If a version of originalism is incapable of finding a conflict between original meaning and modern practice, then it isn't originalism, it's just "living" constitutionalism flying under a false flag. You're not fooling anyone with your attempt to strip the term "originalism" of all meaning.
 

I disagree, Brett. Based on my historical research over many years, I think my approach is far more consistent with interpretive practices at the founding, and with the design of the 14th amendment than much of what passes for current day originalism.
 

"Justice Thomas['s] ... version of original meaning originalism is heavily informed by what I have called original expected application."

I think Justice Thomas recognizes the distinction between original meaning and original application. His McIntyre concurrence-in-judgment relies on South Carolina v. US, which in turn makes the meaning-application distinction clearly: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning." South Carolina is the source for Justice Sutherland's classic statement of the distinction in Euclid, which I quoted in a comment to Andy's post.
 

Jack, just direct people to Federalist Paper #37 and McCulloch v. Maryland. Original intent or publically originalist statements from these two sources make clear that a living constitution (in the Ronald Dworkin sense) IS the intent the originalists should follow.

I once noted to Justice Scalia, in a public forum, that most of the time, we really don't know what the Founders would do with a given issue--and he agreed (which caused the audience to gasp). He spoke with me afterwards and was quite friendly, and funny.

The entire discussion bores me after awhile. Kind of like arguments over who is a strict or less strict constructionist. Judges need to use various tools in their toolbox to make the best decisions: Text, legislative history, procedural rules, constitutional and political history, sociology and less so, economics. Truth is better found in a due process sort of analysis as it often tests the limits of one's own biases or ideologies.
 

The thing is, just saying that new laws are "obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications," (Federalist 37) or that we have "a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs," (McCulloch) or saying that the constitution is living, isn't enough to say how constitutional outcomes change or should be adapted, or how its meaning should be liquidated. If constitutional theory is to do its job in answering basic questions about how constitutional interpretation is to proceed, we need a more precise theory to say exactly what stays fixed and what stays the same. A theory of fixed meaning & changing application--I'd say fixed sense & changing reference--is one way to do that.

I'd take Scalia's admission that he doesn't know how the Framers would resolve particular issues to mean that in his most clear-headed moments he also eschews a pure original-applications WWFD (What Would the Framers Do?) approach, though I'll admit some of his opinions and comments sometimes move in that direction. But taking the original meaning as interpretively binding doesn't have to mean adopting a WWFD approach.
 

Jack has previously written that everyone believes in the living Constitution even when they say they don't. In that spirit, I say that living constitutionalists reject original meaning even when they say they don't. What we living constiutionalists really employ is a standard I will call "fully informed meaning." It is my contention that the major shift in Commerce Clause rulings during the 1930's and 40's cannot be reasonably viewed as adhering to the originally understood meaning of the word "commerce." The commonly understood dictionary defintion of the term was substantially altered between 1787 and the 20th century. When the original meaning of the word "commerce" was found wanting for the purposes of interpretation it was discarded in favor of a more "fully informed" meaning, one which I think proper.

When Adam Smith published his "Wealth of Nations" in 1776 and introduced the concept of market forces which cross jurisdictional lines and shape commercial markets everywhere it was America's Founding Fathers who were among his most strident critics. Even a person of that day who believed in Smith's concepts from the beginning could have only reasonably regarded them as interesting but still unproven. The proof of Smith's accuracy came long after the earliest American citizens were all dead. For instance, the supply and demand curves now taught to every student of economics were only created in the latter stages of the 19th century. To put it quite simply, Americans of the 1780's could not possibly have been in possession of even the most rudimentary tools which we now use to verify the effect of market forces on commerce in highly specific ways.

This represents a fundamental change in the meaning of "commerce" which now enjoys a near-universal consensus of support, a meaning which I believe any credible economist would agree is more "fully informed" than the original meaning. They need not even comment on the law to make this point decisively. The originally understood meaning only contemplated commerce as a collection of separate and parallel transactions which were not driven or connected by unseen market forces. Given the paucity of available economic knowledge in that day, one can hardly fault people of the time for adhering to that understanding. Commonly-understood consensus now broadens the meaning of commerce to include individual transactions AND market forces. The change in Commerce Clause case law could only have happened after that intellectual shift of consensus had emerged.

