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Distinguishing Original Meaning and Original Intent:

Lawprof Larry Solum of the Legal Theory Blog laments:

From the perspective of a constitutional theorist, I am frequently baffled, frustrated, and confused by the carelessness with which the theoretical foundations of debates about original meaning are articulated, both in the blogosphere and in contemporary constitutional scholarship. How can it be that the distinction between the various forms of originalism are still ignored? Can anyone really have missed the shift in originalist thinking from original-intentions originalism to original-meaning originalism? Most contemporary originalists believe that the relevant inquiry is into the original "public meaning" of the constitutional provision at issue. Hardly anyone thinks that the intentions, expectations, or purposes of the framer's are independely entitled to interpretive authority--although they may be evidence of original public meaning.

I definitely share Larry Solum's frustration. Sadly, the confusion is not confined to the blogosphere and "contemporary constitutional scholarship." Supreme Court Justice Stephen Breyer also does not get the distinction between original meaning and original intent (or at least does not realize its importance), as I explain in Part III of my forthcoming review of Active Liberty: Interpreting our Democratic Constitution, his recent book on constitutional theory. Breyer also conflates originalism and textualism (which need not require any reliance on original meaning OR intent). These two distinctions are not just academic hairsplitting, because original intent, original meaning, and textualism often lead to widely differing results in real-world legal controversies.

Perhaps future Supreme Court nominees should be required to explain the difference between original meaning and original intent during their confirmation hearings! It would certainly be more fun to watch than the hearings we have now - at least for Larry Solum and me.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism Debate Update:
  3. More on Originalism:
  4. Distinguishing Original Meaning and Original Intent:
M (mail):
Solum says he's puzzled about Lederman. Maybe the answer is that Marty L, like many others, thinks that the shift between origianl intent to original meaning isn't really as significant as the proponents think, and that the most damaging objections apply to both? I can't speak for him, obviously, but I have to say that I don't really see original meaning as being a serious improvement over original intent as to the most important objections. (The epistemic objections against original intent- that it's impossible to know what that was, are of some importance and interest but are not the most important, and of course if you know, say, much about philosophy of language the idea that there was an "original meaning" open to our knowledge is pretty dubious too.)
8.19.2006 10:10pm
Jon Rowe (mail) (www):
I agree. Sometimes original meaning validates results that are more consistent with liberalism or libertarianism than original intent. One thinks of the way Akhil Amar or Randy Barnett argue in their original meaning scholarship, where they show that the original public meaning of the principles our Founders put forth lead to results that may not have been at all what was subjectively expected.

Though, sometimes the "secret" original intent of the Founders is far more radically subversive than the the original meaning that the public understood.

This is especially the case with religion. John Adams and Thomas Jefferson in particular thought that by Founding America, through the principles enunciated in the Declaration and the Constitution, on the light of man's reasons and Enlightenment thought, that the Christian religion itself would be transformed to throw out virtually all of its orthodox doctrines like the Trinity, and be replaced by a unitarian-universalist version of the creed.

This was all addressed however, in their private correspondence. Had their letters been made public, their reputations would have been ruined.
8.19.2006 10:13pm
frankcross (mail):
Seems like angels on a pin to me.

Just a way to make originalism more malleable. The best evidence about the meaning of the Constitution we have is from The Federalist or similar documents from the framers. Now, with original-meaning, we can discount those when inconvenient, as original intent, not original meaning. I have always supposed original meaning was: what did a majority of ratifiers believe this meant? About which we have so little info, one can more readily jam one's preferences into the Constitution.
8.19.2006 10:38pm
STM (mail):
Like the previous posts, I guess I'm one of those folks who can't see much practical difference between "original intentions" and "original public meanings." I understand the theoretical distinction, to be sure, but in the event, its hard to imagine the difference between the "original expected application" and how, in Solum's words, the text "would . . . have been understood by an ordinary adult citizen at the time it was adopted." How else would it have been understood? Insofar as educated people thought about the Commerce Clause or Fourth Amendment, for example, they could only have understood the meaning of the language in terms of the factual context in which they lived and the problems they hoped to redress. After all, the ratifying conventions were not conducted as seminars in constitutional hermeneutics, but exercises in practical governance. In other words, setting aside the problems of ambiguity and multiple understandings, as a matter of historical fact, I very much doubt that you can separate the original meaning from the expected application in the way that originalists suppose. This perhaps explains why the best "evidence" of "original meaning" usually turns out to be remarkably similar to the "evidence" previously relied upon to establish the "original intentions" of the framers, ratifiers, etc., with the addition of a few 18th century dictionaries and newspapers thrown in for good measure (though invariably taken out of context). If, on the other hand, you take the position (as I believe Barnett does) that you're not really doing history after all, but a "forensic" exercise in constitutional interpretation, then originalists are indeed no different than living constitutionalists, since in that case the historical record isn't a meaningful constraint on interpretation. My point is not to be completely skeptical about the possibility of historical knowledge, or to question the good faith of originalists, but rather to insist that constitutional interpretation is invariably normative and thus involves exercising moral or prudential judgments. And that is always something we have to do for ourselves.
8.19.2006 10:39pm
Medis:
On the general point: I agree with Jack Balkin's recent post that a large part of the problem is caused by the failure of some (including a Supreme Court Justice) to distinguish between original meaning and original application, and that is what causes many people to further lump original meaning into original intent.

STM,

Obviously, I think it is incorrect to imply this is an unworkable distinction. As a commentator to one of Balkin's prior posts on this subject explained, people studying language have long drawn precisely that distinction (between meaning and application, also sometimes called reference, extension, denotation, and so on). And this is not just for certain kinds of linguistic discourse, but rather it is a basic structural feature of language.

Indeed, in effect you are suggesting people cannot think and speak in abstract terms, but that is precisely what language allows people to do. And as Balkin and others have suggested, using abstract terms may have been a conscious choice on the part of the drafters of various constitutional provisions and amendments, and the ratifiers may well have understood them as abstract.
8.19.2006 11:08pm
alkali (mail) (www):
Perhaps future Supreme Court nominees should be required to explain the difference between original meaning and original intent during their confirmation hearings!

Then, we can start quizzing prospective Surgeon Generals on the differences between young earth theories and intelligent design.

(We kid! We kid because we love!)
8.19.2006 11:16pm
James Lindgren (mail):
Come on. I can't believe that some of you can't see the difference between original intent and original meaning. How can I know what was in the head of people whom I've never met and never talked to, and who said absolutely nothing on the topic? I'm not a mind reader. That's a serious practical problem.

As to figuring out what the words meant at the time Congress enacted a law or states ratified an amendment, sometimes we can do this with fairly high reliability, sometimes we can't.

Original meaning is not just an interpretive strategy for the Constitution; it is a strategy for interpreting statutes as well. Do you also think it's impossible to know what the words of a federal statute meant at the time Congress passed the statute, say, in 2001? Situations in which we can determine the public meaning of the words of statutes passed in the last 10 years will be more common than statutes or amendments passed in 1789, but the difference is one of degree, not of kind.

It was fashionable 10-15 years ago to believe that the epistemological argument was devastating to originalism, but most sophisticated theorists today recognize that sometimes we can determine what words probably meant or didn't mean and sometimes we can't.

Sensible people on both sides of the political spectrum continue to make arguments about statutes based on the public meaning of the words when the statute was passed. If words are radically indeterminate, then it's hard to see how law is law.

Jim Lindgren
8.20.2006 12:14am
Bruce Wilder (www):
The only real value of a rigorously defined method of interpretation would be if it could convince people opposed to your result in a particular case, that the result was legitimate. As long as constitutional theorists wear their desired results on their sleeves (which is pretty much going to be as long as the theorists are lawyers), it is going to be difficult for any proposed method to achieve a legitimating status, apart from the attractiveness of the results supposed to flow from the method.

Tell me if Taney was using original intent or original meaning in Dred Scot, and whether you think he got some or all of the decision wrong, the method wrong or the evidence wrong, and why.

Or, tackle the one-man, one-vote cases (Reynolds v Sims, Baker v. Carr, etc.). Although great men have denied it, the 14th amendment was clearly intended to protect voting rights, though the mechanism outlined in the amendment proved defective. If you don't think voting rights matter much, and lots of conservatives and Republicans are no Democrats (hee-hee), I guess you can just call for a revised amendment, adopted by some miracle against the interests of overfranchised voters and their pet legislatures. But, that's just as results-oriented an "interpretation" as the Warren Court's decisive intervention in favor of one-man, one-vote. Is original meaning or original intention going to be "pragmatic" or "pure" in confronting a problem like that faced in the apportionment cases of the early 1960's? And, what will decide pragmatic v. purity?

If the men, who must decide, do not make your fine, academic distinctions, perhaps, they find no usefulness in them, because there's no usefulness there. It is just the small-minded making themselves feel superior.
8.20.2006 12:14am
James Lindgren (mail):

Although great men have denied it, the 14th amendment was clearly intended to protect voting rights, though the mechanism outlined in the amendment proved defective.

