Most arguments for originalism either claim that judges follow the original meaning of the Constitution because that's what the people "consented" to, or because doing so promotes democracy. Some originalists also claim that their methodology does a better job of constraining judges than do other approaches to constitutional interpretation. Although I am very sympathetic to originalism, I have never found any of these three claims persuasive. Even setting aside the fact that a high proportion of the people at the time did not and/or could not consent to the Constitution back in 1787-88 (women, most blacks, anti-Federalists, etc.), it is hard to see why the consent of long-dead ratifiers 200 years ago should bind us today. Democracy is also a problematic rationale for originalism, since adherence to the original meaning will sometimes require judges to strike down laws that have the support of political majorities. Finally,it may well be true that originalism constrains judges more than many other methodologies do. But if constraint is the main goal (which I don't believe to be true), it would be easy to come up with other decision rules that constrain even more. For example, judges would be most constrained if we, like Britain, simply did away with judicial review altogether.
In recent years, however, originalist scholars have sought to improve on these traditional arguments by trying to show that originalist methods of interpretation lead to better consequences than other methodologies. This short, but important new paper by John McGinnis and Michael Rappaport is a good summary of the emerging consequentialist case for originalism (also available here). Their key argument is that sticking to the original meaning of the Constitution is likely to have beneficial consequences because only that meaning was approved by a broad supermajority process (either the amemdment process or the ratification process of the original Constitution). The fact that the original meaning had to be agreed on by a broad consensus of both political elites and the general public makes it highly likely that it will benefit more people to a greater extent than any interpretive rule that judges are likely to come up with on their own. A rule that has the support of five or more of the nine Supreme Court justices is far less likely to have net beneficial consequences than one that has the support of the vast majority of the population.
McGinnis and Rappaport's case is compelling, but not without some potential weak points. To my mind, the biggest problem may be the fact that the US Constitution is so hard to amend through the formal amendment process that there is a real danger that we could be stuck with an original meaning that, although highly beneficial in its time, is dysfunctional today. A weaker objection is the fact that much of the Constitution was not ratified by as broad a supermajority as the McGinnis-Rappaport theory assumes. For example, as Bruce Ackerman has shown in a series of books, the crucial Reconstruction amendments were only ratified by the necessary three quarters of the states because several southern states were essentially coerced into ratifying by the federal government. For these and other reasons, I am not convinced that originalism should be the sole and exclusive method of constitutional interpretation. However, McGinnis and Rappaport's argument - along with similar ones by other scholars - does persuade me that there should at least be a strong presumption in favor of textualism and originalism that should be overridden only in very exceptional cases.
For those interested in further reading on this subject, I myself have made some arguments that overlap with McGinnis and Rappaport's in this recent critique of Justice Breyer's rejection of originalism. Yale Law Professor Akhil Amar - a prominent liberal originalist - has defended originalism on consequentialist grounds from a left of center perspective, most notably in his article "The Document and the Doctrine," 114 Harvard Law Review 26 (2000) (unfortunately, I don't think that Amar's important article is available on line, but if anyone sends me a link I'll be happy to post it).
UPDATE: Akhil Amar's article is available here.
I am not thrilled at the prospect of unlimited democracy, but if we abandon the idea of the Constitution as a contract across the generations, why bother to have any restraints but simple majority rule? This weird situation that has developed where judicial elites strike down the laws that they don't like (after scratching their heads for a long time to find some way to rationalize that they are "following the Constitution") while upholding laws that they do like (such as restrictive gun control laws) really reveals the non-originalist interpretive models as fig leaf power grabs.
I'm not clear what your metric is for "better results." Is it "diminished judicial discretion," which one might infer from your discussion of the Parliamentary system above?
Regardless of your answer to that question, your presentation of your argument elides an important distinction. There are those that object to originalism because they think that judges should be able to apply their own values But there is another group that is perfectly content with the idea of adhering to original meaning (you may want to clarify whether you're talking about intent or understanding), it's just that they find the indicia of original meaning profoundly uninformative (the standard "what did james madison say in his memoirs" argument comes to mind).
James Madison's take on the commerce clause doesn't become a better index of textual meaning just because more people signed off on the text itself. In fact, as more people sign a document, mathematically speaking Madison's take likely becomes more idiosyncratic, making it even less useful as an interpretive tool.
Your logic above (I limit my comment to yours present, as I have not read the attached law papers) seems to place the burden on the party asserting the Constitution is authoritative. Should not the obligation should be converse? Your premise is an interesting academic exercise, but do we need to demonstrate our Constitution is authorative? If it is not, our government is illegitimate, and the courts have no power except that they exert with the sword. Their authority can not generate from a non-authorative constitution.
The Constitution believes itself a contract, and gives specific means to alter that contract. If one purports a means of extra-constitutional amendment via judicial intervention, they are the one on whom the obligation lies to fabricate moral authority for such action.
There are those, including me, who might agree that the Constitution is a contract, but don't believe that the government is a party. In my view, the contract is between the people inter se; the government exists because of that agreement, but is not a party to it.
While that's my personal view, I think other interpretations -- e.g., that it's a special form of law -- reasonable and legitimate.