One of the most straightforward Supreme Court expressions of this change was Wickard v. Filburn. For those who may be unfamiliar with the case, a farmer grew his own grain on his own farm and fed it to his livestock. He did not sell or barter any of it yet both Congress and the Court declared this activity to be subject to federal regulation under the Commerce Clause. Any act of agricultural production was rightly seen as having a direct impact on supply and demand forces which reach across state lines. Once again, one need not even comment on the law in affirming the substance of my preceding sentence here. Any originalist can still argue that Wickard was an improper decision under the doctrine of original meaning. What cannot be disputed is that when a farmer creates his own supply of animal feed he personally fulfills his own demand for the same and removes his demand from the interstate market in animal feed. By the time of the decision this kind of supply and demand argument was regarded by economists as provable fact. The tools needed to document that proof were certainly not yet available in 1787. This distinction created by the progress of economic scholarship goes straight to heart of the more "fully informed" meaning of commerce.

It is simply not credible to suggest that Wickard and other kindred Commerce Clause cases were applications of original meaning. The well-understood meaning of commerce broadened INDEPENDENTLY of any legal doctrine. That broadening of meaning initially had nothing to do with the law. When both the academic and societal consensus on the meaning of a term shifts independently of the law then the legal recogntion of that shift becomes the most centrally defining element of "fully informed" living constitutionalism. That consensus shift represents new and previously unavailable proof.

It is my contention that Jack's attempts to yoke living constitutionalism to original meaning alone are not sufficient. Original meaning should be controlling only when it is the most "fully infomed" meaning. I do not mean to suggest that purely political questions should be regarded in the same light. I draw a bright line between a mere political movement and an independent consensus of proof. It is my contention that living constitutionalist judges properly recognized an independent consensus of proof on the nature of commerce which was more "fully informed" than the original meaning of the term. To demand that the law should not recognize such a shift would render it an anachronism void of rational meaning. Courts should not be hidebound to original meanings which could not possibly have been "fully informed" by the fruits of credible scholarship occurring only in subsequent eras. In my view, this is the very essence of living constitutionalism.

I will agree with those who say that some living constitutionalists have improperly attempted to extend the doctrine to enforce pure politics. There is a legitimate place for argumentative vigilance against attempts to pervert the doctrine into a justification of agendas which lack an independent and credible consensus of proof to support them. In those areas where original meaning truly represents a "fully informed" meaning then that should be controlling. I'm not merely saying that living constitutionalism SHOULD be the controlling interpretation. I'm saying it's also the only reasonable description of the history of the doctrine as applied to Congress's commerce power. Critics of my view will inevitably say that there have always been self-avowed living constitutionalists whose primary motives were purely political. I will agree that those people have always been around. I reject them. I am arguing for legal recognition of newly available proof which alters the previously understood meanings of legal terms. Any truly legitimate recognition of a "Living Constitution" necessarily entails a desire to become more "fully informed" about newly provable facts as that new proof emerges from both academia and society at large.
 

Chris, you don't really answer my main point, which is that if we don't really know how the Founders would resolve a given issue--which means we're not in the Kansas of originalism anymore.

As for Charles Schmidt's comment, I would say Wickam is more of a restoration of the earliest understandings of our Founders (at least Madison and Marshall) than a departure from "traditional" constitutional law. Look at Federalist Paper no. 10 where Madison says:

"A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."

You can say Madison might have protected poor, cranky Mr. Wickam, even from this, but you'd have to admit that Madison's statement supports a robust view of congressional legislation in the economic arena.

McCulloch v. Maryland upheld the constitutionality of the national bank--something that would be considered positively socialist in most elite circles today. As for your citing Adam Smith, I am less sure the Founders were as impressed with Wealth of Nations at the level Mr. Schmidt assumes. It is instead more important to recall that the Founders were also heavily influenced by Hume, who was a skeptic about nearly everything--and thus not "free market" ideologues. If they had any ideology, the Founders were mercantilists. That is very far from the type of corporate capitalists or even "little" capitalists that "intellectuals" such as Newt Gingrich always assume about the Founders.

But, as I said before, take it from a civil trial lawyer: this discussion about originalism is so much hogwash. Judges ought to use all the tools in their jurisprudential tool box and use a due process analysis to attempt to limit the adverse effects from our own biases. Otherwise, they are dancing in the dark and stubbing their toes.

Enough metaphors there?
 

"[M]y main point ... is that if we don't really know how the Founders would resolve a given issue ... we're not in the Kansas of originalism anymore."