This is almost certainly wrong.

The first version of the 14th amendment was jettisoned PRECISELY because it would have immediately given African Americans the vote. The watered-down 14th amendment we got was designed PRECISELY not to give African-Americans the vote--at least not in the short run. The radical Republicans who proposed the 14th amendment wanted to mandate black sufferage but (after worrisome results in state off-year elections) didn't think it was politically possible to guarantee voting at the time, so they settled for a 14th amendment that did not guarantee black sufferage. One might argue that the proponents hoped that Congress or the Courts might interpret the 14th amendment more broadly in the future to cover voting. But they could have fairly easily guaranteed voting by adding a phrase such as "including voting" to the language of the 14th amendment, but they chose not to for political reasons.

That's why they passed the 15th amendment--because the 14th amendment did not cover voting. You can read all about the development of the 14th amendment and the voting issue in Andrew Kull's prize-winning history, The Color-Blind Constitution (Harvard Press), which BTW argues that, except for a few years in the mid-1960s, the idea that the Constitution was color-blind was never the consensus view.
8.20.2006 12:37am
M (mail):
Looking back I see that I wasn't clear when I mentioned the epistemic objections above. That was an example of what I take to be the _less_ important objections. The more important objections, I think, apply to both sorts. And of course I can see that there are differences between the two views. My point was only that these differences don't help in meeting the important objections. It's late and I have work to do, but see Brian Leiter's old post (now re-linked on his law page, I believe) for something roughly along the lines I follow. (I'd not put the objections in such Razian terms myself but that's all fine for what we have here.)
8.20.2006 1:00am
Jonah B Gelbach (mail) (www):
Perhaps future Supreme Court nominees should be required to explain the difference between original meaning and original intent during their confirmation hearings!

Was this statement written in jest? Did you watch the confirmation hearings for Roberts or Alito? How much of those hearings would you say involved serious discussion of major debates in con law theory? Maybe 10-20%? If that.

Between Biden's blathering on the left and the salivatory fawning from the right by the rubberstamping likes of Hatch and Cornyn, I found those hearings tremendously disappointing. I'd have been satisfied with *any* serious discussion of jurisprudential philosophy -- say, by asking and then requiring the nominees to explain why one or another controversial decision was rightly or wrongly argued.

I think a serious discussion of the subtleties separating original intent and meaning is totally over these guys heads, not to mention their interest-group backers, too.
8.20.2006 1:06am
Lev:

*any* serious discussion of jurisprudential philosophy -- say, by asking and then requiring the nominees to explain why one or another controversial decision was rightly or wrongly argued.


How about 'splaining why and when foreign law should be used to "reveal the meaning of" the US Constitution.
8.20.2006 1:55am
Cornellian (mail):
How about 'splaining why and when foreign law should be used to "reveal the meaning of" the US Constitution.

When it's English common law cases from which many of the phrases in the Constitution were derived.
8.20.2006 2:16am
Dan Simon (mail) (www):
These two distinctions are not just academic hairsplitting, because original intent, original meaning, and textualism often lead to widely differing results in real-world legal controversies.

You may understand the finer points of the definition of "originalism", but you don't seem to have mastered the definition of "academic hairsplitting". Two academics can disagree vehemently, even violently about some issue, and even proceed to base their entire, massively conflicting worldviews on that disagreement--but if the rest of the world considers their disagreement pointless and irrelevant, and the worldviews they derive from it hopelessly divorced from common sense and reality, then they're still engaging in academic hairsplitting.

In this case, while it may be true that "original intent" originalists and "original meaning" originalists end up bitterly opposed on all sorts of issues, the fact that the rest of the world cares not one whit about either faction, nor their methodologies, nor their conclusions regarding "real-world legal controversies", makes their dispute a perfect exemplar of "academic hairsplitting".
8.20.2006 2:19am
jinnmabe (mail):
Wait, so now we are determining what type of constitutional interpretation is best by appealing to whether the "rest of the world" is interested in the various theories? And you dare put forth this theory on this blog? Good grief, have you ever been here before?

I'm not saying some of the disagreements I've heard between constitutional scholars didn't bore me to tears, but I'd hardly argue that because I personally didn't care about it, or because people who couldn't tell the difference between the Constitution and a morning constitutional don't care about it, it didn't matter.
8.20.2006 3:00am
Bruce Wilder (www):
me: "the 14th amendment was clearly intended to protect voting rights"

Jim Lindgren: "This is almost certainly wrong. . . . they could have fairly easily guaranteed voting by adding a phrase such as 'including voting' "


They did include the phrase: "when the right to vote at any election . . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, . . ."

I did not claim that the remedy prescribed in the text made much practical sense, but the intention to protect the right to vote was clear enough.
8.20.2006 3:01am
James Lindgren (mail):
The first 3 sections of the 14th amendment read:


Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The 2d section of the amendment clearly contemplates that voting rights of some men will be abridged and doesn't actually prohibit that abridgement, but rather simply provides a penalty to a state in terms of seats in the House of Representatives.

Bruce, when you wrote that the amendment was designed to "protect" voting rights, I thought you meant protect by guaranteeing the right to vote. But if all you meant was that it was designed to "promote" voting rights, not provide a legal right to vote, then we are in agreement.

When I suggested that they could have added simple language about "voting," I was referring to the granting of rights in section 1. It is true that section 2, which doesn't grant individual rights but rather allocates seats in Congress to states, would have to be dropped as well (or rewritten in some very different way).
8.20.2006 3:51am
Lev:

When it's English common law cases from which many of the phrases in the Constitution were derived.


That may be what you say, and it may be what Scalia says, but it does not seem to be what Ginsburg and Breyer, at least, say.

In any event, the antecedent to my comment was:


by asking and then requiring the nominees to explain


Unless you are holding out on us, you are not a nominee.
8.20.2006 3:59am
Marcus1 (mail) (www):
With respect, I have to agree with the point that it's equally (if not entirely) the fault of originalists for failing to distinguish between original meaning and original application. (See Scalia's comment that the constitutionality of anti-sodomy laws is a no-brainer for him since sodomy was illegal at the time of constitutional ratification.)

And of course there's a reason for this: on the contentious issues, being an originalist on "meaning" rarely resolves anything at all, since the meaning of so much of the Constitution is intentionally (or explicitly, if you prefer) broad. In this sense, Living Constitutionalists can just as well call themselves "originalists" on meaning; their position is simply that the proper application has changed over time. That is, precisely as the original meaning of the Constitution requires.

In my view, if you're talking about the contentious political debate, it really is between those who want a present day application of constitutional phrases, and those who would apply them according to historical convention (a position much closer to original intent than original meaning). It may not be what libertarian academics have in mind, but I don't think the characterization stems from any misunderstanding.

Also, isn't jettisoning original intent at this point is a bit to easy? I'm not even an originalist, but original intent has to be relevant. Can we really at this point completely give up the idea that the intentions of our constitutional framers were at all important? Are we really going to rely entirely now on the interpretation of the average 18th Century citizen? Certainly it's a fine question to ask, but to act like that should be the sole criteria for meaning strikes me as pretty nutty. It gives up a lot, for instance, the idea that our enduring success over the centuries has been due to the brilliant guidance of our founding fathers.

Really, it seems revisionist to try at this point to turn the Constitution into something purely populist, whose meaning derives nothing from the intent of its framers. After all, these were the guys entrusted to write the document. The fact that originalism, in its morphing attempt to achieve absolute purity, now has to completely write off original intent, to me gets to the heart of the basic flaw in that attempt. You can try all you want, but the Judiciary is always going to require sensible people to interpret the Constitution, not computers.
8.20.2006 4:35am
Dan Simon (mail) (www):
Wait, so now we are determining what type of constitutional interpretation is best by appealing to whether the "rest of the world" is interested in the various theories? And you dare put forth this theory on this blog? Good grief, have you ever been here before?

Not that it wouldn't be a bad idea for the legal scholarly community to pay attention to what the "rest of the world" thinks for a change, instead of being lost in their own obscurantist, self-aggrandizing legal theories, but when the "rest of the world" includes even the vast majority of legal scholars outside the tiny coterie of originalism fanatics, it's safe to say that doctrinal disputes among originalists amount to nothing more than "academic hairsplitting".
8.20.2006 4:51am
Scrivener:
Original intent originalism looks at what the writers intended the meaning of the Constitution's words to be at the time of enactment.

Original meaning originalism looks at what the meaning of the Constitution's words actually was for its intended readers at the time of enactment.

The writers as a group shared the contextual and educational background with the intended readers.

Also, the writers were among the most qualified people for the task at the time and recognised the importance of the task.

From this I conclude that, absent a major unexplicable screwup on behalf of the Framers, the "original intent" meaning and the "original meaning" meaning must be identical both in substance and in clarity (or lack thereof).