The Constitution does not refer to itself as a contract. It refers to itself as "the supreme law of the land".
Sure, but that's not very helpful with open-ended phrases like "due process". The text often is not self-explanatory, so we need to interpret it in order to apply it. That's where the disputes come in.
"A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."
If this means that the right of the people to keep and bear Arms may be infringed, Washington D.C. can outlaw private firearms completely, then not only are contracts worthless, but words are as well.
there are disputes about the text-bound meaning of almost every contract ever litigated.
also, what does due process of law mean? and while you're lecturing me on my ignorance of the text of the 14th amendment, you might note that the document actually states that the government cannot deprive you of "life, liberty, or property" without due process. if you think objective disagreement about those terms' meaning impossible, then this conversation is probably pointless.
it probably is anyways.
"Due Process" is not an open-ended phrase. It simply means the process owed.
On second thought, I should rework my assertion. "Due Process" was not an open-ended phrase until it became convenient to change it's definition to accommodate political views that could not be achieved politically.
please don't try to turn this thread into a referendum on the second amendment. please.
True, but many contracts are perfectly clear about many of their terms.
It is perfectly clear, for example, that the Constitution contemplates capital punishment in several places -- requiring due process of law to administer it, for example.
The notion that capital punishment can be "held" to violate the Consitution is sheer sophistry meant to hide a power grab by certain people who wish to turn their moral views into overriding Constituional law -- i.e. meta-law by which statutory law can be overriden.
I just find your two statements irreconcilable:
"'Non-originalists' do not think the constitution is meaningless."
"they object to the premise that the Constitution's meaning is bound by its text."
If it is not bound by it's text, then it is not bound. If it is not bound, it is meaningless.
2. While the original ratification was by a supermajority of a small minority--most white males, and a few free black males in a few states--the contract has been expanded since then through the amendment process to include the vast majority of Americans in the polity. While it is true that the Fourteenth Amendment was the result of some mildly sleazy politics, this is not generally the case with the Constitutional expansion of the franchise and rights through the amendment process.
This premise is flawed. Text is not the only possible boundary (although it is admittedly a convenient one).
where are you quoting from? i never made that second statement, this is what i said:
"Non-originalists" do not think the constitution is meaningless. "Originalism," as the term is ordinarily invoked, implies a particular restriction on data available to interpret that meaning. Thoughtful "non-originalists" object to that restriction much more than they object to the premise that the Constitution's meaning is bound by its text.
I said exactly the opposite of what your mis-quote implies that I said.
Let's see, Loving v. Virginia or anti-miscegnation, Brown v. Board of Education or "separate but equal" laws kind of calls this rather sweeping contention into question.
I accept your assertion. I ask you then, if the contract is not bound by it's [sic] text, by what is it then bound?
So there's no spirit of the law, only the letter?
Respectfully, I quoted the last 14 words of the exact quotation you cited.
That's how I always viewed it.
And since we are on the topic, an analogy occurred to me the other day. Sometimes a privately held business wishes to raise capital, but the owners do not wish to relinquish control. So they determine to sell a minority share in the business (maybe after incorporation) to that end. Now the purchasers, no fools they, know that they will still be in the minority, and if strict majority rule applies, then their investment can quickly become worthless. So often they will either contract with the majority or write into the by-laws (= Constitution) of the company limits on the power of the majority, i.e. certain acts cannot be done by the majority, or at least need approval of a supermajority, etc. The majority shareowners accept these restrictions because they want the minority to invest in the company, and are willing to give up part of their prerogatives as the majority for that purpose.
If the Consitution is a social contract, then the restrictions on majority rule are part of the contract which the majority has accepted to encourage minorities to join or remain part of the social contract. Enforcement of these restrictions is not anti-majoritarian because in such a case the Court is simply enforcing the contract -- i.e. holding the majority to the bargain it made.
Not a perfect analogy, but perhaps of some value.
Of course there is spirit of the law, but not contrary to the letter.
Your view is probably more coherent than my original assertion. But it does not contradict my original assertion that the government has no claim for special exemption from the constitution that formed it.
I think you're really missing the point. Nobody is saying that we're not bound by the text of the constitution. Nobody thinks we can ignore the rule that the president has to be a US native just because enough people would vote for arnold schwartenagger (sp?).
The point is that "originalism" is a term that implies a particular set of interpretive tools - dictionaries from the 18th century, memoirs of the men that drafted the document, etc. If all originalism meant was that the constitution's meaning is bound by its text, then i feel confident in saying most would self-identify as originalists.
What you stubbornly fail to acknowledge is that lodged in the constitutional text are certain indeterminacies. "Life", "liberty", "due process", "equal protection", "privileges and immunities", "full faith and credit," etc. etc. The list goes on and on. Nobody disputes that what courts and legislatures and presidents can do is bound by that meaning (except, well, i won't go there). Non-originalists dispute the tools originalists use to determine a term's meaning.
