Originalism Debate Update:
In a post entitled Constitutional Authority and Theories of Constitutional Interpretation, Larry Solum responds to several recent contributions to the debate over originalism triggered here on the Volokh Conspiracy. I highly recommend Larry's latest post, in which you will also find links to the various responses that have been posted elsewhere in the blogosphere.

Because I am now completely enmeshed in finishing a draft of my con law casebook before moving to DC next week, I cannot take the time now to post on this issue myself. Nor can I respond to the accuracy of my colleague Marty Lederman's recent characterization of my explication of originalism. Of course, I disagree with Brian Leiter's claim that "Originalism, I'm afraid, is still the theory of interpretation without a theoretical justification." I imagine what he means by this is that originalism lacks an adequate justification that he finds persuasive. Fair enough. I feel the same way about nonoriginalist methods of interpretation. But Brian's choice of wording also suggests, perhaps unintentionally, that no originalist has undertaken to provide such a justification. Given my lengthy normative defense of originalism in my book, Restoring the Lost Constitution, I cannot accept the accuracy of this claim, if it is this was indeed his original intent.

(civil comments only please)
tbaugh (mail):
It seems to me that "public meaning" originalism has been around a very long time--indeed, was once the orthodox view:

"The constitution is eminently a popular instrument, binding according to its terms, and requiring for their interpretation such rules as will not warp its sense from what its language shows it probably appeared to those who adopted it."

People v Blodgett, 13 Mich 127 (1865)(Justice Campbell)

Justice Cooley (Michigan Supreme Court) in his book Constitutional Limitations:
"[T]he constitution, although drawn up by a convention, derives no vitality from its framers, but depends for its force entirely upon the popular vote. Being designed for the popular judgment, and owing its existence to the popular approval, its language must receive such a construction as is most consistent with plain, common sense, unaffected by any passing excitement or prejudice."

Cooley again, in the Blodgett case: "There are certain well settled rules for the construction of statutes, which no court can safely disregard. Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it....The fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern....These rules are especially applicable to constitutions; for the people, in passing upon them, do not examine their clauses with a view to discover a secret or a double meaning, but accept the most natural and obvious import of the words as the meaning designed to be conveyed."

And Justice Story, A Familiar Exposition of the Constitution of the United States: the Constitution "is to be endeavoring to ascertain the true sense and meaning of all the terms; and we are neither to narrow them, nor to enlarge them, by straining them from their just and natural import....It is the language of the people, to be judged of according to common sense....[T]he people have established it and spoken their will; and their will, thus promulgated, is to be obeyed as the supreme law."
8.21.2006 1:50pm
In your book do you address what confers normative authority?
8.21.2006 3:06pm
Randy Barnett (mail) (www):
8.21.2006 3:12pm
Marcus1 (mail) (www):
I have to admit, I'm not sure what Solum was talking about in a lot of that. The two questions which Leiter would distinguish between, I think, are these: 1. Is the Constitution, whatever it means, binding? and 2. What does the Constitution mean? His point, then, is that the answer to question 1 does not determine the answer to question 2, which could be determined in any number of ways. Moreover, Leiter suggests that the supremacy of originalism on question 2 has not been established.

I think another thing which could use a lot of clarification in this debate is the general broadness and ambiguity in any words' meaning. If you listended to originalists, I think you'd get the impression that words universally have just one specific meaning in any given situation, and that it's merely a matter of figuring that specific meaning out. But of course, that's nonsense; combinations of words rarely if ever have any such specific meaning. Even settling on original meaning, thus, really resolves extremely little, since phrases like "Congress shall pass no law respecting an establishment of religion," always "meant" something very broad and imprecise. I'm aware of no Supreme Court holding that would actually have been foreclosed by the original "meaning" of these words.