Textualism is irrelevant for all practical purposes: I have yet to see someone seriously proposing that, for example, First Amendment would not cover written correspondence because it's neither "speech", nor "press".
8.20.2006 5:16am
Brett Bellmore:
While there are significant distinctions between textualism, original intent, and original meaning, in practice they tend to fade into irrelevance when contrasted with the "living" constitution's assertion that the constitution means whatever judges find convenient. The former all suppose that the Constitution, barring amendment, has a fixed meaning, the latter, a "meaning" which changes from day to day.

In effect, the former all give us actual constitutions, which might vary slightly from one another, the latter denies us a constitution in any meaningful sense, because it's the purpose of a constitution to supply fixed rules.
8.20.2006 7:24am
PersonFromPorlock:
Jim Lindgren:

The Fourteenth Amendment's reduction in representation for disqualifying Black voters probably reflects Article Two Section One's deference to the states in setting voter qualifications. Given the plain meaning of A2S1, it's hard to see what more Congress could have done unless they were willing -- which, of course, they later were -- to reduce the independence of the states.

Of course, the Civil War had already done that but sometimes it takes a while for legislators to catch on.
8.20.2006 7:43am
Simon (391563) (mail) (www):
but most sophisticated theorists today recognize that sometimes we can determine what words probably meant or didn't mean and sometimes we can't.

I've always wondered about this. What is the warrant for embracing a a theory that cannot reasonably claim to provide answers to all questions we seek? In other words: why adopt an interpretative methodology that only gives reliable answers 50% of the time? (Especially, I might note, in light of the "judge-constrainting" virtue so many originalists (of all types) impute to the method.)
8.20.2006 9:12am
STM (mail):
Medis:

This may get lost in all the intervening posts, but I am certainly not denying the obvious point that people can and sometimes do speak in deliberately abstract terms. There are such things as philosophy seminars, as I mentioned. But I'm quite skeptical that this is what the ratifiers of the original Constitution or the Bill of Rights were doing. I think its closer to the truth to say that, in many cases, they deliberately used broad, underdetermined (yet not necessarily indeterminate) language not because there was widespread agreement on its abstract meaning, but just the opposite, to paper over intractable ideological or political disagreements in an effort to secure ratification. But if so, the purported search for the inherent public meaning of the text is a largely meaningless exercise, a kind of abstract historicism that is no less "ideological" than any of its theoretical rivals. It is a meaning that we impose on the text. Moreover, originalists don't typically make a sophistocated attempt to place the language in the larger intellectual and cultural context of the late 18th century, along the lines of say Quentin Skinner or JGA Pocock. Insead, they read like a lawyer's brief. There's nothing wrong with that, just don't pretend that you're doing intellectual history.
8.20.2006 9:47am
Choosing Sides 2 (mail):
How can I know what was in the head of people whom I've never met and never talked to, and who said absolutely nothing on the topic? I'm not a mind reader. That's a serious practical problem.

And how does "original meaning" originalism escape this problem? Instead of determining the intent of the framers, you support using mind-reading to determine what was the generally accepted meaning by looking to the minds of the population in the 1780's. You can argue that there are better indicators of the general meaning of word (which is a VERY debateable position) than the intent of the framers. However, I don't know why looking at the Federalist papers to determine intent is worse than looking at other indicators (probably including the Federalist papers) to determine original meaning.

You talk about how you reject the indeterminacy thesis (which is a discussion for another place), but you seem to be using a form of it to mock "original intent" originalism. That seems like a bit of a contradiction to me.
8.20.2006 11:33am
GrandCRU (mail):
This may get lost in all the intervening posts, but I am certainly not denying the obvious point that people can and sometimes do speak in deliberately abstract terms. There are such things as philosophy seminars, as I mentioned. But I'm quite skeptical that this is what the ratifiers of the original Constitution or the Bill of Rights were doing.

This is a very naive and ignorant comment. I generally do not agree with Medis, but I wholeheartedly agree here and think, based on what he has said thus far, he is absolutely right. Politicians often put vague or ambiguous terms in laws because they cannot reach agreement on any more specific language. It is certainly clear that debates during the constitutional convention were sharp and focused because of fundamental disagreement. A good deal of the language in the Constitution is general and abstract for this very reason.
8.20.2006 12:23pm
STM (mail):
I might add, looking back at my last post, that I'm not suggesting that all provisions of the Constitution were attempts to paper over disagreement with abstract language that could mean different things to different people. As I think about it, that may well have been the case, for example, with the Commerce Clause and the Ninth Amendment, as the proper scope of Congressional power and the status of unenumerated rights, then as now, seem to have been sharply contested issues, about which there was no consensus. The Fourth Amendment, on the other hand, seems to raise the opposite problem. If I understood Barnett's post, he agrees with Amar that the purpose of the amendment was to prevent the use of general warrants, which strikes me as entirely reasonable and plausible. But if you had asked a participant at one of the ratifying conventions, "What is the meaning of the Fourth Amendment?", he likely would have said "It means the government can't use general warrants." What is the historical evidence that the language of the Fourth Amendment was widely understood at the time of its ratification to enact an abstract principle about, say, government oversight of the police? Isn't this rather something that later courts, reasonably enough, read into the Fourth Amendment?
8.20.2006 12:28pm
STM (mail):
I might add, looking back at my last post, that I'm not suggesting that all abstract provisions of the Constitution were attempts to paper over disagreement with language that could mean different things to different people. As I think about it, that may well have been the case, for example, with the Commerce Clause and the Ninth Amendment, as the proper scope of Congressional power and the status of unenumerated rights, then as now, seem to have been sharply contested issues, about which there was no consensus. The Fourth Amendment, on the other hand, seems to raise the opposite problem. If I understood Barnett's post, he agrees with Amar that the purpose of the amendment was to prevent the use of general warrants, which strikes me as entirely reasonable and plausible. But if you had asked a participant at one of the ratifying conventions, "What is the meaning of the Fourth Amendment?", he likely would have said "It means the government can't use general warrants." What is the historical evidence that the language of the Fourth Amendment was widely understood at the time of its ratification to enact an abstract principle about, say, government oversight of the police? Isn't this rather something that later courts, reasonably enough, read into the Fourth Amendment?
8.20.2006 12:30pm
STM (mail):
GrandCRU:

But that is just my point, at least part of it. If the framers deliberately used vague or ambiguous language about which there was no consensus on its meaning, not just its application, how can we resort to the "original meaning" to resolve present disputes? Isn't the meaning, in that case, up for grabs, either in the political process or adjudication?
8.20.2006 12:42pm
GrandCRU (mail):
If the framers deliberately used vague or ambiguous language about which there was no consensus on its meaning, not just its application, how can we resort to the "original meaning" to resolve present disputes? Isn't the meaning, in that case, up for grabs, either in the political process or adjudication?

Well, no. You are conflating some points. Ambiguous language means one of two things. That is a constraint on interpretation. Vague language may have a maximum and a minimum, that is, things is necessarily cannot mean and things it necessarily must mean. To the extent there is agreement on that, there is abstract language that does not include any particular application by necessity, but excludes whole swaths of possible applications and includes whole swaths of possible applications. Arguing that something it outside of the orginal public meaning just means it is outside of the range of the vague language in the Constitution or outside of the two possible meanings of the ambisguous language there. You are conflating vagueness or ambiguity with "absolutely no limits whatsoever". And if there were no limits whatsoever, there wouldn't have been a debate or any words put into the Constitution -- so your position is necessarily absurd.
8.20.2006 1:03pm
frankcross (mail):
Well, I think it is easier to get into the heads of the Founders, who explained their beliefs in writing, than it is to get into the heads of the ratifying public, who did not.

Of course words have limiting meaning, but that principle restricts "original meaning" to textualism. The only thing that original meaning adds to textualism is a reliance on the understanding of a bunch of people who ratified the Constitution, long ago, about whom we know relatively little.
8.20.2006 1:10pm
GrandCru (mail):
Holy crap. In a debate with Frank Cross. Can I put this on my resume?


Well, I think it is easier to get into the heads of the Founders, who explained their beliefs in writing, than it is to get into the heads of the ratifying public, who did not.


I think this is wrong. It`is very easy to get into what one might have reasonably understood upon reading the Federalist Papers or reading the Constitution, by looking to the context. And the conext includes the primary documents and the dictionaries and usage guides of the time. One can certainly include the private letters and notes of the attendants to the Constitutuonal Convention (and alternate drafts of provisions), but one is not limited to them. That's the evidentiary difference.
8.20.2006 1:37pm
Hugo Black (mail):
Original meaning is not just an interpretive strategy for the Constitution; it is a strategy for interpreting statutes as well.

Jim, the a Constitution is not a like statute. It's not meant to be, nor does it serve the same purpose. It's a Constitution. It creates a government and the rules for administering it (including the rules for creating statutes).

The Constitution is not written like any statute I've ever seen. And I imagine if statutes were written that way, we would have a lot more disagreement on statutory interpretation. And, in fact, when statutes use abstract language without defining it, disagreement is exactly what you get.

