Originalism as Infantilism

In a discussion about constitutional interpretation at another blog it suddenly struck me that originalism is a form of infantilism. What originalists long for is a single clear authoritative and unquestionable interpretation of what the Constitution means. And that’s really no different from small children who look to their parents as infallible arbiters of what the world means. The near-deification of the Founders and the insistence upon their superhuman wisdom fits perfectly with this concept as well.

About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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11 Responses to Originalism as Infantilism

  1. Pinky says:

    I’m sure you are familiar with the teachings of William James.

    Here’s a link that, to me, has some bearing on the question you are rasing in your post.


  2. James Hanley says:

    Nice link, Pinky. Thank you.

  3. Dr X says:

    Really astute observation, James. And this is something I could go on and on about from a theoretical perspective. The work of psychoanalyst, Heinz Kohut, is especially relevant because he developed a robust theory of the self that addresses the role of infantile idealizations in the structuralization of the self. Sorry for the mouthful, but Kohut and the implications of his work are important, but can’t be summed up very simply, not that I haven’t tried:


    In healthy development, belief in the perfection of the idealized parental figures gradually gives way to a more realistic, tempered set of internal ideals. Idealizations have a healthy place in our lives, but we don’t insist on reality conforming to an imaginary ideal perspective. Instead we move comfortably between reality and ideals, without losing the benefits of either the latter or the former. The person whose development is deficient in the area of idealization, will put all their eggs in the basket of ideals, even at the expense of reality. Or they become a complete cynic, abandoning any belief in the possibility of a better world. The obvious manifestations of an all-out commitment to the ideal world include religious fundamentalism and extremist political movements.

    And I think you’re absolutely correct about the infantile quality of the demand for a single, clear, authoritative interpretation of the constitution. And I believe that what that elusive original meaning represents to them is the infant’s internal Mommy/Daddy–perfect in every way.

  4. Dr X says:

    Sorry, that could have been better written. I was out on a break at Starbucks, and some guy was talking so loud I couldn’t hear myself think.

  5. James Hanley says:

    Written well enough. Thanks–I always appreciate your contributions from the psychological literature. I know there’s a lot of relevant ideas there, but I’m not familiar with many of them.

  6. Michael Heath says:

    James Hanley stated:

    In a discussion about constitutional interpretation at another blog it suddenly struck me that originalism is a form of infantilism.

    As someone would greatly respects originalism smartly practiced (Barnett, John Paul Stevens when he employed it), I object slightly. I would argue that originalism disproportionately attracts infantile adults. There’s nothing about originalism that’s inherently infantile, only that it’s a magnet for infantile personalities because it can be more easily exploited by infantile personalities, Exhibit A being Antonin Scalia.

  7. Matty says:

    I hesitate to step into this, given my knowledge of the subject is entirely limited to skimming blogs but I suspect there is a distinction between letting the early history of a legal text inform how you read it (smart originalism) and claiming there is only one legitimate way of applying that text which has been unchanged since the start (less smart). The first, which I suspect is closer to Mr Heaths meaning is not obviously infantile, the second seems closer to your analysis.

  8. Lance says:

    When I first simplistically approached the subject of constitutional interpretation it seemed there were two competing idioms.

    The first being the “living document” model which at first encounter seemed to be a way to twist, or even ignore, the words of the constitution to fit any favored outcome.

    The second was “originalism”. This appeared to be a straightforward appeal to the actual text and the contemporaneous opinions of the framers.

    Now I see that an interpretation that isn’t textually consistent with the verbatim words of the constitution can be more in keeping with the principles upon which it was founded. Still, I am queasy at the thought of interpretations that disregard the text and attempt to divine a meaning that is “better suited” to our modern society.

    I must confess that I did, at one time, view the constitution as a sort of transcendent document. I still find the inspiration for the constitution, and the principle upon which it was founded, to be transcendent, but view the actual document as a work in progress. It has served the republic fairly well these two hundred or so years but I would be surprised if the framers would recognize the government that now claims it as its foundation.

    Also, I expect that they would have anticipated many more changes to it than the 27 amendments that have been adopted if not a “clean sheet” change after more than two centuries.

    Also, I didn’t feel comfortable having fundamentalist Christians as fellow travelers on the “originalist” bus. It became obvious to me that they viewed the constitution, or at least their favored interpretation there of, as yet another of their “holy books” and that it was inspired by, or maybe even vicariously written by, their god.

  9. James Hanley says:

    Matty–Correct. In fact if I recall correctly, Mr. Heath likes Randy Barnett’s style of originalism, which isn’t at all out of line with my views, so his clarification is well taken. As I would put it in a nutshell, the question is not “what did the Founders mean by clause X,” but “what goals were the Founders trying to achieve?” Confusion is caused by the word “originalism” having somewhat different meanings–and if that’s true for that word, how could it not be true for many of the crucial words in the Constitution itself?

  10. D.A. Ridgely says:

    Having once upon a time wallowed in the mire of legal philosophy, I might note that there is a somewhat infantile element in the posture of those who would construe the Constitution (or any law) to justify their desired outcome of the grandiose Humpty Dumpty variety. A plague on both their houses!

    That’s not to obliquely defend originalism in any of its varieties, all of which suffer from philosophical objections ranging from arbitrariness to incoherence. I do, nonetheless, understand the motive force behind an initial attraction to some sort of originalism. Ever since the Anglo-American legal community has reluctantly come to grips with the arguments against natural law, many have struggled to find some way to limit the potential capriciousness of those in power; that is, some sort of objective standards to take natural law’s place. (Note that this is the motive force behind the law and economics movement, too, at least among non-economists.) The desire to find some sort of objective grounding of the law is not, I think, per se objectionable. Well, except insofar as it is somewhat philosophically naive. We would, after all, like to believe that Adams’ goal of establishing “a government of laws and not of men” is somehow possible.

    Finally, one need not be in the thrall of the superego to find some virtue in the notion that a legal text ought to be understood, insofar as it is possible, as it was originally intended. I, for example, think a generalized right of privacy is highly desirable, but I cannot find such a right in the Constitution, itself, nor am I persuaded by the decisional authority following Griswold. Moreover, pace Freud, sometimes a cigar is just a cigar: had the Birthers’ suspicions been confirmed, we would have had a genuine constitutional crisis (if only because of the prospect of a President Biden). Personally, I think the natural born citizen requirement for president should be changed and I would enthusiastically support an amendment to change it, but I’ll be damned if I want to see the Supreme Court change it by ‘interpretation.’

    Which is just a rather long winded way of saying that one need not be an originalist or suffer from Daddy issues to insist that, short of amendment, the Constitution occasionally prohibits or permits that which we would have preferred it to permit or prohibit, respectively, and irrespective of any attempt to interpret the undesirable result away.

  11. ppnl says:

    I, for example, think a generalized right of privacy is highly desirable, but I cannot find such a right in the Constitution, itself, nor am I persuaded by the decisional authority following Griswold.

    So do you think that government powers are limited to what is explicitly granted to it?

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