meaning differs from the generally accepted objective meaning. And, accordingly, there will be times when “what did you mean by that?” or “what does that mean do you?” are relevant questions.
The Sotomayor confirmation hearing was clearly one of those times. That’s because the relevant question wasn’t what did the speech mean to the audience, but what did she mean by it? The issue was her values, her attitudes, her character, so her intent was relevant.
I don’t think that you need to buy into originalism to respond to either of these situations. But that’s largely because I don’t think originalism is a theory about how best to interpret texts but rather it’s a political theory about what is the relevant question to ask when interpreting the constitution.