In any case, a major problem with either original intent or original meaning is that there is no meaningful way to know whether you've been faithful to either. That is, even if you decide that either is desirable, they're useless if there is no way for an observer to look at a decision and say, "yes, it is in accord with original intent/meaning," OR for a Judge to say, "see, I did XYZ, thus I was true to the theory of original intent/meaning and so is my decision." Right now, no such thing exists. To use CJ Roberts' baseball analogy, we don't even have widespread agreement on what is a ball or a strike in this game, let alone an objective/empirical measuring stick.


in practice they tend to fade into irrelevance when contrasted with the "living" constitution's assertion that the constitution means whatever judges find convenient.

Brett, this is utter BS and you know it. Everybody starts with the text. The point is, as someone mentioned upthread, "constitutional interpretation is invariably normative and thus involves exercising moral or prudential judgments. And that is always something we have to do for ourselves."

If you really want to restrain the power of judges, the ostensible goal of both theories, the best bet would be to dump our entire legal system (i.e. use process the beloved Constitution gives you: amendment). As it stands, judicial power/discretion is simply built into the legal system and no theory of interpreation is going to change that.

As a friend of mine said, "To judge is to make policy." Proponents of originalism might be on stronger ground if they first argued that there was something important to be gained by maintaining the illusion of judges as objective, non-ideological actors engaged in a formal process. And that these methods, in turn, are useful because they help maintain that illusion. Otherwise, these theories are a waste of time.
8.20.2006 2:07pm
frankcross (mail):
That's textualism. Which is an interpretive approach but no need to dress it up as "original meaning." All those resources are the materials of textualism.
8.20.2006 2:08pm
Bruce Wilder (www):
Brett Bellmore:
The [originalisms] all suppose that the Constitution, barring amendment, has a fixed meaning, the latter [living Constitution doctrines], a "meaning" which changes from day to day.

In effect, the former all give us actual constitutions, which might vary slightly from one another, the latter denies us a constitution in any meaningful sense, because it's the purpose of a constitution to supply fixed rules.


I am sure this distinction, pejorative to the advocates of a "living Constitution", seems very clear and persuasive to you, but it is not clear and persuasive to me.

Look at the recent posts on the history 4th Amendment interpretation. The Supreme Court adapted the 4th amendment, by requiring warrants in nearly all cases, when it is not clear that that was the original meaning of the provision. Was it within the "original intent" of the provision? Advocates of a "living Constitution" would probably say, yes.

It seems to me that advocates of a "living Constitution" do not reject constitutional bounds altogether, but they do adopt a very broad concept of "intent" to justify interpretations adaptive to changing circumstances.

Broad and adaptive interpretations do not make advocates of a "living Constitution" hostile to the concept of a Constitution. We have had the same Constitution for over 200 years, because the Constitution has been adapted to changing circumstances and because the Constitution is hard to change by Amendment. If a Constitution is too easy to change, it loses much of its effect as a fixed set of rules outside the bounds of routine political contention, but if necessary amendments are too hard to adopt and, nevertheless, frequently needed, it affords minority groups too many opportunities to hold the country hostage. The Supreme Court has been a safety valve, a means of constitutional change by adaptive interpretation, which has, in fact, preserved the Constitution.

Some adaptive interpretation, I think, is relatively uncontroversial. There can be no original meaning, or original intent in any narrow sense, for technological developments, of which the Founders could not conceive. But, the Supreme Court has, as others in this thread have pointed out, conveniently, extended the protections of the First Amendment to new Media.

Recent posts have highlighted the adaptive interpretation of the Fourth Amendment to changes in the legal system (i.e. sovereign immunity) -- the Supreme Court also adapted the 4th amendment to various technological innovations.

I earlier pointed to the apportionment cases, because I think they are a good example of the value of bold, adaptive interpretation. You don't have to take a particularly broad interpretation of original intent to acknowledge that the framers of the 14th amendment were concerned with voting rights; what you cannot find in the 14th amendment is any hint that the Courts should devise and enforce judicial remedies. On the whole, though I would acknowledge that the judicial remedy is supported by neither meaning or intent, I would say the apportionment cases (Baker v. Carr, etc.) were correctly decided. I guess that puts me into the living Constitution camp. But, that's because I don't think a dead Constitution would have served the interests of the country or justice or democracy, in the circumstances; a living Constitution, in the apportionment cases, was more true to the spirit of the Constitution than a dead Constitution would have been. I am talking about those first three words, "We, the People" and the notion of a sovereign People exercising its will -- denying an effective remedy to people denied representation, because the Constitution is dead (or certain provisions of the 14th amendment are badly written) . . . well, that is a bitter prospect.

Adaptive interpretation by the Supreme Court has become one of the most important features of the small "c" constitution, which has allowed us to keep the big "C" Constitution for over 200 years, and for all the dangers that it poses, at times, to the legitimacy of judicial interpretation of the Constitution, there is no practical way the country's politcal system could long survive replacing it with a crabbed interpretation of a dead Constitution, by doctrines of original anything.
8.20.2006 2:09pm
Hugo Black (mail):
Otherwise, these theories are a waste of time.

Sorry, that's a bit over the top. I mean to say, these theories won't do what proponents want them to do. They still have value, though.
8.20.2006 2:12pm
Feddie (mail) (www):
The best evidence of the original meaning of constitutional text is the debates/notes/etc. from the state ratification conventions. Ultimately, it was the States that ratified the federal Constitution, and without their consent the document drafted by those fine gents in Philly would have about as much binding authority as this comment. For this reason, I think anyone who is serious about understanding the original meaning of the federal Constitution should own a copy of Elliot's Debates.

Oh, and I echo Cornellian's sentiments re: the inclusion of several English Common Law terms of art in the Constitution. Many people (including so-called legal scholars, and a few Supreme Court justices---Justice Kennedy I am looking in your direction) fail to appreciate the rich history behind certain constitutional provisions, and how this history impacts (or should impact) the interpretive process.
8.20.2006 2:40pm
Medis:
STM,

As an aside, I've always thought that almost everyone is a philosopher of sorts, not just the people who style themselves as professional philosphers. And that is certainly true of at least the Framers of the Constitution, but I think it also extends to citizens, at least as they saw themselves at the time.

Anyway, on the main point: I don't think we are really at odds here. We seem to agree on the notion that the Framers could have consciously chosen abstract language, and that the ratifiers could have ratified it as such. The next step might be to ask for what purpose they would do that.

And I think there are many possible purposes to using abstract language. One purpose, for example, could be to provide flexibility for a variety of unanticipated circumstances. And as you point out, another purpose could be to avoid deciding issues on which there is no present consensus.

But I don't see why acknowledging these purposes undermines the basic project. For example, insofar as the abstract language in question provides flexibility, we can apply it flexibly. And insofar as the language left open contentious issues, we could either leave them open, or perhaps decide them through another process (legislative, judicial, even a further amendment to the Constitution) if we think that is appropriate. And all this would be supported by the original meaning of the language.
8.20.2006 2:43pm
Medis:
Brett,

By its own terms, the purpose of our Constitution is to provide supreme law. But I don't think you can get from "supreme law" to "fixed rules".

Indeed, there is a long and ongoing debate about the relative merits of different sorts of laws one can have, insofar as they could be general or specific, allow for more or less discretion in their application, and so on. Sometimes this is called the "rules versus standards" debate, but I actually think even that is an over-simplification.

And as an aside, I tend to agree with those who think the optimal specification in a law depends highly on a number of variables, such as the subject matter and scope of the law, the institutions that will be tasked with interpreting and applying the law, the circumstances in which the law is likely to apply, and so on. In that sense, I think there is no one answer to the "rule versus standard" debate because it depends on how the law in question fits into some greater legal framework.

In any event, one thing is certain about our Constitution: it is clearly a mix of all different sorts of law. For example, some of the provisions are indeed quite specific and afford little discretion, and others are quite general and provide little or no guidance for their application. So, it strikes me as obvious that we cannot generalize about what sorts of laws are in our Constitution, and the only thing we can say is that whatever form they took, they are supposed to be supreme.
8.20.2006 2:53pm
John Thacker (mail):
I guess you can just call for a revised amendment, adopted by some miracle against the interests of overfranchised voters and their pet legislatures.

Apparently, the British Reform Acts should be regarded as miracles, then.

The one man one vote cases have always seemed slightly suspect for ruling that county-based state Senates are illegitimate.

Roger Taney's jurisprudence was hardly originalist or consistent according to any theory, particularly when slavery was involved.
8.20.2006 3:39pm
STM (mail):
Medis:

I don't disagree with the way you've put it, but notice how much room that leaves for the need to exercise judgment. It certainly doesn't seem to hold out the prospect of very many concrete answers on the most contentious issues. Put another way, original meaning, to the extent it can be determined, is a perfectly reasonable starting point, but not more than that.