That's to say, the only thing "original meaning" really requires of a litigant is that you would have had a textual argument at the time of ratification. But are there really very many cases where one side couldn't come up with a textual argument? If they could, then their view is consistent with original meaning; the only question then is what should be the proper application. It's for this reason that I think "application" rather than "meaning" is the real question, and the real issue of debate.
8.21.2006 3:25pm
Although if I recall correctly, Barnett does not so much articulate a theory of constitutional "authority", but more a theory of constitutional "legitimacy", and effectively leaves it up to the individual's conscience to supply the normative force.

But it has been a bit since I read the book, so I may have garbled that.
8.21.2006 3:30pm

I don't know if you have read Barnett's book, but he is certainly a counter-example to your claim that "[i]f you listended to originalists, I think you'd get the impression that words universally have just one specific meaning in any given situation, and that it's merely a matter of figuring that specific meaning out." He has an extended discussion of what to do when the original meaning is incomplete or vague, which, as I recall, basically amounts to construing the Constitution in a way that enhances its legitimacy without contradicting whatever meaning we can actually ascertain.
8.21.2006 3:36pm
tbaugh (mail):
By the by, IMHO Keith E. Whittington's brillian book, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review is essential reading on the subject.
8.21.2006 3:50pm
Richard Bellamy (mail):
If I were, say, Harry Reid, and wanted to grandstand for the Democrats, I'd propose a new Constitutional Amendment affirming the entire Constitution.

"Are you for or against the Constitution?" Democrats could ask. "That Republican won't stand up and re-affirm his commitment to the Constitution!"

After scoring lots of political points, if it actually succeeded, it would eliminate the impact of most Originalist arguments, since you'd have to consider the "Original Meaning" of the new Amendment as well, and how it (like the 14th Amendment) changes the meanings of the others, as well.
8.21.2006 4:39pm
Philip Huff (mail):
As a historic matter, the "original intent" was supposed to be discerned from the text and its ordinary meaning. I think a lot of confusion would have been avoided had this form of 'objective intentionalism' not been confused with the idea of subjective intent (which would seem to render the text almost useless).

My thoughts here are somewhat tentative, but one thing that gave me pause about originalism as an initial matter was imagining that the Fourteenth Amendment was ratified today. What would be its "original meaning?" In truth, we'd probably have radically different ideas of what it meant. But language evolves, and the fact that phrases like "due process of law" and "privileges [and] immunities" have no fixed meanings in the legal vocabulary today, does not mean the same was true in 1868. The drafters of a constitution are unlikely to use words that do not have a discernable, lawyerly range of meanings, unless there is simply no relevant legal tradition to rely on. When that's the case, I think that in order to resolve a dispute over a phrase's meaning, we would probably have no choice but to rely on the official statements of those promoting it, so a wholesale rejection of legislative history (Scalia-style) is, I think, incompatible with even "original meaning originalism" (I really wish we could just call it 'originalism,' and find a different name for so-called 'original intent').

As I said, my views are irresolute, and I'd love to get someone else's reaction to this.
8.21.2006 5:07pm
STM (mail):
I think one has to acknowledge that Prof. Barnett’s theory allows for considerable flexibility, albeit consistent with his view of original meaning. I wonder if he might be willing to comment on a question, however. Although Prof. Barnett has a particular view about the original meaning of, say, the Commerce Clause or the Ninth Amendment, for which he makes an argument and amasses a body of evidence, I think he would concede that his view is sharply disputed by at least some competent constitutional historians and legal scholars, who advance good faith arguments and evidence to the contrary. Let’s assume, for the sake of argument, that this state of affairs is intractable, and the authentic original meaning of a particular topic in constitutional law will remain in dispute indefinitely. If so, what, if anything, follows for his theory? Doesn’t it imply that original meaning is practically irrelevant for whatever issues (if any) fall within this category?
8.21.2006 5:29pm
Marcus1 (mail) (www):
Richard Bellamy,

On that note, I was struck by this comment too:

[I]n Kurt Lash's very interesting originalist work on the religion clauses, he argues that since the clauses were applied to the states in the 14th amendment, the relevant evidence of original public meaning must include the understanding of the clauses that prevailed at the time the 14th was adopted--even if that varies from the understanding of 1789. Lash calls this "the second adoption."