Take "due process." What does it mean: what the person who wrote it into the constitution thought it meant, what the person who wrote it into the 14th amendment meant? Could the same language have two different meanings and both be true? Or does it have nothing to do with the person writing it, but the signatories to the constitutional convention? What if they didn't share a collective understanding of the term? What if they did share a collective understanding, but that understanding was not evident to the state signatories? What happens if the state signatories thought it meant something different? Did these entities even agree on a level of abstraction of "due process?" What if some expressly contemplated the term's meaning would change? Or what if the meaning was fixed by the "average understanding" of a person at the time of the framing? Or should it be the time of the 14th amendment? Wait, what is the average person? Do we just count the average person whose vote counted, or do we consider the average eligible voter? Or do we consider the average member of the living population, including slaves? Let's say we can agree on an answer to those questions, how do we determine what that average is? Shoot, I thought we picked the "average" meaning to everybody, but none of the dictionaries at that time reflect that meaning; how do I get out of that one?
I trust that these are all easy questions for you, but for some of us they are harder.
I don't dispute there is room for reasonable discussion relating to "cruel and unusual". But there is no construction of the text that would read the eight amendment to remove fingernails one by one (without anesthetic) for exceeding the speed limit by 1 mph.
Interpretation of "cruel and unusual" must begin with the words "cruel and unusual" and end up somewhere within the words "cruel and unusual". Non-originalist activism will begin with the words "the right of the people to keep and bear Arms shall not be infringed." and end up at the words "the right of the people to keep and bear Arms shall be infringed." Damn, sorry Kovarsky, I won't do that again.
My point is, words mean something. For non-originalist justices, words only mean what they want them to mean.
Kovarsky,
Respectfully, I quoted the last 14 words of the exact quotation you cited.
not so respectfully, if you are going to quote any fourteen words of mine in the future, i'd prefer you include marginal words like "not" that convey negation.
Perhaps you will now agree with my assertion that words infact mean something, and that
"they object to the premise that the Constitution's meaning is bound by its text."
does not mean
"they object to the premise that the Constitution's meaning is not bound by its text."
Perhaps here we can find common ground. But I won't try to apply this same logic to the clear text of the 2nd amendment, as that apparently touches some nerve.
As for point #2, while I largely agree, it's a total abandonment of the McGinnis/Rappaport argument. That argument is purely procedural: it says we should trust the original meaning of the Constitution to deliver good results because it was enacted by a good process. I don't buy that argument because it's either ahistorical or indifferent to the welfare of women and slaves. The argument you make about the 14th Amendment is legitimate, but it's substantive, not procedural.
fair enough. i gotta go now though. words do indeed have meaning, including my girlfriend telling me to get my ass outside.
Maybe your example is easier. So..."the right of the people to keep and bear Arms shall not be infringed," I wonder what the scope of that right is. Does that right include nuclear warheads, which are "Arms?" An AK with the firing pin filed down? Or is the term "Arms" limited to muskets and other weapons used in 1791?
Here we are on the same page. There is room for rational discussion on whether one can physically bear nuclear arms, or if weapons other than guns fall within the scope of the 2nd... rocket launchers, grenades, guillotines
Here is where the different versions of originalism come to play. Do we rely on Madison's intent? On the intent of those who ratified the amendment? These are all valid questions at to the application of the second amendment.
But how does one start with a text that says "shall not" and end up with an interpretation that says "shall"? It is only when one abandons, whole cloth, the meaning of the text, as non-originalists have done.
You have in your comment identified the largest problem regarding originalism. Originalism deals with principles that should be. Those principles have been long ago walked away from. We now find ourselves with a federal government that is far removed from the limited government required by the Constitution. So the question is, is it practical to abandon our current form of government to return to one consistent with that of the Constitution. I see three options on how to proceed from this realization:
1. Radically cut back the Federal Government to it's constitutional bounds;
2. Amend the Constitution to allow for the Government we have now; or
3. Stop pretending our government is in fact bound by the Constitution, and do away with it officially.
I see the first two options as unworkable, and the last as unacceptable. Now this is worthy of national debate.
I've made that analogy before too, but you did it much better. Thanks.
If there is no reasonably determinate meaning of a constitutional provision, then we cannot expect originalism to lead to disciplined and predictable results. Yet originalists rarely defend their implicit assumption that constitutional provisions have reasonably determinate original meanings. Certainly McGinnis and Rappaport do not.
My own view is that many of the open-ended provisions of the Constitution were adopted precisely because they had no especially fixed meaning, and therefore were able to be sold as compromises that could better obtain the necessary supermajority support. If that is right, then the requirement of a supermajority -- which is central to McGinnis and Rappaport's views -- actually makes it less likely that a constitutional provision will have a determinate original meaning. I have posted on SSRN a paper making an along these lines with respect to the Due Process Clause at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929217
Larry Rosenthal
Chapman University School of Law
And to take it a bit further, what about implicatures and presuppositions? The Constitution presupposes that each state will have an "executive." What if a state wants to adopt a highly decentralized government with a state legislature but nothing identifiable as a state executive? Is that forbidden? The text doesn't say it is; it just presupposes that states won't try to do that. But if they can how do you apply the passages about a state "executive" to such a state?