GrandCru:

I did not equate vague or ambiguous with "absolutely no limits whatsoever," but thanks for the grammer lesson anyway. When I said "up for grabs," I meant within whatever range of constructions the language reasonably admits, e.g. underdeterminate, not indeterminate. I did not, however, make that very clear. With that amendment, hopefully I can be acquitted of being "very naive," "ignorant," and "necessarily absurd."
8.20.2006 3:40pm
Henry Schaffer (mail):
I think that Jack Rakove's 1996 book "Original meanings : politics and ideas in the making of the Constitution" is a helpful discussion of these ideas.

I agree with Feddie that the meaning, as understood by the ratifiers, is very important. The records of this understanding are more extensive than the records of the constitutional convention itself.

I include the BoR in this discussion of interpretation.
8.20.2006 3:52pm
Simon (391563) (mail) (www):
Feddie-

First, the states didn't ratify the constitution, conventions of citizens did. A subtle but terribly important distinction.

Second, re your point about terms of art in the common law: what evidence is there that the public ratifying the Constitution were any more conversant with such terms than the contemporary public is with respect to fundamentals of our present system?

About the last, but a more general point as well: consider whether the Constitution's democratic legitimacy originates from the people who cast the vote in the conventions or from the citizens they represented, and whether that distinction has some bearing on questions of "original meaning."
8.20.2006 4:10pm
Seth Edenbaum (mail) (www):
As I always say in these debates: rather than imagining how the Constitution, or any other text [The Bible? The Qur'an? ] should or should not be interpreted, it helps to know the history of how it has become the thing it is, and then to be aware of how in debating we are doing no more than continuing that process.
The debate is as old as Moses and Aaron. Meanings have always changed, and the one constant is not the meaning of a text but the argument. But the moment you allow argument, fundamentalism is defeated. Scalia's statement "The Constitution as I interpret it is not living but dead" is oxymoronic.

There are no examples in recorded history where attempts to replicate the past have done anything more that codify the interests and preoccupations of the present. I know no one who is prepared to argue that the Pre-Raphaelites made work that looked like Fra Angelico.

Originalism in any form is a rhetorical device (and useful as such), but as an ideology it's a force for reaction. And the irony of reaction is that like radicalism, it's defining form is an ultra-contemporary, ultra-modern idealization: whether of the past or of the future it makes not difference.
8.20.2006 4:17pm
Feddie (mail) (www):
Simon-

Hmmmm. I think the text of the Constitution undermines your argument considerably. See, e.g., Article VII ("The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same"). You'll not that it doesn't say the conventions of "the people."

Look, I know where you're going with this, and I am more than happy to play Stephens to your Story, but the bottom line is that the Constitution became positive law vis-a-vis the States. That doesn't mean "we the people" aren't endowed with certain natural law rights that exist independent of and from positive law, but positive law is necessary for the recognition of these rights.

As for my evidence about "public" recognition of the common law terms of art contained in the Constitution, I would once again refer you to Elliot's Debates. You might also wish to read through the federal convention notes (Ferrand), Federalist and anti-Federalist papers, etc. The notion that the vast majority of founders/framers were unfamiliar with these terms is fanciful.

Finally, you seem to be under the mistaken impression that the Constitution was meant to form a democracy. It wasn't. The founders/framers established a constitutional republic that was to be run by society's elite. Anyone who was read the founding documents knows this to be true. Now, you are certainly free to object to such elitism, but the founders/framers were NOT for the type of "town hall" democracy that so many progressives seem to yearn for (that is, when they're not attempting to circumvent majoritarian polices they disagree with vis-a-vis the courts).
8.20.2006 4:47pm
MnZ (mail):
Proponents of originalism might be on stronger ground if they first argued that there was something important to be gained by maintaining the illusion of judges as objective, non-ideological actors engaged in a formal process. And that these methods, in turn, are useful because they help maintain that illusion.


Isn't the Judiciary's power is an illusion as well? The Judicial branch is the least connected with the electorate, because it is not elected. It has no direct executive or legislative powers. Judges can hand down all the decisions that they want, but if they are ignored by the legislative and/or executive branch, what difference does it make? Oh, did I mention the impact of Constitutional amendments or impeachment of Judges?

Shouldn't many opponents of Originalism also want to maintain the "illusion of judges as objective, non-ideological actors engaged in a formal process"?
8.20.2006 4:53pm
Feddie (mail) (www):
And by "elite," I mean to include those with extraordinary abilities (i.e., merit), not just those with money and land (e.g., Hamilton).
8.20.2006 5:03pm
Hugo Black (mail):
Shouldn't many opponents of Originalism also want to maintain the "illusion of judges as objective, non-ideological actors engaged in a formal process"?

Some of them do. It's wrong to think of this is a liberal/conservative division. You'll recall that one of the first "originalists," Hugo Black, used the theory to justify very liberal decisions. Really, it's legal formalism v. legal realism.

Legal formalists tend to support the idea of originalism because they also like to think (or pretend) that their conclusions are not driven by personal bias or political idealogy, which I think is B.S.
8.20.2006 5:26pm
Bruce Wilder (www):
MnZ: Shouldn't many opponents of Originalism also want to maintain the "illusion of judges as objective, non-ideological actors engaged in a formal process"?

Hugo Black: Really, it's legal formalism v. legal realism.

There's a struggle over power involved, which often threatens to veer off into "rule or ruin" strategies on all sides. If you don't like a particular decision, one always available political strategy is to criticize its legitimacy. The more persuasive your criticism, the more effective your attack on the decision.

Practicality and equity are also considerations in real constitutional interpretation. Whether these considerations are disparaged as "ideology" may be be a matter of taste or perspective among critics, but they are not necessarily identical with ideology, nor are they, necessarily, de-legitimating. In the apportionment cases, I mentioned, the decisions gained a lot of legitimacy from the plain equity of their results.

Equity was a primary legitimating factor in the line of Warren Court cases, which the authoritarian Right now wishes to de-legitimate with fatuous historical analysis, as well as highly selective legal formalism. The most passionate support for reversing liberal precedent comes in Roe v. Wade, and turns on advocacy for a principle of equity -- the sacredness of life -- and not on academic scruples about penumbras.

Hugo Black used legal formalism as a clever defense against critics unpersuaded by the practicality (or sometimes, the equity) of his decisions. The principle of practicality in Constitutional interpretation is commonly invoked, and Black well knew how it had been used to eviscerate the Bill of Rights.
8.20.2006 6:26pm
Simon (391563) (mail) (www):
Feddie-

First, I don't think that theories resting on the distinction between ratification in state legislatures versus conventions can get us very far. But they at least have the virtue of reminding us that the states were never really sovereign.

Second, I have no doubt that the Founders and Framers -- many classically trained and educated -- were well aware of the meaning of many of those terms. That, of course, is a bit of distraction from my point, because the Frames and Founders were not the relevant "public," which would have been composed of all sorts of people who were neither classically trained nor particularly well-educated. That leads to my next point:

Third, your complaints about the democratic means (or lack thereof) of the original Constitution miss the point. Democratic legitimacy is a different question. The two greatest selling points for originalism is its commitment to some sort of democratic principle and its ability to adequately constrain choices by unelected judges. The latter arguments have been rehearsed ad naseum; for evidence of the former, see for example A Matter of Interpretation ("It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is").

If democratic theory is a good reason to be an originalist, then I think it is fair to ask whether the relevant public meaning is among those who voted for the Constitution or those who the conventioneers were representing. To give a modern-day example:

imagine Congress passed into law a statute that every member thought meant "X" but every constituent thought meant "~X." (Tragic confusion, that.) A judge, seeking to be a good "original meaning originalist" does the research and says . . . what, exactly?
8.20.2006 6:46pm
Feddie (mail) (www):
Simon-

Well, we'll have to agree to disagree as to whether the States were ever sovereign. I think the Declaration of Independence makes it quite clear that they were, as so the credentialing documents carried by the delegates to the federal constitutional convention (see, e.g., Georgia's, each of which notes at the very outset the following, "The State of Georgia, by the grace of God, free, sovereign, and independent"); but I see that there's no persuading you on this point, so I'll move on. I would, however, recommend Alexander Stephens's "A Constitutional View," if you're really interested in this issue. I think anyone who is seeking historical truth can only walk away from that book convinced that the States were indeed sovereign in their own right as an original matter.

Second, I could not disagree more with your assertion that "the Frames and Founders were not the relevant 'public'" Who in the hell cares what "people who were neither classically trained nor particularly well-educated" thought? They played no role in the constitutional-ratification process, and as such their "opinions" (which would be based on either ignorance or emotion) are meaningless. With respect, I really think you have no idea what life was like at the time of the founding period.

Third, the Constitution does not need to be sold like some sort of cleaning product. It derives its legitimacy because that's the deal that was struck between the states (or "the people," if you prefer). If you don't like the current constitution, then convince enough folks to scrap it and start over. Otherwise, everyone is bound by that compact, as it was originally understood and formed.