I'm familiar with this suggestion, but it occurs to me as I read it: isn't this a pretty wild idea? So now you pass a 14th Amendment, applying certain Constitutional requirements to the states, and now this creates a situation requiring two different parallel interpretations of the the same incorporated phrases, one for federal questions and one for state questions?

Seems pretty complicated to me. But then, so does this general idea, I'd have to admit, that every phrase doesn't just mean what it says, but means specifically what an average person would have thought it to mean in a specific year. Isn't this a rather weird way to read a document?

A suggestion: how about saying instead that if the "meaning" of a word evolves over time, the onus is on those who want to recreate the old "meaning" to pass a constitutional amendment? I can think of at least three benefits: 1. This way, we would require people to write things in ways whose meaning would endure over time... something we have a lot of reasons to think the framers did in the first place! 2. This way, you have a document which actually means what it says when a person reads it. 3. This way you don't have to reratify the constitution every day to say that "liberty" or "due process" mean what they mean today, not what they might have "meant" a long time ago.

I tend to agree with Leiter that the framers had a right to bind us to their constitution, but they didn't have the right to bind us to their originalist intentions, at least without making this entirely clear. That's to say, if there had been some clause in the Constitution saying that the original intentions (or interpretation of the average person at the time) was completely binding, then that would settle the matter. But there's not, and there never would have been, and that's the point.
8.21.2006 5:30pm
Philip Huff (mail):
We read every document with its historic context in mind. If some writing from the 18th century speaks of a "gay man," no one would interpret that as referring to a homosexual, even if the words, by mere happenstance, have 'evolved.' There was, of course, no way for anyone living at the time to know how words would change over the centuries, and it undermines the careful amendment process if the Constitution can be fundamentally and dramatically altered simply because society begins to use words differently. Moreover, phrases that had a clear meaning long ago do not necessarily have any particular meaning today, except insofar as case law is concerned, and that form of 'interpretation' is completely circular.
8.21.2006 5:41pm

You say: "we would require people to write things in ways whose meaning would endure over time... something we have a lot of reasons to think the framers did in the first place!"

How would this work exactly? Suppose you wanted to write something right now with a meaning that would endure over time ... if the terms you use will be given their future meanings, how is this even possible?
8.21.2006 5:41pm
David Schraub (mail) (www):
"[I]f it is this was indeed his original intent."

Deliberate word choice? Because I see his blog post as an evolving, living document myself... :-)
8.21.2006 5:52pm
Andy Freeman (mail):
One interesting property of the "interpretive theories with theoretical justification" is that they lead to a constitution that can't be amended. Yes, you can change the text, but doing so is a waste of time because the text doesn't matter.
8.21.2006 5:56pm
Ship Erect (mail) (www):
if the terms you use will be given their future meanings, how is this even possible?

I don't think this is impossible: with the right turn of phrase, words gain an incredibly longlasting power, imbuing them with (immortal?) meaning. Think of "I have a dream"--it is impossible to string these words together without recalling MLK or the black civil rights struggle, even though the plain meaning of these words refers to an active imagination. The problem is that we seem to have very few talented or persuasive writers anymore, and certainly nobody in politics has the skill to craft anything other than an attack ad.
8.21.2006 6:39pm
Randy Barnett (mail) (www):
SMT asks:
Although Prof. Barnett has a particular view about the original meaning of, say, the Commerce Clause or the Ninth Amendment, for which he makes an argument and amasses a body of evidence, I think he would concede that his view is sharply disputed by at least some competent constitutional historians and legal scholars, who advance good faith arguments and evidence to the contrary.
This is sometimes true of course. But MUCH disagreement is by scholars who disagree about what an originalist claim requires, which is why the discussion now taking place in the blogosphere is important. When the debate is focussed on the original public meaning of the actual text--e.g. did "commerce" include all economic activity or just trade? -- there is much less room for disagreement. Such disagreements do exist, of course, but many fewer than you might imagine.