I don't think these questions are unanswerable, but I've never seen anyone so much as address them.
but if you believe the constitution is text-bound, and it's just that you think Originalism (capital "O") uses crappy tools to determine what that supermajoritarian text means, then the fact of a supermajority does nothing to your argument.
maybe i'm naive, but most "liberal" legal scholars i've met fall into the latter category.
Remember a few years ago when some scholars were aiming to show that even some prominent Founders didn't believe in originalism? The point, of course, was to try to show that originalism is internally inconsistent. My response at the time was: Who cares? Why should we be bound by the dead as to a matter as fundamental as constitutional interpretation? To prefer originalism just because the Founders might have preferred it would be utterly circular; I'll favor originalism because I think its consequences are safer and likely better than the alternatives.
My favorite example of blatant disregard for the text will always be the "Equal Protection Component of the Due Process Clause of the Fifth Amendment."
Is that your favorite? Where's it from?
So what? A provision can have meaning that is indeterminate to a certain degree. We may not know exactly what "Arms" in the Second Amendment means. But we know that it doesn't mean "photograph of a fire hydrant placed on Mars by a concept artist". The indeterminate words in the Constitution are not incomprehensible. It may seem ridiculous, but the indeterminate has limits and boundaries, so an indeterminate term can be determinate in its indeterminacy. Such terms are not only capable of comprehension, they in many cases embed in the Constitution normative debates as old as language or society. That a word is ambiguous or vague does not mean it is incapable of having meaning; rather, it means it is capable of having at least two or more than two meanings; but that does not mean it is capable of infinite meanings or that it has no meaning whatsoever. Originalists presume that there can be consensus on the scope of a term, even if there is debate on how that term should be applied in a particular case. Why is that a bad presumption?
to try to keep this thread somewhat related to the original post, what does your point mean for the "positive correlation between supermajority and 'good results'" argument.
to try to keep your post somewhat related to this thread, what does your post mean for the "positive correlation between supermajority and 'good results'" argument?
It comes from Bolling v. Sharp, the companion case to Brown v. Board. In Bolling, the Court addressed the problem of segregation in the DC circuit. Trouble is, the Equal Protection clause quite obviously doesn't apply to the federal government. Not a problem for the Court!
Key passage: "In view of this Court's decision in Brown v. Board of Education, ante, p. 483, that the Constitution prohibits the States from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Unthinkable? That an amendment that explicitly applies only to the States doesn't impose an equal obligation on the Federal Government?
And ever since, the 5th amendment has an "Equal protection component."
no need to be snide. if you actually read the post, instead of reflexively offering your blinding take on originalism, you'd notice the thrust is that one consequentialist justification for originalism is that interpretations that follow from it are more likely to conform to the interests of supermajorities, because those interpretations were ratified by supermajorities.
"good results" is ilya's term, not mine. try reading the post.
contract:efficient breach :: originalism:brown
to be honest, i didn't realize that's where that came from. i thought maybe it came from some random straw man source, which is why i said that sarcastically.
i'll own up to my ignorance....
What is the alternative to originalism? Rule by nine? The only halfway appealing alternative I've seen is Sandy Levinson's, essentially recognizing that we have an unwritten constitution (of traditions, principles, etc.) in addition to the written one.The unwritten cannot contradict the written, but can sometimes add freedoms to it.
Why on earth not? It's a very pertinent comment on the Second Amendment. The fire hydrant's arms are truncated. Didn't you know that?
Is true. I was once a part of it. But remember the bureaucracy only has the powers that Congress (and by its non-veto) the Executive gave it. Congress passes a law saying X agency may regulate Y for Z general and amorphous purpose. Or, as is more often the case, nobody may do X unless Y agency approves in light of Z amphous purposes. And the agency may impose civil penalties or forfeitures by way of punishing violations.
The situation isn't necessarily illogical, let alone unconstitutional, although I would complain of the results. The Fed winds up regulating a wide array of conduct where Congress, forced to enact a specific code, would never have been able to do it. Instead it promulgates general standards, and leaves those to an agency to apply.
I did the read the post. I also read the McGinnis piece, a few days ago.
I wasn't attacking Ilya -- I was attacking the person I quoted.
I also knew that Daniel was referring to Bolling v. Sharpe, which is taught in first year con law. Obviously, you are out of your depth here. Perhaps if you were an attorney or had gone to law school, you would be qualified to police the thread for relevance.
The subject of my example was a photograph, not a fire hydrant. Above-ground fire hydrants (or those with "arms") didn't exist at the time of the drafting of the Constitution. The Constitution was ratified prior to 1803.
In terms that someone who has not attended law school can understand, my point is that McGinnis' and Rappaport's views result in constitutional provisions that are determinate enough.
I also knew that Daniel was referring to Bolling v. Sharpe, which is taught in first year con law. Obviously, you are out of your depth here. Perhaps if you were an attorney or had gone to law school, you would be qualified to police the thread for relevance.
haha.