Finally, I frankly don't care what legislators intend when a law is passed, and I care even less about what the public thinks. I care only what the words enacted mean. Words have a reasonable range of meaning, and while there is certainly room for debate within those parameters, unexpressed intentions are meaningless. Intentions are not passed into law, words are. And that is what one should seek to interpret. Otherwise, we're just playing a sophisticated form of psychic hotline.
8.20.2006 7:12pm
frankcross (mail):
The two greatest selling points for originalism is its commitment to some sort of democratic principle and its ability to adequately constrain choices by unelected judges. The latter arguments have been rehearsed ad naseum

I curious what evidence there is that originalism constrains choices by judges. What I have seen is to the contrary.
8.20.2006 8:27pm
Medis:
STM,

Absolutely. I agree with Jack Balkin (and others) on this point: original meaning originalism is in fact compatible with a "living" Constitution. Indeed, I think that is clearly part of the design of at least certain parts of the Constitution--that the Constitution would lay out general principles/standards, but then largely leave the matter of how to apply those general principles/standards to the judgment of those who are actually confronted with a particular issue.

And that decision makes a lot of sense to me--the Constitution is often more a heuristic than an algorithm, and it seems to me that is a large part of why it has lasted and thrived.
8.20.2006 8:37pm
Medis:
By the way, I personally find that the greatest "selling point" of originalism is that it makes sense of having a written constitution with well-defined amendment rules.

In contrast, whether or not it is pro-democracy and anti-judges sorta depends on what the Constitution actually says (and on both issues, it is a mixed bag at best).
8.20.2006 8:41pm
GrandCRU (mail):
I did not [intend to] equate vague or ambiguous with "absolutely no limits whatsoever," but thanks for the grammer lesson anyway.

Sorry for the unnecessary "grammer" lesson.
8.20.2006 8:52pm
Mark L (mail):
Feddie/others:

One question I have always had for those who argue the 'common law terms of art with rich histories that must properly frame their understanding' theme, even while I agree with it, is:

If these were understood as common law terms of art, which had a rich evolutionary history of meaning, shouldnt it be assumed that the Framer's expected that process of gradual accretion or evolution in meaning to continue -- for the common law to reflect the wisdom of the ages rather than the wisdom of all the ages until 178_ (fill your date for Const or amendment here)...?
8.20.2006 8:58pm
Mark L (mail):
Feddie/others:

One question I have always had for those who argue the 'common law terms of art with rich histories that must properly frame their understanding' theme, even while I agree with it, is:

If these were understood as common law terms of art, which had a rich evolutionary history of meaning, shouldnt it be assumed that the Framer's expected that process of gradual accretion or evolution in meaning to continue -- for the common law to reflect the wisdom of the ages rather than the wisdom of all the ages until 178_ (fill your date for Const or amendment here)...?
8.20.2006 8:59pm
GrandCRU (mail):
Frank Cross: All those resources are the materials of textualism.

I think we're talking about different kinds of textualism, one with a narrower evidentiary focus than the other because the purposes are different: one is looking to identify the operative meaning of what is law; the other is looking for the inner psychological states of individuals that are not identifiable in positive law.
8.20.2006 8:59pm
GrandCRU (mail):
Frank Cross: I curious what evidence there is that originalism constrains choices by judges. What I have seen is to the contrary.

For someone who understands methodology quite well, I find this a bizarre comment. Your inability to see the constraint is due to the fact that you are looking at the choices originalists make rather than the choices they are not making (perhaps because of the constraint). The question is whether the choices they are not making outweigh the decisions they have made.

Certainly one could say they are not "constrained" because they are equally free to act, but this is just a rephrase of the tautology "judges are judges". Besides, one could say they are "constrained" because they are creating fewer externalities through adjudication. Moreover, to the extent they are mindful of the norm that one ought not create such costs lightly, one might also say they are "constrained".

Given that a judge who is mindful of the costs judicial decisions impose on other institutions and on political coalitions (and so rarely and prudently imposes them) is commonly considered to practice "judicial restraint," doesn't your argument come down to naked semantics?
8.20.2006 9:17pm
Marcus1 (mail) (www):
But of course, you don't need originalism to make sense of having a written constitution.

The Living Constitutionalist position, as I understand, is that ambiguity in meaning should be resolved with an eye on contemporary norms and realities. You might describe it as a "middle way;" it assumes that you want a written constitution, but then you also want some leeway for future generations to adapt without constantly having to reratify the entire thing. That is, you wouldn't want an "algorithm," even if it were possible. Since that's not possible, the true substance of the debate is extremely unclear anyway, but the point is that this living Constitution agument is anything but inconsistent with the idea of a written constitution.

That is to say, I don't think originalism makes sense of anything; it's simply a radical theory of interpretation.

The biggest selling point of originalism to me, though, is that it's theoretically simple. It's constantly in search of a single and unified theory of interpretation that discounts as much as possible, while meeting the political objectives of its adherents (sounds cynical, but I think it's true). I think this theoretical simplicity also helps it achieve the illusion of being somehow logically necessary, something which its adherents also seem to feel is important.
8.20.2006 9:20pm
Marcus1 (mail) (www):
(That last comment of mine was in response to Medis' comment re: a written constitution, not GrandCRU.)

As to judicial restraint, I also don't think either method is more restraining, particularly since people freely choose their judicial theory in the first place.

I also don't think total/complete/100% judicial restraint is a valid, wise, or historical objective, though. It is the weakest branch of government, but it's still a branch, and I think we benefit from its influence in moderation, particularly as a defender of civil liberties and a check on the Tyranny of the Majority, which the courts were always intended to be.
8.20.2006 9:35pm
frankcross (mail):
No, my argument comes down to the evidence. By constraint, I mean driven to produce a particular outcome, even if contrary to their personal preferences. I trust that is roughly the same as your interpretation. The question is whether originalism has this effect or if it is so malleable that justices can manipulate it to suit their preferences.

While much opinion has been spilled on the topic, there is also a little systematic evidence. Segal &Howard, 36 Law &Soc'y Review 113, coded briefs for originalist arguments and then examined their use by justices and found that conservative justices used originalism to reach conservative results and liberal justices used originalism to reach liberal results. A different approach was used by Ward Farnsworth 104 Mich. L. Rev. 71. He compared statutory and constitutional criminal law decisions. He found that justices had the same proportion of conservative to liberal outcomes in both, which led him to the conclusion that theories of interpretation (including but not limited to originalism) are not driving outcomes.

This research is not dispositive, but it's the only systematic testing that I'm aware of on the constraining effect of originalism
8.20.2006 9:40pm
Feddie (mail) (www):
Mark L.-

I think it gets back to the principle/application of principle distinction. If the evolution of a principle embodied in a common law term of art fundamentally changes over time, then this new principle is to be rejected out of hand, as it was never agreed upon by the States or envisoned by the founders/framers. If there are cases from England subsequent to 1791 that involve the application of the 1791 principle, then they might be instructive in a similar case concerning our Constitution.

The notion that the founders/framers intended for the Constitution to be some sort of evolutionary document, whose meaning was to change over time--to meet the "needs" of a more "enlightened" society--vis-a-vis a common-law-type system of "interpretation" imposed by the Supremes is patently ridiculous.
8.20.2006 9:46pm
GrandCRU (mail):
Frank Cross: By constraint, I mean driven to produce a particular outcome, even if contrary to their personal preferences.

Then we have different definitions of constraint. I think one can be constrained even if one reaches conclusions that fit with one's ideology. For me, constraint has to do with being mindful of the costs to others of one's decision-making, and taking concrete and identifiable steps toward minimizing those costs. Your definition of constraint is vague and answers nearly nothing, because one can be driven to produce outcomes that are consistent with the Constitution, which would be consistent with one's preference to adhere to his oath to uphold the Constitution.

If I recollect correctly, even the best "attitudinal" research is incoherent. So while you cite it to purport that "originalism is so malleable that justices can manipulate it to suit their preferences," what that research really reveals is that the research itself isn't capturing enough of what is happening to explain it fully. That says the research is faulty, not that originalism fails to lower costs imposed by judges on other political institutions (for instance, by resulting in opinions that are more narrowly focused, regardless of their outcome, or by limiting the range of policy arguments that can be pressed during oral argument before the Supreme Court).
8.20.2006 9:56pm
Bruce Wilder (www):
James Lindgren: "when you wrote that the amendment was designed to "protect" voting rights, I thought you meant protect by guaranteeing the right to vote. But if all you meant was that it was designed to 'promote' voting rights, not provide a legal right to vote, then we are in agreement."

We could probably split hairs in a similar way over whether speed limits on highways really "prohibit" speeding, since they don't actually prevent speeding, they just provide good advice and some remote possibility of being ticketed and fined.

My deeper point about Constitutional interpretation derives from the context or example of the "one-man, one-vote" apportionment cases of the early 1960's.

I don't think you can honestly get from the text and original meaning or (narrowly construed) original intent of the 14th Amendment to the interpretation and decisions offered by the Court in the apportionment cases, without invoking other principles of interpretation or decision-making. Some of the critics of those decisions insisted that the 14th amendment did not touch on voting rights, but, of course, the Amendment did touch on voting rights, and quite directly, as you and I agree. That's not the problem. The problem is one of providing a remedy; the 14th Amendment does not authorize the Court to be the instrument of the Amendment's implementation; I think it is fairly clear that Congress is intended to be that instrument -- at the time of enactment, Congress was being quite choosy about which representatives it seated from former rebel States, so the language of Section 2 probably did not seem impractical at all.

