Distinguishing Original Meaning and Original Intent:
Lawprof Larry Solum of the Legal Theory Blog laments:
From the perspective of a constitutional theorist, I am frequently baffled, frustrated, and confused by the carelessness with which the theoretical foundations of debates about original meaning are articulated, both in the blogosphere and in contemporary constitutional scholarship. How can it be that the distinction between the various forms of originalism are still ignored? Can anyone really have missed the shift in originalist thinking from original-intentions originalism to original-meaning originalism? Most contemporary originalists believe that the relevant inquiry is into the original "public meaning" of the constitutional provision at issue. Hardly anyone thinks that the intentions, expectations, or purposes of the framer's are independely entitled to interpretive authority--although they may be evidence of original public meaning.
I definitely share Larry Solum's frustration. Sadly, the confusion is not confined to the blogosphere and "contemporary constitutional scholarship." Supreme Court Justice Stephen Breyer also does not get the distinction between original meaning and original intent (or at least does not realize its importance), as I explain in Part III of my forthcoming review of Active Liberty: Interpreting our Democratic Constitution, his recent book on constitutional theory. Breyer also conflates originalism and textualism (which need not require any reliance on original meaning OR intent). These two distinctions are not just academic hairsplitting, because original intent, original meaning, and textualism often lead to widely differing results in real-world legal controversies.
Perhaps future Supreme Court nominees should be required to explain the difference between original meaning and original intent during their confirmation hearings! It would certainly be more fun to watch than the hearings we have now - at least for Larry Solum and me.
More on Originalism:
Jim's query on the original meaning of the Fourth Amendment has provoked yet another round of debates on originalism. In addition to Ilya's post below
, Larry Solum has the update here
, along with his response to recent posts by originalist Jack Balkin
and nonoriginalist Brian Leiter
I share Larry's opinion that Jack has raised an important issue for originalist theory: the distinction between "original expected applications" and "original public meaning." In my view, while nonoriginalists have tended to attack straw men that have long been discarded by thoughtful originalists, originalists for their part have paid far too little attention to the normative and interpretive theory underlying their practices. I consider Jack Balkin's recent embrace of one version of originalism to be highly significant for a number of reasons, including that it promises to stimulate the constructive development of originalist theory.
(Civil comments only please.)
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)
Balkin on Originalism:
Larry Solum recommends
Jack Balkin's new article Abortion and Original Meaning
. Although I must resist the temptation to read it until next week, on the basis of its abstract and Jack's blogging I recommend it as well. There is a reason my first article defending originalism, and the chapter on originalism in Restoring the Lost Constitution
, is entitled: "An Originalism for Nonoriginalists." Here is the abstract.
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.
Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.
The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.
The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.
As Larry likes to says "download it while it's hot."
I am opening comments for those who read the paper and want to discuss it.
(Civil comments only please)
Update: Jack blogs about his new paper here. You can post your comments on his blog where he can read them.