The Due Process Clause is the example I have used in my work in progress to which I referred in my previous post. No originalist of whom I am aware believes that the original meaning of due process was to treat as "due" only those procedures considered acceptable in 1791 or 1868, thereby constitutionally prohibiting any innovation in criminal or civil procedure (or substantive law, since there was little recognition of a distinction between procedural and substantive due process in 1791 or 1868). Instead, the Due Process Clause's original meaning was that procedural innovation be subject to judicial review -- it was a mandate to the courts to create a common law of due process.
If I am right, then the original meaning of due process was nonoriginalist. That may sound counterintuitive, but on reflection, perhaps it is unsurprising. When supermajority assent is required, it will frequently be the case that assent can be obtained only on the most general grounds. Agreement at a high level of generality, in turn, will provide limited guidance for particular cases that subsequently arise.
Larry Rosenthal
Chapman University School of Law
In terms that someone who has not attended law school can understand, my point is that McGinnis' and Rappaport's views result in constitutional provisions that are determinate enough.
i'm not descending any further into this insipid territory with you. if you feel that your points are thought provoking, or maybe even pedestrian but still articulate, or that you don't hemorrhage amauteur theories you don't really understand, or that your confessed fetish with the McGinnis and Rappaport article is way cool man, then i bet - i just bet - you are also possessed of that rare combination of self-satisfaction and social aggression is most frequently identified with terrell owens. i also bet, incidentally, that you wear a bowtie.
There may be some parts of the Constitution that have no "reasonably determinate meaning." But there are many that do have such meanings, or at least meanings that are determinate enough to exclude a wide range of options. For example, while it's difficult to pin down the exact original meaning of the Commerce Clause, it's pretty clear that it did not include the power to regulate any and all activities that had even a remote "substantial effect" on commerce when aggregated. Although originalism won't always provide a determinate answer to every constitutional question, it will significantly narrow the range of available options.
***
Justice Stevens,
Or, perhaps you are a lawyer who is ignorant of basic constitutional law.
I'm a Supreme Court and Appellate Practitioner; Eugene is in my Group; I clerked for the same judge as Ilya; I concentrate, among other things, in capital postconviction work, you dunce.
There may be some parts of the Constitution that have no "reasonably determinate meaning." But there are many that do have such meanings, or at least meanings that are determinate enough to exclude a wide range of options. For example, while it's difficult to pin down the exact original meaning of the Commerce Clause, it's pretty clear that it did not include the power to regulate any and all activities that had even a remote "substantial effect" on commerce when aggregated. Although originalism won't always provide a determinate answer to every constitutional question, it will significantly narrow the range of available options.
You picked the easist example. Of course that's clear; everybody knew that, agreed on it, understood that to be the case. That's not a hard question for an originalist or a non-originalist who thinks the constitution is text bound. But getting determinate answers to easy questions isn't a net advantage for originalism if other theories get there too. the only theory that gets you there is "the constitution says what i think it should say," and i don't see anybody defending that.
But modern originalism (we still haven't clarified whether we're talking about original meaning or intent) is NOT the proposition that we adhere to "original meaning." Originalism is a buzzword for a set of methods for determining original meaning, which are NOT necessarily more determinate. There are conflicts all over the federalism papers; if you believe in original intent, then I don't know how you figure that out when the data on the representatives at the convention, not to mention the states themseleves, is neither available nor amenable to easy interpretation.
There are two different values to keep separate: (1) authority and (2) determinacy. originalism might be more desirable because the fact that it's a constitutional text may give it more authority; but it doesn't follow that a particular way of interpreting would yield the most determinate results.
i'm really trying to understand. if the problem is that some agreed upon language is indeterminate, how is the fact that more people agreed on it relevant to determining what the consensus language actually means?
Yet you are having an argument about justifying originalism's consequences without a working knowledge of Bolling v. Sharpe.
The problem is not whether language is indeterminate; the problem is to what extent the language is indeterminate. You might try reading Professor Rosenthal's response to my criticism and Professor Somin's response to Professor Rosenthal, above, for greater clarity.
Yes, an easy example, and the other theories of "interpretation" STILL weren't able to get it right. Because they weren't trying to.
The problem with non-originalist/textualist theories is that they demonstrably DO NOT "get there, too", on a whole laundry list of easy questions. Or else we wouldn't be having this argument.
Another good reason to find a way to limit people to one post per hour.
Look, I can see why there might be some disputes about exactly what something means, or how broadly to interpret a provision based on original meaning. But as someone else on this thread has pointed out, the Constitution for capital punishment, with certain guarantees and limitations on it. To argue, as liberals like to do, that capital punishment is fundamentally unconstitutional, is absurd. It is simply one group that can't persuade the majority to their point of view, using their control of the judiciary to impose a minority viewpoint on the majority.
There is no serious question that the Framers or the Congress that passed the Fourteenth Amendment intended equal protection to guarantee the right to same-sex marriage—especially because actions that are fundamental to homosexuality, such as oral and anal sex, were criminal in every state in 1791 and 1868. So liberals have no choice but to either:
1. Ignore original intent.
2. Persuade the majority in every state.
It is apparent that they have chosen #1 because they are unable to do #2.