As it often does, the Court invoked principles of practicality and equity in deciding the apportionment cases. The lawyers seeking reform deliberately chose extreme cases of malapportionment, to press the practical and equity issues to the front and center. It worked.

As far as making the Constitution work effectively as a constitution, I think the Court did the right thing in the apportionment cases. The Court confronted decay in vital institutions of the political system -- decay of a potentially fatal kind -- and the Court acted boldly and decisively to correct the problem. Principles of textual interpretation took a backseat to practical necessity and equity, but they did not get thrown out of the vehicle altogether; taking a broad view of the intent of the 14th Amendment, the Court was right on track in addressing voting rights on the basis of the 14th amendment; voting rights are within the scope of the Amendment. As far as legitimacy is concerned, it helped that the Court had assumed a role in the enforcement of the 14th amendment much earlier, and in questionable causes dear to reactionary hearts.

It seems to me that originalism's more ardent advocates and the loudest critics of a living constitution are hostile to the long and often convoluted precedental history of interpretation, and to the principles of practicality and equity, which so often figure prominently in that history.

I'd like some advocate of originalism as a legal theory (not an historian's theory) explain how it would work in some landmark cases, where either the Constitution has been made to work well by the stewards of the Supreme Court (as was the case, imo, in the apportionment cases) or where the Supreme Court acted badly in the judgement of history (as in the Dred Scot case, where original meaning figured prominently in Taney's opinion).

The Constitution is not just a document, attracting the attention of amateur philologists, it is a working constitution, an institutional framework and mechanism for our national politics. A method of interpretation has to satisfy more than historical accuracy; it has to be able to make that institutional mechanism work well, so that the nation's politics work well.

Originalists frequently argue that originalism provides a fixed meaning, and others argue for the flexibility of abstract terms. I want to see someone get down to concrete, historical problems and decisions, and show me how originalism would make the Constitution work well, or not.
8.20.2006 9:59pm
GrandCRU (mail):
I want to see someone get down to concrete, historical problems and decisions, and show me how originalism would make the Constitution work well, or not.

Then vote for a President who will appoint more originalists to the Supreme Court.
8.20.2006 10:05pm
GrandCRU (mail):
n the Dred Scot case, where original meaning figured prominently in Taney's opinion).

Dred Scott isn't an "originalist" decision. Any originalist can point out that Taney was in fact relying on substantive due process protection for a property interest slaveholding, which is not in the Constitution, and he prevailed in concoting this right by avoiding the application of real originalist analysis to the case. As one of the dissents in Dred Scott pointed out, the orignalism of the Court's opinion was faulty. There were free black citizens in a number of States at the relevant time period. Justice Scalia had addressed this question more than once.
8.20.2006 10:13pm
Medis:
Marcus1,

As I noted above, I agree with Jack Balkin that original meaning originalism is not incompatible with a "living" constitution. So, I further agree that having a "living" constitution is not incompatible with having a written constitution. But I do think it is hard to abandon originalism entirely and still explain why we should have a written constitution with amendment rules.
8.20.2006 10:26pm
Mark Field (mail):
I could not disagree more with your assertion that "the Frames and Founders were not the relevant 'public'" Who in the hell cares what "people who were neither classically trained nor particularly well-educated" thought? They played no role in the constitutional-ratification process, and as such their "opinions" (which would be based on either ignorance or emotion) are meaningless.


I don't understand this at all. The whole point of ratification in conventions was to obtain ratification by the "supreme authority of the people themselves". Hence, Madison on June 5, 1787:

"Propos. 15 for "recommending Conventions under appointment of the people to ratify the new Constitution" &c. being taken up.

Mr. SHERMAN thought such a popular ratification unnecessary: the articles of Confederation providing for changes and alterations with the assent of Congs. and ratification of State Legislatures.

Mr. MADISON thought this provision essential. The articles of Confedn. themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Congs. especially where the former are of posterior date, and the decision is to be made by State tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves."

In the debates again on July 23, others made similar points:

"Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and can not be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government."

"Mr. KING .... preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes &doubts concerning the legitimacy of the new Constitution..."

And to let Madison have the last word:

"Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel &dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null &void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation."

If the point of the ratification process was to obtain consent of the people -- the sovereign power in a republic -- then I don't see how we can ignore what they thought.
8.20.2006 10:38pm
frankcross (mail):
grandcru, we do have different definitions. I would just make two points. First, the attitudinal research is by no means incoherent. It's imperfect but plenty good to determine that outcomes are not being driven by interpretive method. It's pretty clear that originalism doesn't consistently compel conservative justices to reach liberal outcomes (or vice versa). Though this is not to say it never happens, just not often.

Your definition seems to go to the content of opinions. That's an interesting point that the attitudinal research does not even attempt to capture. You might be right about originalism's effect there, but it's by no means clear. Sunstein, of course, has the opposition view -- that originalism produces fundamentalist decisions that are too broad, rather than minimalism. That's a fascinating and important question that bears investigation.
8.20.2006 10:53pm
Feddie (mail) (www):
Mark-

I don't see that we disagree (although we may be talking past one another). The people were represented at the state ratification conventions, which I've already indicated is the best of evidence of the Constitution's original meaning.
8.20.2006 10:53pm
Mark Field (mail):
Mark-

I don't see that we disagree (although we may be talking past one another). The people were represented at the state ratification conventions, which I've already indicated is the best of evidence of the Constitution's original meaning.


I agree that the people were represented in the conventions. My conclusion, though, is that any discussion of original meaning therefore has to include the entire people. This would require not just evidence from the conventions themselves, but all contemporaneous discussion.

In the interests of full disclosure, this is, for me at any rate, an academic point, since I don't agree with any form of originalism except perhaps Prof. Balkin's "living Constitution" form.
8.20.2006 11:05pm
Simon (391563) (mail) (www):
Frank-

My deepest, deepest apologies. I'm quite mortified that you would think I actually believe that originalism actually constrains judges. Of course it does not, at least in any meaningful way. I simply meant to flag it as one of the arguments that proponents of originalism most often advance.

Apologies again for my miscommunication.

Simon


PS - Feddie, I haven't forgotten about you. I'll get a response posted soon.
8.20.2006 11:06pm
Hugo Black (mail):
Finally, you seem to be under the mistaken impression that the Constitution was meant to form a democracy. It wasn't. The founders/framers established a constitutional republic that was to be run by society's elite.

Unfortunately for them, and fortunately for us, Feddie, they didn't achieve their desires with what they wrote. They actually screwed up if that's what they were trying to do. But, in any case, the cat is out of the bag.
8.20.2006 11:08pm
Feddie (mail) (www):
Mark-

I am still not sure that we disagree. To the extent that you are suggesting that other documents from the founding period (outside the drafting or ratification conventions) should be considered in constitutional interpretation in evaluating the Constitution's original meaning, I agree (see, e.g., the Federalist and anti-federalist papers). Indeed, I would agree that any learned opinion from the founding period is relevant to the inquiry. As I am sure you would agree, what an originalist seeks is the generally understood meaning of the text in question. My point of disagreement is whether one should consider Fred the blacksmith's opinion. Unless we have some reason to believe that Fred knows what in the hell he's talking about, I fail to see of what relevance his "opinion" is.
8.20.2006 11:14pm
Feddie (mail) (www):
Hugo-

Well, I agree with you to a certain extent. Although I suspect many folks from your crowd hardly view the Electoral College as democratic in nature.
8.20.2006 11:16pm
Marcus1 (mail) (www):
Medis,

Ok, you mean originalism as one tool among various others. I interpreted "originalism" as referring to the purist theory, that original meaning (or application; whichever it is, which we don't know) is the only valid inquiry. Thus, my point is simply that there's nothing inconsistent between asking additional questions and having chosen a written constitution.

Incidentally, from what I've read, I wouldn't call Balkin an "originalist," because I don't think his version of originalism is what the theory has been. I think it has been a theory of original application, and that really, its relevance as a theory depends on it being such. Why? Because that's the only way you have a real debate, between those who wantapplications in keeping with our deeply rooted history and traditions, and those who want a more liberal view. If originalism just means that you think we shouldn't be redefining words 200 years later, then we hardly have a debate.

Indeed, in the same way that Balkin says that everyone is a living constitutionalist, I think the same could be said about originalism, when it comes purely to "meaning." I've never heard anybody say that we should be redefining constitutional language. It's simply that the language should sometimes be applied broadly, even if our framers would not have. So maybe we're not all just living constitutionalists, we're all originalists too. At least under Balkin's theory, I think the vast majority of us are.
8.20.2006 11:21pm
Mark Field (mail):

My point of disagreement is whether one should consider Fred the blacksmith's opinion. Unless we have some reason to believe that Fred knows what in the hell he's talking about, I fail to see of what relevance his "opinion" is.