Most importantly, there is a there there, by which I mean a fact of the matter about which the disagreement exists. This dispute is then adjudicated by means of argument and evidence about this fact. Third parties can make up their minds by reading the evidence on both sides to see which case is stronger.

With every OTHER form of interpretation, how would such disputes be adjudicated? What sort of evidence would be offered to resolve them? I am not claiming at other forms of interpretation are wholly indeterminate. Simply that they are as easily, if not more easily, subject to persistent "disagreement." Does that mean that there is NO appropriate way to interpret a text?

Let’s assume, for the sake of argument, that this state of affairs is intractable, and the authentic original meaning of a particular topic in constitutional law will remain in dispute indefinitely. If so, what, if anything, follows for his theory? Doesn’t it imply that original meaning is practically irrelevant for whatever issues (if any) fall within this category?

There is no more reason to think these disputes are "intractable" as any other intellectual dispute, and good reason to think this sort of dispute is more easily resolved than disputes about nonoriginalist interpretation.

But having said this, as others commentators have noted, while interpretation provides a boundary on decisions, it rarely determines the outcome of cases and controversies all by itself. This is the inevitable result of using general language to govern particular issues that may arise. There is the need for intermediate construction to apply original meaning to the facts of particular cases. I agree with tbaugh about the importance of Keith Whittington's work on this subject. I got the crucial distinction between "interpretation" and "construction" from him.
8.21.2006 6:59pm
James Lindgren (mail):
I have seen other plausible accounts of what the 9th amendment means besides Randy's (as well as many implausible ones, such as Bork's).

But frankly, Randy's evidence on the original meaning of the commerce clause is overwhelming. There are those who disagree with him, but I don't think that many fair-minded readers would find those who disagree with Randy as making very plausible arguments.

Half of the American public doesn't believe in evolution; that doesn't make their arguments plausible or render evolutionary science so indeterminate as to render it worthless.
8.21.2006 7:31pm
frankcross (mail):
When the debate is focussed on the original public meaning of the actual text--e.g. did "commerce" include all economic activity or just trade?

Yes, but what if the meaning of "commerce" changes? Just as the meaning of "reasonable" or "search and seizure" or "due process" changes with changing circumstances
8.21.2006 8:16pm
Nate B (www):
I haven't had a chance to read Restoring the Lost Constitution yet, although it sounds interesting and is now on my Amazon wishlist. Would anyone be willing to briefly summarize the kind of explanation or argument that is given there for the normative weight of the original meaning?
8.21.2006 8:45pm
STM (mail):
Well, I agree that there is a fact of the matter about which to agree or disagree. But I think one important reason that divides folks on this issue is that some of us are less optimistic about arriving at reasonably definitive historical conclusions about the Founding generations’ beliefs on matters such as the nature of individual rights and the legitimate scope of Congressional power. The fact of persistent disagreement, however, does not mean one has to throw up one’s hands up in despair. It means, rather, that constitutional issues are resolved through the process of adjudication (and perhaps elsewhere), looking to whatever sources are available, including, inter alia, evidence of original meaning, prior case law, and rational normative arguments. We generally accept the results of that process, even when we lose, because we accept the basic legitimacy of the institution.

Also, if there are conflicting but plausible accounts about the original meaning of the 9th Amendment, doesn't that open a sizeable gap in Prof. Barnett's project?
8.21.2006 9:23pm
Randy Barnett (mail) (www):

That is to ask a different question than the one I was addressing.


There is very little disagreement about the original meaning of the Ninth Amendment. Even Kurt Lash, who set out to prove that (following Akhil Amar) it was a reference, not to individual natural rights, but to the "collective" rights of states to self-government (or some such right as this) was compelled by the evidence to concede in his Texas Law Review article that the rights retained by the people included natural individual rights and also, he claims, the collective rights of states. I address his claims in my forthcoming Texas Law Review article here where I identify the 5 originalist models of the Ninth Amendment and systematically compare each with the available evidence. Most all of these models, besides the collective rights model of Akhil Amar and Kurt Lash, have been abandoned in the face of contrary evidence. And the collective rights model is not logically inconsistent with the individual rights model. The Ninth Amendment COULD be a reference to both, though I find the evidence that is refers also to collective rights of states to be very very thin.