I've picked on this example because it is especially blatant, but the same is true in a range of other areas, such as the campaign to get capital punishment declared unconstitutional, and the insistence that the Second Amendment does not protect an individual right. You can find plenty of other examples, such as Bolling v. Sharpe.
I am not arguing that I like all the consequences of following the Constitution. I am an opponent of capital punishment, for example. The Bolling v. Sharpe decision, as much as I applaud the results, was clearly wrongly decided. But once you corrupt the process because you like the results in one case or two, where do you stop?
I agree that there are ambiguities as to intent in a number of areas. When it doubt as to whether something was a granted power or a recognized right, I think it is wisest to leave this up to the legislative branch to make a decision. But if a power was widely exercised by governments at the time, or was not exercised at all, it seems pretty clear that the courts should see this as a major clue.
Ditto for rights. Was some action lawful in every state in 1791? Then there's a good chance that this was recognized as a right. You can go too far with such a claim. There might not have been any laws against human sacrifice at the time, but I think it is pretty clear that no one considered this a right.
Was some action unlawful in every state in 1791? Then it is very difficult to argue that this was recognized as a right.
OK let's start from the beginning. Are we talking about original intent or original understanding. Or are we talking about some combination of both.
Yes, the constitution is hard to amend. That's an argument for giving greater weight to the text that actually made it through that process than to whims.
Yes, some phrases may be underspecified, but that doesn't imply that the ones that aren't should be ignored.
That's why I picked the example -- chartering a national bank -- that I did. That was the work of the George Washington administration, and its constitutionality was advocated by (and opposed by) persons intimately involved in the framing and ratification of the Constitution. On originalist grounds, was McCulloch v. Maryland correctly decided? If so, how do we know? If not, then originalism has an "original sin" story that takes us back at least to the Marshall Court. If we walked away from the original Constitution "long ago," it was really long ago.
The contract analogy fails. I cannot bind you into a contract for which you never assented. And none of us voted on the original Constitution or most of its amendments. Barnett clearly lays this out in his book. No one is bound to a contract ratified by a dead guy or a bunch of dead guys hundreds of years ago. The original meaning of the Constitution can only legitimately bind if read through the lens of a presumption of liberty. In that respect, no one's rights are violated by living under our Constitutional order.
That is the only way the original meaning of the Constitution can be legitimate.
Sure, that's less certain, but as others have pointed out, various forms of "originalism" -- be it intent or meaning -- aren't certain in hard cases
What you say is true enough -- contracts do require assent to be binding -- but in my view (which is also Madison's view) people DO assent to the Constitution. That assent is implicit, but I think citizens understand that they are accepting the Constitutional system when they come of age.
The consent, however, in a contractual sense, of a bunch of dead guys from two hundred years ago, simply isn't enough for legitimacy. You need something more. And that is the presumption of liberty and that government's ONLY legitimate functions are to protect rights of life, liberty, and property, which are "unalienable," that is antecedent to majority rule. The majority does not have the legitimate power to abridge my right to liberty (so long as I'm not violating anyone else's) and I never consented to live under a system where they did have that right.
If you want to argue that your right to engage in X is Constitutionally protected, because the Constitution guarantees a right to do X—then if X was a felony in 1791, or 1868, it means that the Framers of the Constitution, or of the 14th Amendment, intended to make a felony into a right! What a fascinating definition of a right!
Except that there was no "presumption of liberty" in 1791. There were specific areas where people enjoyed enormous liberty at the time. There were no laws prohibiting concealed carry of firearms, for example. In many other areas, however, the only "presumption of liberty" was with respect to the federal government. State governments, unless specifically bound by their state constitutions, had all other powers not prohibited to them. How state governments used those powers show that there was no "presumption of liberty." State laws requiring church attendance. State laws prohibiting oral and anal sex. State laws criminalizing adultery. State laws that made libel both a civil and a criminal matter.
I am not thrilled by many of the state laws of the time, and many of these examples above I regard as foolish or unnecessary today. But reading those laws makes it clear that "presumption of liberty" is a very inaccurate understanding of the time.
Not true. Use the words "binding on heirs and assigns" and then sell me the contract. Of course, my purchase is perhaps consent. But if I'm your son and you leave it to me then where is the explicit consent?
I have 'inherited' the authority to this (psuedo)contract from my predecessors, in full force and with no degradation of my rights under it. Or in the alternative, the current government has no authority at all over me due to my lack of consent. I choose the first, as more workable.
You may like this idea, and if the choice was to live in a society like this, or in a society run by liberals, I would prefer that choice. But the Constitution didn't create such a society. It limited federal power to a few areas; prohibited the states from actions in a few areas; but generally left the states free to pass whatever laws did not violate their state constitutions--for good or for bad.
The 14th Amendment was intended to extend the protections of Amendments 1 through 8 to the states, but for a variety of reasons, the Supreme Court has chosen to engage in intellectual dishonesty about this, ignoring explicit guarantees that both proponents and opponents of the 14th Amendment agreed would be imposed on the states (such as the right to keep and bear arms) while finding rights that are, at best, implied. This certainly has changed the equation substantially. But this "presumption of liberty" is a modern fantasy about the Constitution ratified in 1789.
