Textualism or Originalism

Mark Graber

I had the privilege this week of debating with Richard Epstein the meaning of "privileges and immunities" in the Fourteenth Amendment. Although we obviously disagree on much, Professor Epstein is both a distinguished scholar, as distinguished a gentleman, and puts on a good show. Law students of all political persuasions should read and engage his work.

What was particularly striking about our debate was that, at the end of the day, he was far more a textualist than an originalism. A good deal of my presentation was devoted to how the antebellum Republican party understood slavery (shamelessly pilfered from Hyman and Wiecek's Equal Justice Under Law), and how that understanding explains why the Republican Party read congressional power under the 13th Amendment quite broadly. For most Republicans in 1865-66, the congressional power to prevent slavery both warranted extensive legal protections for persons of color, including federal guaranteed rights to make contracts and own property, and welfare rights. Rambling on, I indicated that we cannot understand the Fourteenth Amendment until we understand this broad reading of the 13th Amendment. Professor Epstein, I think it is fair to report, was less concerned with this detailed history. As he repeatedly emphasized, the text said slavery, and slavery means bondage. Perhaps he is right as a legal matter. I'm more of an historian, concerned with what people are trying to do with language than with whether they actually choose the correct words (though I am inclined to think that the differences between original meanings and original intentions are likely to be small, given that people are likely to choose words with public meanings consistent with their intentions). Still, the debate for me highlighted that, contrary to some thinking, we are all not originalists now. Sure there are feints in judicial opinions to what was thought in 1791 or 1868. But the dominant mode of analysis may well be textualism, worrying about the proper meaning of words than deciphering the many different meanings those words may have had when first ratified. And perhaps this is a good thing. Lawyers and judges, at best, are amateur historians. But they are good at doctrinal and language.
Posted 9:33 AM by Mark Graber [link]