Balkinization  

Monday, October 20, 2008

Clarence Thomas Argues for Original Intention, Not Original Meaning?

JB

In his Wriston Lecture, excerpted in the Wall Street Journal, Justice Thomas appears to advocate an originalism based on original intentions rather than one based on original meaning.

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

This passage is puzzling because for years many people have assumed that Thomas is a devotee of original meaning originalism. There is a significant difference between original intentions and original meaning. For example, I consider myself an original meaning originalist but I have argued that original meaning does not commit us to following original intentions or original expected applications. So a lot turns on the distinction. An original intentions originalist would argue that we give content to vague and abstract clauses (like equal protection or free speech) by limiting them to the framers' intended reach. Thus, if the framers did not intend that the equal protection clause would trump common law rules that denied married women most of their common law rights, there is no justification for protecting sex equality rights under the equal protection clause today.

What's unclear is whether Thomas is claiming (1) that he is abandoning original meaning approaches for original intention (which would be surprising); (2) that he thinks that an inquiry into original meaning is really the same thing as a inquiry into original intention (a highly controversial claim); (3) that the two methodologies rarely come out differently in practice so we can treat them as the same (which is not the case, as noted above); or (4) that he assumes his audience doesn't know or care much about the differences between different methodologies of originalism and so he will use "original intention" as a shorthand for all of the various forms of originalism, even though they may produce very different results. As long as someone is an "originalist" of any stripe, they are judging impartially; otherwise they are just making things up.

Number 4 is surely the most charitable assumption, but why not just use the term "original meaning," which is by now well recognized among legal conservatives and generally preferred to "original intention"? Should we assume that Justice Thomas, unlike the Framers, should not be held to mean what he said?

If someone has a link to the full text of the lecture, please put it in the comments; perhaps later on in the lecture Justice Thomas makes his meaning (or his intentions) more clear.

Comments:

"Number 4 is surely the most charitable assumption, but why not just use the term "original meaning," which is by now well recognized among legal conservatives and generally preferred to original meaning? Should we assume that Justice Thomas, unlike the Framers, should not be held to mean what he said?"

Or maybe he either mispoke or was mistranscribed just as you have apparently mistyped above. Or are you not being held to mean what you just typed? Or is "original meaning" preferred to original meaning?
 

Maybe, Scott, one should assume that Justice Thomas would have put more care into the text of his speech than Prof. Balkin (or anyone else) does in cranking out a blog post.

As for the possibility of misquotation or mistranscription, it seems unlikely. Normally, reporters take their quotes from pre-released written versions. They're not sitting there taking steno.
 

Can we go back to the part where believing that we could have a more evolved understanding of substantive democratic rights that should not be breached by any procedural mechanism is no "no more or less basis in the Constitution than football scores?" Who needs the last 200 years of history, culture, or democratic theory when you could have watched Maryland TROUNCE Wake Forrest?
 

Au contraire Glenn, the number one rule of making a snarky remark on someone else's alleged mistake is don't make a mistake yourself! I assume Thomas was making the remarks to a generalized audience who wouldn't know the difference between the two theories, but I don't know. What I assume Prof. Balkin meant by the comment "Should we assume that Justice Thomas, unlike the Framers, should not be held to mean what he said?" is some sort of dig at Thomas or original meaning originalism, which I suppose is potentially clever, but if you are going to do that don't screw up your own paragraph. I'd also point out there are vast differences between determining meaning in a single speech (or blog post for that matter) and a written constitution.
 

Hmm, good question! I agree most strongly with choice (4).

http://www.legalmatch.com
 

I think you are parsing the speech too much.

Law professors, judges and lawyers themselves do not agree on the meanings of the various terms used to describe the variations of originalism. Reporters and most of their readers are usually completely clueless about these esoteric debates.

Therefore, it is pretty safe to assume that Justice Thomas was simplifying the issue for his lay audience to original intent vs. making up the law.
 

We are celebrating 1808 the passage of the federal prohibition on the importing of slaves. I object to the original intent which was to keep slavery around until at least 1807. I also object to the compromises that made the constitution protect slavery that are inherent in the document. I object to the slaveowners intent and those who acquiesced in accommodating that intent.
Best,
Ben
 

I don't think that the intention v. meaning distinction is super clear. Far better to talk about meaning and application--better yet, Fregean sense and reference or Carnapian intension and extension. See here at 19-21. We can speak perfectly intelligibly about originally-intended sense and intension.
 

"An original intentions originalist would argue that we give content to vague and abstract clauses (like equal protection or free speech) by limiting them to the framers' intended reach."

This seems like a strawman--we can talk about the sense originally intended to be expressed by constitutional language and not confine ourselves, Raoul Berger style, to the originally-envisoned applications.
 

"[T]here are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up."

What's really puzzling is the far less subtle alternative Thomas fails to consider: That we can try to discern as best we can what the constitutional terms actually mean now.
 