You guys are picking easy examples. Sure, the logic of "that was a felony when [applicable due process provision] passed" is a pretty good interpretive argument. Originalism makes its dent in due process and equal protection adjudication.
Of course it's not fool proof. Passing a constitutional amendment does not require that unrelated bodies repeal unconstitutional laws. Those laws have to be litigated, and their constitutionality decided. That's almost besides the point, though. I'm not interested in arguing for Roe or for Lawrence, both of which I think wrongly decided.
A much better discussion materializes when you talk about "cruel and unusual punishment." Did the framers think a particular lethal injection sequence cruel and unusual? No, but they didn't even think about that. Does originalism mean that all capital punishment not expressly forbidden at the time the 8th amendment was ratified cannot be cruel and unusual? I doubt that, and I doubt you would sincerely make that argument.
But then there's the obverse, whether a practice accepted at the time of the framing could ever be cruel and unusual. A strict originalist would say no, but keep in mind what that proposition entails - repudiating precedent. If we're talking about which theories have the virtue of "constraining judges," isn't a precedential constraint as determinate as an ambiguous phrase in the constitution? If the constitution's phrase is indeterminate, why would you want to deviate from more determinate precedent in order to achieve an originalist result?
The contract analogy sucks. Nonsignatories aren't bound by contract. Also, you can breach contracts legally, and efficient breach rules actually encourage that practice where there is a net benefit.
And to the extent the contractual analogy works, it doesn't help you get out of the problem that indeterminate text presents. What is a "reasonable" search? What is a "reasonable" time for performance? Contracts are easier to interpret than constitutions are statutes, because they generally have one purpose - money; when you are interpreting the other texts you have to accommodate competing objectives.
On intensions and extensions: you'd probably be interested in this paper of mine. My view is that the historic, textually-expressed sense/intension/connotation is interpretively binding, but not historic or contemporary assessmentsof reference/extension/denotation. I call it semi-originalism, or the Zombie Constitution (half-living, half-dead). The referent of Constitutional language changes as the reference-yielding facts change, but the sense stays fixed and binding.
Or as Justice Sutherland put it for the Court in Euclid v. Ambler Realty in 1926, "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"
On the issue of why we should be bound by the Constitution, and what that means about how to interpret it, I would put great emphasis on present-day Article VI oaths. Current officeholders all give explicit consent to be governed by the Constitution. I think that means that current office-holders should accept the Constitution on its own terms--that is, in line with how "this Constitution" defines itself. I think that the "this Constitution" clauses and other constitutional indexicals (like "now" and forms of "here") implicitly define the Constituion as a historically-situated text. So on the one hand we shouldn't be free-form Living-Constitution people, since it's the historically-situated text that is paramount. But on the other hand we also shouldn't be Raoul-Berger-style originalists, since it's the sense expressed by the historically-situated text, not the particular things that text was understood to pick out, given the facts as the framers saw them, that is paramount.
There is also implicit in it the notion that we are somehow "trapped" by the creation of those moldy old dead guys. But... don't we have legislatures? What is wrong with the idea of passing laws to explicitly address heretofore unaddressed concerns? Why open the Pandora's Box of "unlimited judicial discretion" to solve abortion questions, when legislatures are perfectly capable of doing it? Aren't legislatures more democratic? Less likely to produce unforseen side effects?
Well said. This seems to synthesize the arguments of jdsjk, Kovarsky, and myself.
True enough. But if you find that an amendment passes--and no one either changes existing, contrary laws, or even suggests doing so--perhaps this implies that the amendment was not considered to be contrary to those laws? As an example, the ACLU's notion of the establishment clause is quite contrary to the actions of the Jefferson and Madison Administrations with respect to use of governmental buildings for church services. (And these are two of the most hostile to "religion mixing with government" leaders of the time.) This is a strong originalist argument that the establishment clause needs to be read in the narrower sense: that Congress could pass no law that gave a particular status or advantage to a particular religious institution or body, but was free to grant all religious institutions an equal benefit.
And both of which are examples of what happens when originalism is largely ignored. (Although Lawrence is really more an example of, at best, incomplete and therefore inaccurate originalism.)
I remember reading a very careful paper as an undergrad about how the Framers misunderstood the equivalent phrase in the English Bill of Rights as a prohibition on torturous methods of execution. (Misunderstood, because English law was still using drawing and quartering well afterwards.)
At least part of the motivation was to prevent the threat of such a painful death being used as it was in the Bloody Assize of 1685--when hundreds of people pled guilty on the promise of life in prison because of the threat of drawing and quartering. They were executed anyway.
I think a valid originalist argument is that no method of execution that involved more suffering than was commonly used in 1789 would be acceptable. There are examples in the Colonial period of execution by live burial, and even a few into the early Republic where slaves were burned alive, but these seem to be quite exceptional in the period of the Revolution.
Yes, let's repudiate wrong precedent. The sooner the better.
I see no value in wrong precedent, except that everyone is used to it. Plessy was wrongly decided; I see no reason why we should have followed it.
