A few days ago I posted on Originalism and Precedent–The Next Big Issue. In passing, and without elaboration or defense, I noted that, after years of being a nonoriginalist, I had
adopted a version of originalism based not on the intentions of the framers, but on the public meaning of the text at the time of its adoption and justified, not by popular sovereignty, but by the fact that the constitution is in writing. Its writtenness is a structural feature of the Constitution that would be undermined unless its meaning remains the same until it is properly changed.
[For a nice description of “originalism”–including the difference between “original intent” & “original meaning” originalism–see today’s Legal Theory Lexicon on Larry Solum’s Legal Theory Blog.] In response, I received the following thoughtful message from Caltech philosophy professor Dominic Murphy:
What I want to know is what you mean by “the public meaning of the text at the time of its adoption”: because (1) if the public meaning of the text is only what the words REFERRED TO at the time, then when the constitution uses the term ” the states”, it is referring only to the original 13 states, and all states admitted to the union since then are presumably not bound by it. So you can’t mean that.
So do you mean that (2) many terms in the constitution are defined functionally, as “whatever fulfills the criteria for being a thing of this kind” – in that case all the states come within the meaning of “states.” But now look: in this second version, we admit that the class of entities a constitutional term refers to can expand over time, even if the term keeps its original meaning. In that case, why can’t all the terms work like that?
So that, for instance, when the constitution says “rights” it means “whatever fulfills the criteria for being a right”. In that case, we can decide that something new (like privacy, or even universal health care) in fact meets the criteria for being a right, and expand the set of rights even while keeping the original meaning of the term (philosophers call this the difference between the sense and reference of a term).
If (2) is your theory of meaning, then originalism is compatible with “the living constitution” idea, since we can just say that the meaning of “rights” remains unchanged, we’ve just discovered more of them. You don’t, of course, have to agree that the set of rights can expand like the set of states, but the disagreement is just a philosophical difference over rights, and there is no difference between originalism and the living
constitution view.Which I take it you don’t welcome. So you could try for (3): some terms in the constitution are functionally defined in such a way as to permit more objects of that type to be added to the set of things that the terms refer to. But other terms aren’t: they just refer to what they originally referred to. I don’t know how you defend that without either (a) appealing to the intentions of the founders, as the men in control of the definitions, or (b) providing some hideously complicated semantic theory.
In this message, Professor Murphy (who graciously consented to my posting his remarks with attribution) raises some interesting and fundamental questions about original meaning that merit more careful consideration than can be given on a blog. But here are some thoughts.
First, Professor Murphy is raising what con law professors call the “level of generality” issue. Words can be used with varying degrees of specificity or abstractness and the interpretive issue is how specific or general are the words in the Constitution. Does “states” refer only to the then-existing 13 states, to all states properly admitted into the union, or to whatever entity a judge thinks has become a “state” under the “best” interpretation of that word? Do “rights” refer to particular rights, a particular conception of rights, or to whatever conception of rights happens to be “best”?
Second, most originalists maintain that the level of generality is itself an historical question. While some originalists would limit the level of generality to the specific (though usually hypothetical) intentions of the framers, an original meaning approach of the sort I defend involves looking for how the general public would have understood the terms given the context in which they appear in the text.
So, for example, there is much in the document itself to suggest that the term “states” would have been understood to apply to any properly admitted state. For one thing, the Constitution explicitly includes a procedure for adding states, so it would be bizarre to think that references to states elsewhere in the text would refer only to the original 13. However, it is not up to courts to change the definition of “state” to keep up with the times, so they can decide that the District of Columbia should now be considered a state because its size and population exceeded what the founders contemplated. With this conclusion I imagine most nonoriginalists would agree, but the challenge to them would be to explain exactly why a court could not redefine the meaning of “state” if it can redefine other terms in the written Constitution to “grow” with changing times.
The term “rights” in the Ninth Amendment does not appear in a vacuum. It appears along with the words “retained by the people.” The evidence I present in clearly shows that this phrase was a reference to natural rights, by which was meant “liberty rights” as opposed to other sorts of “positive rights” found elsewhere in the text–or the sorts of “welfare rights” favored by some today. On the other hand, the term liberty “rights” was then and still is abstract enough to include any rightful exercise of liberty, not merely those exercises of liberty of which the founders were aware. In Restoring the Lost Constitution I substantiate this claim too with considerable historical evidence.
In contrast, the “due process of law” is even more abstract. There is no reason to think that this phrase was understood to be limited to a specific set of procedures in existence at the time (though these procedures could exemplify the concept). Same with “cruel and unusual punishment.” The founders did not provide a list of prohibited punishments and there is no reason to think the concept would have been thought limited to specific punishments then thought to be cruel and unusual. One reason the Constitution has lasted this long is that it was written sufficiently abstractly in crucial places to allow its principles to apply to new facts and circumstances.
Which brings me to the issue of the so-called “living Constitution.” Everything depends on how this pretty vague metaphor is taken. If it taken to imply that the meaning of the words in the Constitution change with usage, or that Congress and the courts can take it upon themselves to change these meanings, then it is to be rejected. A “dead constitution” performs the vital function of imposing law on the law makers, enforcers, and interpreters, thereby protecting the rights retained by the people from infringement by their “agents” in government. To perform this function, the meaning of a written constitution must remain the same until properly changed. And those agents whom it binds cannot change this meaning on their own. As Isaac Penington, Jr. wrote in 1651: “They who are to govern by Laws should have little or no hand in making the Laws they are to govern by.”
On the other hand, if the metaphor of “living constitution” is meant to imply that the abstract, and even the more specific, provisions of th
e Constitution require “construction” when applied to particular cases and controversies, and that these constructions can evolve over time as facts and circumstances change, then in this sense the Constitution certainly “lives.” It would be more accurate, however, to say that, while the meaning of the Constitution remains the same, constitutional law does inevitably evolve. I devote a whole chapter of to the limits of originalists interpretation and the need for constitutional construction to provide rules of law and applications to changing facts. Construction is perfectly necessary and proper, provided that any construction not violate the original meaning of the text, as many modern constructions have–most notably, the “presumption of constitutionality” that gives the benefit of the doubt to the government’s exercise of power as opposed to the citizen’s exercise of liberty.
There is, of course, much more to say about all this and I deliberately avoided getting into the nuances of originalism in my original post as I could anticipate that it would be hard to say it all in a blog. But a blog is a good place to start and those who find this topic interesting–whether or not they are sympathetic to originalism–can read what I have written about it elsewhere. Or you can come ask me about it in person (see the next post below).
UPDATE: Larry Solum adds his 2 cents here.
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