What's really puzzling is the far less subtle alternative Thomas fails to consider: That we can try to discern as best we can what the constitutional terms actually mean now.

I think that's precisely what Thomas glosses as "making it up." :)
 

Drake: "[W]e can try to discern as best we can what the constitutional terms actually mean now."

If that means figuring out what the constitutional language would express if spoken by someone in 2008, Thomas would presumably reply that that's not interpreting the Constitution, because the Constitution as an event consists of the use of those terms in a particular historical context (not today).

To be sure, Thomas doesn't give a full explanation for why we can't think of the Constitution as adopted intergenerationally (as Jed Rubenfeld thinks), or re-adopted moment-by-moment (as Alexander Meiklejohn thought). But I'm confident he'd say that the actual Constitution rejects those views. For more, see here.
 

"what the constitutional terms actually mean now"

Ah, the contemporary original meaning! So now we find out what the meaning was to the framers and then figure out how the framers would have said it today? Or we figure out how a framer would have applied what he said then now? (or would that be the original contemporary meaning?) Probably would come out like Kennedy channelling Jefferson.

What if the framers had no frame of reference whatever in which to consider contemporary reality? What if they were uniquely a product of their times? What if the constitution had no contemporary meaning except perhaps structurally? Would our government and courts be any less legitimate than England's?

The Constitution was like the big bang, it inflated the nation and defined its laws of motion; its irregularities became the first stars, whose explosions and collisions seeded the ever more complex future; it remains like the cosmic microwave background.
 

Friedman, I would actually call it contemporary meaning formalism (or textualism). Of course the whole point is to obviate the need to appeal to original meanings or intentions (at least in the primary mode of interpretation).

Chris, looks like a cool paper. Thanks.

pms_Chicago, true enough. But if that is Thomas' gloss, I think it's fair to say he's being deliberately misleading. (Which isn't to say he's not being deliberately misleading even if that's not his gloss. ;-)
 

Michael Drake --

So we are supposed to apply our contemporary understanding of the words to obtain the meaning of the text? That would write out all of legal history.

This came up in the Oct. 6 Supreme Court argument in Vaden v. Discover Bank at 5 et seq. The statute could not be interpreted correctly without understanding that, at the time it was written, the merger of law and equity had not yet occurred.

And who can forget the 1974 contemporary formalist interpretation of "high crimes and misdemeanors"? [stoned giggle]
 

In the discussion of judicial methodology used in the Heller case which was just appeared in the NYTimes and mentions the Balkinization blog
http://www.nytimes.com/2008/10/21/washington/21guns.html?hp
I detect some kind of consensus that the black letter meaning or intent of the 2d Amendment’s language is somehow settled.

That curious “preamble” -- a well regulated Militia, being necessary to the security of a free State,... -- brings up a third alternative (to original meaning versus original intent) that I believe gums up the works even further.

Is it possible that the 2d Amendment was a compromise that reflected no clear original meaning or intent. Perhaps it was -- and there is evidence for this -- a choice of words that was a superficial combination of sentiments but not a reconcilation of ideas. In other words, it did not settle the opposing view of the originators, but incorporated both without resolving the argument. Is judicial interpretation even allowed to acknowledge such a thing?

I really don’tbelive that the old black letter jurists would have handled that “preamble” as if it were a “by the way” lead-in. It is a clearly stated purpose and the statement of such a purpose, without mention of other purposes, would limit the right to bear arms explicitly -- without reference to sources other than the Constitution of such a right for other purposes. Otherwise, there would be no reason for inserting it.

The only reason the black letter is even open to any other interpretation is because we are aware it was the kind of compromise I’ve mentioned -- a superficial one, refelecting not one but multple intents and meanings.

It reminds me of the legislative history of the Sherman Antritrust Act, which may well have been a Republican ruse, seemingly aimed at business monopolies, but in fact was secretly targeted at labor unions.

I’d suggest in these kinds of cases, every judical reading is a bit of a fiction. And the only real solution is political. Which is why such impossible to interpret provision, impossible to transpose to modern times, should be left to legislatures.
 

So we are supposed to apply our contemporary understanding of the words to obtain the meaning of the text? That would write out all of legal history.

It seems to me that our current understanding is at least informed by history. After all, we don't get meaning out of the ether, but out of our dictionaries and our common usage (part of which we've picked up from previous users). Contemporary usage doesn't exclude history, it includes it.
 

Mark Field --
Check the cited argument. The appellees argued the "plain meaning" of the text and won below, their argument makes a lot of sense until you apply the historical fact.
Most of the justices are willing to use legislative history to inform their understanding of the meaning and intent of legislators. However, Scalia prefers to take the raw text and apply maxims of interpretation. The "formalist" part of CMF seems to favor such word mongering over history delving.
 