The reason for the anti-originalist unlimited judicial discretion approach is precisely because it is antidemocratic--an opportunity for elites to impose their will on the majority. The Constitution conains a number of constraints on runaway democracy, but that doesn't mean that the courts therefore have an unlimited right to play legislature.
For every example you can cite for nonoriginalist mischief, I can cite counterexamples.
Most people can't square your version of originalism with Brown. You might disagree, but I'm just stating the academic consensus.
Also, I might point out, the entire enterprise of judicial review is "non-originalist." The evidence, especially developed over the last decade, is pretty compelling that judicial review was just not intended by the framers, nor understood to exist by the ratifiers.
None of this is to say that originalism might not be the best interpretive method, but it is to say that you can't cherry pick examples where non-originalism yields objectionable results and reason from that circumstance that originalism is the best interpretive method.
originalism has to be "better" as measured by some metric. i'm wondering what that metric is. usually the value invoked is "determinacy," but your willingness to overturn established precedent to achieve originalist outcomes would seem to undermine, not promote, that value.
Kovarsky: "The evidence, especially developed over the last decade, is pretty compelling that judicial review was just not intended by the framers, nor understood to exist by the ratifiers." Really? Lots of evidence to the contrary. What evidence are you thinking of?
I think there's a legitimate argument as to whether the Framers fully understood what judicial review by an independent judiciary would be like. (Britain had never had a fully independent judiciary.) Still, it is rather hard to imagine that they included a list of limitations on the federal government, and created a Supreme Court, without expecting the court to resolve controversies--which necessarily means overturning law that are contrary to the Constitution. Otherwise, they would have been expecting the Constitution to be self-enforcing.
Now, let's not kid ourselves that this is a new problem. I've been reading state and federal court decisions from the 1810s forward for many years, and it is apparent that there have always been judges deciding the constitutionality of laws based on their personal preferences. It was a bad idea then, and it is a bad idea now.
"It was a bad idea then, and it is a bad idea now."
Exactly. Because it makes us governed by men, not by laws. Which is a fact that gets lost sometimes in the back and forth of these threads. "Originalists" have perfectly respectable concerns that really shouldn't be trivialized, or mocked. They want the Constitution to mean something! It almost doesn't matter what, so long as that meaning can be agreed upon, and remain stable over time. Then, inequities, disagreements, confusions, unforseen circumstances, social change, you-name-it can be addressed in a forthright manner by legislative and political processes.
I think that is more the system that was envisioned by our Founding Fathers than a "living," ever-elastic Constitution.
i'm not sure why you're so exercised by the marbury example. i think the "thou doth protest too much" theme is strong enough both in the abstract and in your post that i'm guessing you know the scholarship i'm talking about. i'm dashing out but i've read in several different pieces that, i believe the number is 8, of the signers believed that judicial review existed in the form marbury created. there was another group whose opinion on it couldn't be determined, and a larger group whose understanding was that review did not exist.
i'm not going to go hunt them down because i don't have time. if you don't believe my assessment of the current scholarship on the matter, that's fine.
The double jeopardy clause also does not mention imprisonment, fines, or probation. Wouldn't this mean, for textualists, that a person could be repeatedly put in jeopardy for the same offense as long as these were the only potential punishments -- and even after having been once put unsuccessfully in jeopardy of life or limb?
Why must textualists also necessarily be literalists who do not look to anything but the text? Can you not be a textualist who also looks to history, dictionaries, plain language, and so forth. And why would a literalist read a prohibition as a grant of power, anyway?
Why isn't the necessary exclusion of a range of unacceptable options for applying the text an appropriate metric? I think Ilya suggested this above.
I'm not particularly exercised about defending Marbury. I've never heard that any framer or ratifier denied that judicial power includes the power to nullify unconstitutional statutes, actually, and I had seen the Barnett piece recently. Here's Barnett at p.8: "[T]hroughout the duration of the Convention, I could find no one who disputed the existence of a judicial power to nullify unconstitutional laws. No one."
I thought the (narrow) difference between an "originalist" and a "textualist" was that the former looks to those outside sources you mention while the latter does not -- at least in the absence of some ambiguity in the language of the text itself. Put another way, a "textualist" looks to the "plain language" alone (so long as that language is "plain").
Frankly, I don't see any ambiguity in the language "life or limb" in the double jeopardy clause. I'd certainly be interested to see if a contemporaneous dictionary (or any other source) suggests that "life or limb" bore the meaning "imprisonment, fine, or any other punishment" at the time the Fifth Amendment was adopted.
The double jeopardy clause is strictly a prohibition on governmental power. Unless this question regarding its interpretation can be answered satisfactorily -- or unless textualists are willing to abandon centuries of precedent to the contrary and interpret the clause to apply solely to capital cases (and cases, if any existed, for which the loss of a limb was the prescribed punishment) -- then textualism (certainly) and originalism (probably) collapse under their own weight. As textualists are wont to say, either the words of the Constitution mean something or they do not.
I invite any defenders of textualism to square their method of interpretation with a reasonable construction of the double jeopardy clause -- or to explain why that clause, distinct from all other Constitutional clauses, is exempt from its plain, unambiguous meaning.