I don't think that's right. Figuring out how the Framers would resolve a particular issue is Raoul Berger's WWFD approach. But we don't have to do that just because we view the original meaning of the Framers' words as binding. We can figure out what the Framers' constitutional language meant, even in situations where we can't figure out how the Framers would resolve a particular issue. That's because resolution of particular issues might depend on how we assess reference-yielding facts, and we might not know what the Framers thought about those. For much more see here. In short, I think a non-WWFD original-meaning approach is possible. Lots of other people think so too. Maybe that's not "originalism," but I'd call it at least semi-originalism.
 

Mitchell,

Your explanation does not account for the original understanding of interstate commerce. A generalized assertion for economic regulation of various competing interests does not define the scope of the commerce power.

My core idea is that when a farmer grows his own grain and feeds it to his own livestock the Founders would not have understood that to be an act of interstate commerce. That only became a defensible argument after society became more "fully informed" about the true nature of market forces. When the definition of the term changed the Court followed suit to change the law and recognize a new understanding which had emerged independently of any original meaning.

The real point is that words themselves "live" and change and cannot remain hidebound to previously understood meanings alone. An argument for the supremacy of original meaning is an argument for turning the law into an anachronism.
 

"When the definition of the term changed the Court followed suit to change the law and recognize a new understanding which had emerged independently of any original meaning. ... [W]ords themselves 'live' and change and cannot remain hidebound to previously understood meanings alone."

I don't see why wanting the Constitution to keep up with things like advancements in economics means we should allow the Constitution to change with linguistic changes. I don't see why advancements in economics are necessarily tied to the term "commerce." Also, there might be changes in the meanings of words that wouldn't reflect advancements in our understanding of proper policy. Linguistic changes won't always correspond to advancements in our understanding of proper policy.

In general, I'm with the 1824 Madison: "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject."

Or as the High Court of Australia put it in 1959, "We must not, in interpreting the Constitution, restrict the denotation of its terms to the things they denoted in 1900. The denotation of words becomes enlarged as new things falling within their connotations come into existence or become known. But in the interpretation of the Constitution the connotation or connotations of its words should remain constant. We are not to give words a meaning different from any meaning which they could have borne in 1900. Law is to be accommodated to changing facts. It is not to be changed as language changes."
 

Chris,

I'm saying that a great deal of 20th century Commerce Clause case law cannot be reasonably viewed as adhering the originally understood meaning of "interstate commerce." Regardless of any other legal declarations to the contrary, this rejection of original meaning has been standard practice for a long time. You may not personally see advances in economics as being tied to the meaning of the word "commerce" but the Court clearly does. When the scope of federal regulatory authority was broadened in recognition of those doctrinal changes in economics that cannot reasonably have been attributed to any kind of originalism. If we're going to be serious about a Living Constitution then we must recognize the real substance of how the doctrine has been historically exercised. If our standing Commerce Clause precedents are legitimate and should remain in force then that is an open denunciation of original meaning.
 

"may not personally see advances in economics as being tied to the meaning of the word "commerce" but the Court clearly does."

Charles, let's have some historical honesty here: What the Court saw during the New Deal was not that parts of the Constitution had changed their meaning, but that FDR was going to win in the end no matter what it took, so there was no point in standing in his way and getting steamrollered. It was no more the result of reason than a rape victim lying down to avoid getting punched again is the result of romance.

Let's have no pretty illusions about what went down back then.
 

Brett,

If constitutional case law is nothing but cynical politics then there's no point in the existence of this blog. I'm talking about the reasoning behind the binding terms of standing precedents. If you want to say the Supreme Court was FDR's lap dog that's fine but the Court still employed a non-originalist line of reasoning which binds to this day. Grousing about FDR does not do anything to explain the legal terms of these precedents which are being applied all around us even as we speak. The history of living constitutionalism in Commerce Clause law cannot be explained by original meaning, regardless of who bullied whom.
 

I distinguish between reasoning and rationalization. The Court already had it's verdicts: FDR would prevail. The only question was what excuse they'd produce to justify it.

"The history of living constitutionalism in Commerce Clause law cannot be explained by original meaning, regardless of who bullied whom."

No argument there. My point was simply that the meaning of the commerce clause didn't change as a result of linguistic drift, but because of threats to pack the Court.
 

Charles: "I'm saying that a great deal of 20th century Commerce Clause case law cannot be reasonably viewed as adhering the originally understood meaning of 'interstate commerce.' Regardless of any other legal declarations to the contrary, this rejection of original meaning has been standard practice for a long time. You may not personally see advances in economics as being tied to the meaning of the word 'commerce' but the Court clearly does."