With this relatively minor possible caveat, what disagreement now exists concerns not the original meaning of the text, but the implications of this meaning for constitutional adjudication. Justice Scalia, for example, in Troxel v. Granville concedes the existence of these types of rights but says it is for the people to enforce them through the legislative process, rather than for the Courts to enforce them. That is the tact most "originalists" now take to turn the original meaning of the Ninth Amendment into an inkblot. It is NOT evidence of the original meaning of the text.

But, like the rest of the bill of rights, the literal wording of the Ninth Amendment says nothing specific about enforcement. What it does say is that these individual natural rights are not to be denied or disparaged simply because they were not enumerated. In my view, this implies that they are to be treated in the same manner as those that are enumerated, and it is about THIS claim of mine that others disagree.

That the "other rights retained by the people" is a reference to natural rights is no longer challenged by scholars who are familiar with the evidence, though it continues to be challenged by others, including regularly in the blogosphere. Progress in originalism is possible, though it takes evidence not conjecture to achieve.

And I cannot categorically rule out the discovery of additional evidence that could upset the current consensus. To his credit, Kurt Lash was one of the few naysayers to actually find new evidence that Ninth Amendment scholars had not previously considered. This evidence had to be taken seriously and treated very carefully, which is what led me to return to the original meaning of the Ninth Amendment after working for many years on other topics. Having examined this evidence, however, I found that it supports rather than undermines the individual rights interpretation. Of course, this analysis has yet to be formally published so only those who have read my working paper on SSRN would be familiar with it. Also to his great credit, when his articles were published, in their final form, Kurt had modified his claims so as to incorporate, rather than reject, the individual rights interpretation of the rights retained by the people. Though his initial instincts ran to the contrary--and though he continues to insist that the Ninth Amendment is ALSO a reference to the collective rights of states--he did so out of respect for the evidence.
8.21.2006 10:04pm
frankcross (mail):
Sure, it's a different question but I would think it goes to the heart of any originalism. Suppose one accepts that the meaning of language changes over time, and the meaning of the Constitution changes with changes in the understanding of its language, and originalism recognizes this fact. In that case, the relevant question would seem to be the contemporaneous meaning of the term, not the original meaning.
8.21.2006 10:37pm
Randy Barnett (mail) (www):

Originalism raises many important questions--including why the meaning of a written constitution should remain the same until it is properly changed, and why it is improper for the very agents who are to be governed by this text to change its meaning on their own--but I think it is important to keep these issues distinct. I was responding to the challenge made here that questioned the very feasibility of ascertaining original meaning at all. Your question about change in meanings seems to presuppose there has been a change away from a former meaning, which further seems to assume the existence of a former meaning that has subsequently changed. Do you agree that (wholly apart from the desirability of basing constitutional law upon that meaning) ascertaining original meaning is possible?

8.21.2006 11:04pm
frankcross (mail):
Sure, if imperfectly. To me, as a legislative guy, this is just textualism. Now, I think the definiteness of language is overstated in many cases, because it is the difficult questions that tend to be litigated. But it would be silly to say that it's impossible. We have tools to ascertain meaning, with lesser or greater confidence in different cases.
8.21.2006 11:47pm
Randy Barnett (mail) (www):
No, it is not "just textualism"; it is originalist textualism, which then leads to your question above about "why originalism." I have made that normative case in my writings. As for "overstating" the definiteness of language, as commentator Marcus knows from having read my book, I have an entire chapter on that subject. That chapter begins with the following quote by Friedrich Waismann:
Ordinary language simply has not got the “hardness,” the logical hardness, to cut axioms in it. . . . If you begin to draw inferences [common speech] soon begins to go “soft” and fluffs up somewhere. You may just as well carve cameos on a cheese soufflé.
The rest of that chapter explains the relationship of original meaning originalism, and of constitutional legitimacy, to the problems of vagueness and ambiguity of language. The answers I have given to these fundamental problems will certainly not persuade everyone, but these problems have not been ignored. I fear this exchange has now led us right back to where it began here: with a very "1990s" (actually, more like the 80's) discussion of originalism that fails even to acknowledge originalist approaches that have been developed in the scholarly literature since then.
8.22.2006 12:29am
Does constition law itself require the authoritative interpreter to be an originalist while interpreting constitution law?
How does the constitution-interpreter know the answer for such a question?
Can she read constitution law in a non-originalist way and then find a pro-originalism answer,and/or vice versa? If she cannot, that is, she must at first be an originalist to get an pro-originalism answer, and vice versa, can we really know if originalism is a constitution-required interpreting method or not?
8.22.2006 1:27am
Marcus1 (mail) (www):