We do disagree. In my view, "original meaning" interpretation must, at least in theory, include the view of the village smithy under his spreading chestnut tree. His opinion is relevant precisely because the point of ratification in convention was to obtain the authority of the entire people. Including Fred.
8.20.2006 11:25pm
Feddie (mail) (www):
All-

I think it's important to keep in mind that the principle/(unforeseen) application distinction is often a ruse used by living constitutionalists (like Balkin) to undermine the Constitution's original meaning. I mean, come on, for Balkin to argue that Lawrence and Roe can be justified under the original meaning of the Constitution is breathtakingly absurd. A good example of how a long-standing constitutional principle is to be applied to an unforseen situation is the Kyllo decision. There, the original understanding of an unreasonable "search" was properly applied to the government's use of a thermal imaging device.

In contrast, what the living constitution crowd seeks to do is redefine the original meaning of text under the guise of "application." If the meaning being applied is new, then that's judicial legislation, folks, it is not the original meaning.
8.20.2006 11:34pm
Feddie (mail) (www):
Mark-

Well, even if you're right (and, respectfully, I don't think you are), Fred's ass is outnumbered, so his view is ultimately of no import.
8.20.2006 11:36pm
Simon (391563) (mail) (www):
Feddie-

I suspect the truth is that we are talking past each other on more issues than one. (Although I will note in passing that Georgia's comments on its own sovereignty aren't at first blush any more persuasive in 1776 than they were in 1861.)

To the larger point: You all but say democracy doesn't matter. Query, then, what underlies our "sovereign" states? What, or who, gave the attendees at Philadelphia or the state ratifying conventions the authority to bind their fellow citizens and future generations to the text of the Constitution? Of course the "ignorant" and "emotional" citizens played no direct role in the creation of the Constitution; but that's hardly the same thing as saying they played no role at all.

Finally, how do you think that judges should go about determining "what the words enacted mean"? Words do in fact have reasonable ranges of meaning, and those ranges contain a multitude of possible decisions. And meanings are contested, confused, and unclear, especially when the "public" passes on complex issues of like "equal protection" or "due process" (or "public use").

So, with all respect, your closing rant about intentions and words and psychic hotlines is quite beside the point, and again I ask again question:

A Congress passes a law that has a meaning among its members of X, but for which the "public" meaning is ~X, hopelessly muddled, or undiscoverable. What result?
8.20.2006 11:44pm
Marcus1 (mail) (www):
Mark,


Don't most modern views of the legitimacy of government hold that it doesn't come from any strict one man one vote democratic choice, but rather from some sort of basic rationality/fairness in the system, combined with general acceptance by the people?

Other thoughts,

I wonder how the debate on Bush's signing statements fits into this one. It's the same fundamental question: who gets to control what a document means? Now Bush seems to think that his view has some special importance, to balance the intent or meaning of Congress. Apparently from his dissent in Hamdan, Scalia agrees. Is this all consistent with originalism? Or should that be entirely irrelevant? I don't know if this has been discussed here. It would seem that signing statements would be a terrible affront on originalism as a pure and unassailable theory.

Another question: Does the theory of originalism, as applied to statutes, also now mean that congressional intent is entirely irrelevant? Does that make it now entirely indistinct from texualism? Is that good and necessary?

The problem for originalists, I think, is that if we get to the real debate -- should we apply constitutional phrases as they'd have been applied 200 years ago, or should we apply them in a way that makes sense today? -- then the originalist position is immediately revealed as absurd. The only way it survives, thus, is by posing as a platitude, that the original "meaning" has to be what counts.
8.21.2006 12:23am
Hugo Black (mail):
Well, I agree with you to a certain extent. Although I suspect many folks from your crowd hardly view the Electoral College as democratic in nature.

At least three flaws with the Constitution:

(1) It did not foresee demographics. The Electoral College is a great example of that. It doesn't do what it was intended to do. The democracy is out of balance. I won't recite the figures, but what we have instead of 'tyranny of the majority' is 'tryanny of the minority', a minority that (for various reasons) is an energized and wealthy coalition which is directly opposed to the majority.

(2) Because it did could not foresee the role of modern media in politics, it also could not possibly address the impact wealth would have on the process*.

(3) And it is too hard to amend. What needs to to be amended is the amendment process. A small minority easily stall the process. And it's even harder to begin and coordinate the process. A massive amount of political energy in inverse proportion to money.

I don't know who the "folks from my crowd" are; I'm just one person thinking about what is best. But I believe we still haven't lived up to the promise of what we wrote.

*What they created with Freedom of the Press reminds of me of a Chinese story. A guy loses his horse. His neighbors told him that was too bad, what bad luck. He says maybe. The next day the horse comes back with seven wild ones. His neighbors say how lucky he is. He says maybe. The next day his son, riding one of the horses, falls off and breaks his leg. His neighbors marvel at his ill luck. He says maybe. The next day the King needs men to fight a war, and is drafting soldiers from the villages. But his son can't go because his leg is broken.
8.21.2006 12:29am
Marcus1 (mail) (www):
Feddie,

>I mean, come on, for Balkin to argue that Lawrence and Roe can be justified under the original meaning of the Constitution is breathtakingly absurd.<

What if Lawrence instead involved a law that made all sex illegal, and a married heterosexual couple were arrested and thrown in jail for having sex? Would that be constitutional under the original meaning of the Constitution? Would it be entirely false to say that such a law deprived people of their liberty without due process of law?
8.21.2006 12:32am
Medis:
Marcus1,

I agree that original meaning originalism is likely to be far less controversial than some other forms of originalism. But as you suggest, I think it gives jurists one additional tool. And perhaps as importantly, I think it can help put all sorts of jurisprudence on a more solid theoretical footing.

Feddie,

You write: "I think it's important to keep in mind that the principle/(unforeseen) application distinction is often a ruse used by living constitutionalists (like Balkin) to undermine the Constitution's original meaning."

I don't think it is a ruse. You may disagree with their sense of the original meaning of the Constitution, but I think it is quite sincere.

You also write: "If the meaning being applied is new, then that's judicial legislation, folks, it is not the original meaning."

I think this shows a fundamental misunderstanding of how language works. In a nutsell, intension (AKA connotation) can remain fixed while extension (AKA denotation) changes. So, a new extension/denotation does not imply a new intension/connotation.

You are right, though, that requiring only that intension remain fixed, and not both intension and extension, may delegate more authority to later constitutional decisionmakers, including judges insofar as constitutional provisions are judicially enforceable.

But I think it is important to note how this fits within our basic constitutional framework: to determine the extension of legal terms (i.e., to apply them) on a case-by-case basis is exactly what judges do. And so the fact that this form of originalism gives this particular power to judges is not exactly a reductio ad absurdum--indeed, it makes sense of the Constitution vesting the judicial power of the United States in a separate branch of government.
8.21.2006 1:02am
Mark Field (mail):

Mark,


Don't most modern views of the legitimacy of government hold that it doesn't come from any strict one man one vote democratic choice, but rather from some sort of basic rationality/fairness in the system, combined with general acceptance by the people?


I don't actually know what most modern views hold, though you may very well be right and I probably agree. If Feddie is talking about whose meaning is relevant in an originalist context, though, I think we'd have to agree that the intention of that time period would be determinative. IMO, the quotes I gave above indicate pretty clearly that the Framers deliberately sought the approval of the entire people, so "original meaning" would have to include them.

That's not inconsistent with a claim that most people of the time may very well have had no more than a "general acceptance" of the proposed system. Part of the originalist challenge would be demonstrating whether that was true and what implications it might have for interpretation. Since I'm conveniently not an originalist, I don't have to worry about that. :)
8.21.2006 1:24am
DeezRightWingNutz:
I guess I agree with Sunstein, as quoted by frankcross:


Sunstein, of course, has the opposition view -- that originalism produces fundamentalist decisions that are too broad, rather than minimalism. That's a fascinating and important question that bears investigation.


because in answer to Bruce Wilder:


Originalists frequently argue that originalism provides a fixed meaning, and others argue for the flexibility of abstract terms. I want to see someone get down to concrete, historical problems and decisions, and show me how originalism would make the Constitution work well, or not.


I don't care if originalism doesn't make the Constitution "work well." I don't know the details of the Dred Scott case beyond what my high school history textbooks included, but I know the results of the ruling were repugnant, and I bet that Bruce thinks that this decision didn't "work well." I agree that treating humans as chattel is repugnant, but I think what doesn't "work well" is basing an answer to a ConLaw question on a belief that a policy is repugnant. That said, I don't know what the correct ruling in Dred Scott was or should have been.

Finally, Prof. Cross, a question...

Does the UT law school cancel classes the Monday following a football victory over OU? If so, I think you can draft your syllabi confident that you can deliver your lectures as regularly scheduled, as the Sooners are going to stomp the Longhorns.
8.21.2006 2:01pm