First, we should remember that the original meaning by itself generally needs reference-yielding facts to produce outcomes, so the original meaning by itself can't contradict later case law, unless we make assumptions about the reference-yielding facts.

Second, we have two phenomena: (a) linguistic change, and (b) constitutional provisions we wish were different in light of how we think of the world today. My point is that we shouldn't confuse (a) with (b), and that (a) by itself doesn't make for a particularly compelling case for departing from the original meaning of a provision. Maybe (b) supplies some reason, but it's no stronger reason for departing from a clause when it's based on linguistic change than when it's not.
 

Brett,

The change in the widely understood meaning of "interstate commerce" was applied by the Court long before FDR's presidency. Stafford v. Wallace (1922) is a gigantic example. Legal scholars often trace the source of the modern commerce doctrine all the way back to Swift & Co. v. United States (1905). Those earlier decisions will never be regarded as fully equivalent to what came later but the seeds of the new meaning commerce were sprouting in them. You may not like what FDR did but he did not change the meaning of the tern "interstate commerce" nor was the FDR-era Court the first to recognize the new consensus of economic scholarship which emerged in the late 19th and early 20th centuries.
 

Chris,

I acknowledge that your points (a) and (b) are legitimate phenomena with some differing implications. However, I assert that at least for the purpose of commerce clause interpretation both and (a) and (b) came into existence because of...

(c) an independently developed consensus of provable economic fact.

I contend that the only reasonable description of the historical application of living constitutionalism to commerce law is the employment of (a), (b) and (c) in an intertwined way.

Law and linguistics cannot be separated for the simple reason that words are law. Neither can law be separated from the phenomenon you describe in point (b). It's not an either or question. Both (a) and (b) rightly inform interpretive doctrines where appropriate, as does (c). Linguistic change is not enough but linguistic change does not happen in a vacuum, so you are right to bring up your point (b). I simply view both (a) and (b) as an inescapable consequence of (c) and that they all worked together to shape 20th century commerce precedents.

It's very important to note that every single point made by both you and me on this question assumes that original meaning is not the controlling standard of living constitutionalism. I made all these arguments in the hope that Jack will take notice and reconsider his long-held standard which yokes the doctrine first and foremost to original meaning. I feel that's an insufficient description of the history of its actual application by the Court.
 

Charles,

Hmm. I still don't see why there's any necessary connection between a supposed advance in economic knowledge and a change in how people use the term "commerce." The argument for narrowing constitutional commands, or streching constitutional grants of power, seems no stronger when it coincides with linguistic change. "This command is obsolete" is just as strong an argument for not obeying the command as "this command is obsolete, and people use the same language to mean something different now." Contemporary usage, as such, has no interpretive relevance.

"[E]very single point made by both you and me on this question assumes that original meaning is not the controlling standard of living constitutionalism."

I'm not sure what you mean by "living constitutionalism," but I don't see how I've assumed anything like that at all. I've explained my brand of semi-originalism--the half-living, half-dead Constitution--at length here. I'm agnostic about whether it counts as a form of "originalism," a form of "living constitutionalism," or both. If living constitutionalism means that constitutional outcomes can properly change, then I'm a living constitutionalist. But I also think original meaning (that is, Fregean sense, Carnapian intension, or Millian connotation) is interpretively binding.
 

Why try to preserve Wickard? What's so great about unlimited federal power?
 

I still don't see why there's any necessary connection between a supposed advance in economic knowledge and a change in how people use the term "commerce."


What I'm saying is that it's the only reasonable way to describe the historical application of commerce law. It really doesn't matter if it was "necessary." It's just what was done. It was NOT an originalist interpretation. You are arguing for what should be. I am arguing for what is.
 

Charles: "What I'm saying is that it's the only reasonable way to describe the historical application of commerce law. It really doesn't matter if it was 'necessary.' It's just what was done. ... You are arguing for what should be. I am arguing for what is."

I'm not sure what you mean here. Here's what you said, with which I initially took issue: "When the definition of the term changed the Court followed suit to change the law and recognize a new understanding which had emerged independently of any original meaning. The real point is that words themselves 'live' and change and cannot remain hidebound to previously understood meanings alone. An argument for the supremacy of original meaning is an argument for turning the law into an anachronism."

I took that as a statement that it's a good thing that the Court followed a change in the usage of the term "commerce." I disagreed with that normative assessment. Mere change in how we use a word gives no good basis for a change in how we should construe a constitutional provision adopted at a particular earlier time. You've given a normative defense of the Court's work based on linguistic change, and I've criticized that normative defense.
 

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