Not to take Medis' thunder, he's the one who had the low down on your book.


>How would this work exactly? Suppose you wanted to write something right now with a meaning that would endure over time ... if the terms you use will be given their future meanings, how is this even possible?<

Well, one way would be to use very specific language. For instance, add a sentence to the 14th amendment saying "But don't go and try to use this to let gays get married or something, because that's not cool." I'd bet you a hundred bucks that 100 years from now, the meaning of that would still be the same, and entirely clear.

And really, that's the main point. Although I'm kidding with my example, the framers clearly could have restrained judges in all kinds of ways if they'd wanted to, being very specific about what was going to be allowed and not allowed. But they didn't. Why? Exactly because they wanted a document that was flexible over time.

Still, it isn't like you'd even have to go into extreme detail. In fact, I think the Constitution is itself a great example of a document written in enduring language. In that regard, I also think the statements about its meaning having changed are extraordinarily exaggerated. Its application has changed, but I am aware of extremely few instances in which the original meaning is actually ignored. And funny enough, I don't think those cases have been pushed by liberal judges either. One of the clearest examples is the judicial creation of the "public use requirement," which extremely clearly is not the original meaning of the Constitution (or the original intent, but especially not the original meaning), yet has been pushed primarily by "originalists."

Ok, I haven't used much argument discipline in this post, so I'll summarize: 1. I don't think the meaning of the constitution has actually changed, except in very specific instances, and even then, not by theory or design, but simply by ignoring the obvious, and in denial. 2. I think living constitutionalists are in fact originalists and vice versa, so this whole debate is largely a meaningless mess. 3. Nevertheless, a Constitution can certainly be written to be exactly as constraining and consistent over time as is desired. And again, I think the meaning of the Constitution has been consistent over time, just not the application, so I think the Constitution is a good example. The primary way to make it more consistent over time, though, is to say more and be more detailed. Also, if you want, you can avoid using words like "liberty" or "due process," which by their very nature are going to have evolving applications. For instance, they could have said "Nor shall congress name an official religion, but giving government tax dollars to religious pursuits is fine, as are various state religious monuments if they're really just about our history and traditions. But the legislative branch shall have the last say."

The thing is, the framers could have said whatever they wanted to, but as is well documented, they chose to be vague, and to use words which could be interpreted in many ways. In this way, they chose to have a fixed meaning, but evolving applications. And I think that's exactly what they've gotten, and what nearly all "non-originalists" want. Again, though, this is why I think the originalist cause to undo this is actually so revisionist in nature.
8.22.2006 1:45am
After reading Prof. Leiter's explanation for why there is no normative justification for originalism, I am unconvinced. He separates the normative case for constitutionalism-i.e., constraining future majorities by reference to an earlier foundational document-from the normative case for originalism-i.e., ascertaining the meaning of said document.

Originalists have consistently held, however, that the nexus between constitutionalism and originalism lies in the need for the Constitution to have fixed and ascertainable content-if future generations may ascribe meaning to the Constitution at odds with the meaning as understood by the society that produced and ratified the instrument, then we have not "bound" ourselves to a previously adopted document in any meaningful sense.

It is, perhaps, a second-order argument; i.e., once we have agreed that constitutionalism is normatively attractive, how do we best implement and honor that commitment through the application of the Constitution to real cases? Reasonable people may disagree about this, but the claim that originalists have provided no normative justification for their choice strikes me as unfounded.
8.22.2006 2:16am
jgshapiro (mail):
Long post, but I found Solum's post fascinating. Three thoughts:

The first is what would originalists do if Congress asked the states to re-ratify the constitution in 2007 (except for those amendments that had been expressly superseded or repealed by subsequent amendments). In corporate law (my specialty), when deal documents are signed, representations are typically made as of the date that documents are signed and must be true as of that date only; they are not automatically brought forward in time to the closing. But most significant transactions close after documents are signed because intervening events must take place first (approvals, securities registration, etc.). Hence, the reps are typically "brought down" to the date that a transaction is later closed through a "bring down" certificate, which has the effect of re-making the reps on the later date.

Would re-ratification have the effect of bringing the meanings of vague concepts like due process and equal protection down to how they are presently construed by the body politic and/or by intervening precedent -- even if those constructions are patently different than the original public meaning of the words? If the normative authority of the original meaning is that the constitution was ratified based on that meaning, then it would seem the answer would be yes.

The second is what use an interpretive theory is unless the theory predicts a result almost all of the time -- and especially when the person employing it would like the result to come out differently? I read somewhere something about the doctrine of stare decisis that made a lot of sense to me: that stare decisis really only matters when the judge wants to rule against the line of precedent; the idea being that a judge doesn't need to cite stare decisis if he is otherwise inclined to rule that way anyway. In the latter case, he can just do what he wants based on his concept of fairness. Stare decisis is supposed to restrain him from doing that when what he wants is contrary to precedent: it only matters when he *disagrees* with precedent.

It seems to me the same logic applies to originalism. It only matters when you follow originalism even when you think its results are unfair or bad policy. (If you are only following it when you agree with the results, you are just doing what you like and calling it originalism.) Yet, the number of decisions I notice from the likes of Scalia and Thomas where I can see they are ruling against what are likely their personal policy preferences based on originalism are very few (Raich is a great example from Scalia; see the opinion of Thomas, Hamdi is a great example from Thomas, see the opinion from Scalia), which leads me to believe that there is not much there there in actual application.

The third is that the whole debate about originalism is semantics because the real question is what to do when an originalist encounters a line of precedent that is inconsistent with originalism. Since very few constitutional provisions have not previously been the subject of case law -- and in many cases, non-originalist case law -- it seems to me this is bound to happen virtually *every* time. If your answer is to follow stare decisis, then originalism will vanish, except perhaps for that elusive case on the meaning of the third amendment. If it is to follow originalism, then stare decisis will vanish instead for the same reason, and we will have to start from scratch in interpreting most of the constitution. And if it is to take a case-by-case approach, then we are back to "let's do what we want, and call it (modified) originalism."

So at the end of the day, I find myself skeptical of originalism, at least as a useful tool of interpretation (as opposed to an academic debating topic as to what might have been), but I am still fascinated by the first point: does the whole debate disappear if we ratify the constitution again?
8.22.2006 7:25am
Nate B (www):
TomJ, the problem with the justification you offer is that it is merely negative. That is, it works merely by ruling out the alternatives -- as you put it:
if future generations may ascribe meaning to the Constitution at odds with the meaning as understood by the society that produced and ratified the instrument, then we have not "bound" ourselves to a previously adopted document in any meaningful sense.

Of course, there's a place for this sort of negative (or apagogic) argument, but there are two traditional concerns with it:

(a) It relies on there being no other possible explanation, and this is difficult to show. It also ignores the possibility that all the existing theories are mistaken (in which case, inferring from other theories not working to the correctness of your theory would be an error).

(b) It fails to explain why the conclusion is true, since it tells us nothing about the proposition itself, focusing instead on the problems with the alternatives. It thus produces less understanding than a direct, positive argument. In this case, your argument does not show what it is about the original meaning that leads it to have binding power over us. I can't say for sure, but I suspect this may be what Prof. Leiter finds lacking. At any rate, it would certainly be a good thing to provide if you want to convince people of your views.
8.22.2006 10:57am
Randy Barnett (mail) (www):
Sorry, it was indeed you. Thanks for the correction, Marcus.

Much to agree with in your 2nd and, especially, 3rd points. Originalism is at least as predictive as the alternatives, and it is helpful for a theory of interpretation to provide boundaries within which discretion or choice is exercised. As for your third point, why abandon originalism for stare decisis? I propose trumping stare decisis with original meaning, when that meaning is being contradicted. See my paper, Trumping Precedent with Original Meaning: Not as Radical as It Sounds. (There would still be important nontrumping roles for precedent.) I agree that Scalia is not an originalist: Scalia's Infidelity: A Critique of Faint-Hearted Originalism

Finally, Marcus,
I agree with much of what you say, though I think you underestimate the content that originalism, properly understood, does provide, and therefore overestimate the degree to which the nonoriginalists on the Court are acting consistently with original meaning. That said, much of what they do can be so characterized, while Justice Scalia usually does not follow originalism when he does not want to (see paper above as to how he justifies this). Marcus, perhaps the title of my first article defending originalism, and the title of Chapter 4 of my book, may interest you: "An Originalism for Nonoriginalists."
8.22.2006 10:58am

First, thanks for giving me credit regarding Barnett's book.

Anyway, I'm satisifed that you are actually an original meaning originalist. Which I don't think is particularly shocking, given that it can accomodate a much wider range of substantive views than original intent/application originalism. And in that sense, perhaps the more interesting question is what, if anything, we can get out of original meaning originalism, if it is so accomodating (I think jgshapiro and others are also asking forms of this question).

As an aside, as mentioned above, I think one immediate thing we get is better theoretical underpinnings. Indeed, even if it only helps constitutional theorists understand and deal with the arguments of original intent/application originalists, I think original meaning originalism is useful (of course, for original intent/application originalists, this represents a threat posed by original meaning originalism).

But I also think original meaning originalism has substantive promise. In other words, maybe it will not always give definitive answers to constitutional questions, but it might at least provide important inputs into constitutional decisions (and incidentally, it isn't always an all-or-nothing situation with originalism and precedent, as lines of cases tend to evolve over time, and constitutional theories can perhaps influence that ongoing process).

In any event, we have really just started on that project, and are being slowed down in fact by this ongoing confusion between different forms of originalism. So, hopefully works like Barnett's are just a starting point, and we will see more development of these ideas in the future.
8.22.2006 11:31am
Andy Freeman (mail):
> It only matters when you follow originalism even when you think its results are unfair or bad policy.

Are other theories held to that standard? (There are, of course, theories that can't be held to that standard. That property should, of course, disqualify them, for obvious reasons.)
8.22.2006 12:12pm
jgshapiro (mail):

I'll read two articles you cited later today.

Is there an article addressing the first point? Because I have little doubt that if asked to re-ratify the constitution now, based on the current public meanings of the words used, you could find 38 states to do so. And I don't see why that wouldn't moot the debate to the extent that there is any difference between originalism and what has happened since each provision of the constitution was passed or amended. Re-ratification would essentially change the date at which you looked for original public meaning from the date of passage or amendment to the date of re-ratification. And if you are looking as of today's date, than today's catechism of constitional law, including such inventions as you see in Griswold, Loving, Frontiero, etc. would also have normative authority.

Do you disagree?

On a separate note, I wonder if the selection and confirmation of a majority justices -- not to mention the election of presidents and senators who do the selecting and confirming -- who subscribe to the modern catechism over a period of time from the date that new decisions are handed down does not also essentially ratify the modern catechism. But expressly re-ratifying it through votes of Congress and the legislatures would presumably remove any doubt as to the legitimacy of fidelity to intervening decisions.
8.22.2006 3:46pm
Marcus1 (mail) (www):

Thanks, I'll have to check it out.

To anyone interested, I just put up my long version here.
8.22.2006 7:10pm