R. Friedman, you contend that CMF "would write out all of legal history," but there's no a priori reason precedents of five, ten, 20 or 50 years ago wouldn't reflect, be consistent with, inform or even constitute contemporary meanings. It's also worth noting on the issue of precedent that CMF is arguably more consistent than originalism with the fact that (all else equal) more recent precedent has greater legal vitality (whereas under originalism one might expect precedents "nearer the origin" to be more binding).

I already mentioned that CMF would only be the primary mode of interpretation; as such, it obviously wouldn't preclude secondary appeals to history, structure, precedent or prudence to make sense of archaic terms, terms of art, referenced statutes, etc.
 

A fundamental aaspect of interpreting the Second Amendment is the meaning of "bear arms" At the time of creating the Amendment the universal meaning was "military service". Madison specifically defined it as such in his draft of the Amendment. The authorative Oxford Dictionary has always defined it as to "serve as a soldier"
The reason it is now believed to mean individual gun possession is to to decades of proganda by the NRA
 

Paul M. Kintner said...
"A fundamental aaspect of interpreting the Second Amendment is the meaning of "bear arms" At the time of creating the Amendment the universal meaning was "military service". Madison specifically defined it as such in his draft of the Amendment. The authorative Oxford Dictionary has always defined it as to "serve as a soldier"
The reason it is now believed to mean individual gun possession is to to decades of proganda by the NRA"

The problem is that the words "to keep and bear arms" was never a term of art in the common law -- and it was common law lawyers who largely drafted the Constitution. The drafting of statutes was not a fine art among these folk.

The strictest reading of the 2d Amendment cannot justify the inclusion of the "preamble" xcept as a qualification on the second clause.

The problem is not with the black letter. The problem is with the varying reports of the legislative intent of the drafters. I believe they never reached a clear conecpt in the 2d Amendment of what it meant operationally.

But it is clear from the legislative history that the main concern was not personal self-defense, but the role of the militia -- about which they disagreed.

There were very explicit attempts to inject into the amendment other reasons for gun ownership, but they never made it -- often on the basis that they were unnecessary.

The compromise I think was a provision that had simply neither clear procedural or consequential intent. It covered a lot of different opinions and that is the core of the problem facing courts today.
 

The appellees argued the "plain meaning" of the text and won below, their argument makes a lot of sense until you apply the historical fact.

Yeah, the plain meaning rule can get you into trouble in particular cases. I'm not suggesting we limit interpretation to that alone. In most cases, history and precedent are going to be factors in arriving at contemporary understanding.
 

"[T]here are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up."

Since the term "framers" is plural, how do the originalists suppose to decide the intentions of more than one person? Of course, even a single person can have conflicting intentions. But imagine trying to determine the intentions of an entire Congress of legislators? The Constitution, like all legislation, was the result of bargaining. The Bill of Rights was famously added to garner support for the original document. Clearly, a majority of the framers did not believe in free speech (or else that term would have been in the main text) and so it was not much of a leap for most of them to pass the Alien and Sedition law immediately after the Bill of Rights. But did the legislators who insisted on the First Amendment also have that same intention? The originalist argument is so obviously silly, that I wonder how any serious person can argue it.
 

"[H]ow do the originalists suppose to decide the intentions of more than one person?"

The fact that Congress and the state ratifying bodies were collective points toward textualism for me--only what was contained in the constitutional language was intended by Congress and the ratifiers. However, I don't think that collective intention is really so different from corporate intention, which is presupposed any time a corporation is held to a contract. (See, e.g., here.) Speaking of the intent of Congress is no more problematic, as a conceptual matter, than speaking of the intent of a multi-member court, which anyone who relies on precedent is presumably willing to do.
 

One of the interesting modern retrospectives of the value systems and aspirations of the persons and entities which wrote the founding documents and interpreted those in the ensuing few years, say, four score and ten years as an interesting aliquot, is some of the work viewable in the archive of the bureau of printing and engraving, as it is now called, but extending back into those formative times. The problem which such iconic studies easily may unearth is the facile blend of various sectarian and nonsectarian systems of imagery, much of which would be anathema to modern pedagogues. The appetite for rigid formal originalism shares bonds with many variant inflexible systems of beliefs and values. However, to elicit forthright discourse over the representations of iconry on early currency and coin is difficult in confronting these so-called 'originalists', yet, perhaps, in some individual instances, an exercise worth the extreme of effort, with an appreciation for the humor to be perceived in the contorted explications of how pantheist images were palatable to slave-holding capitalists centuries ago, yet they swore by the ideals generated in levantine theologic systems. It becomes easy to hyperparse, so a navegable waterway is no longer a sluice for chemical plant toxic discharges which EPA has waived reporting if below an ever hiked threshold, now long after most fish and supporting aquatic biota have perished long since, yet, donning briefly the colonial masque, navegability determines whether D-10 dozers may fill marshes, or whether hikers have the stamina to experience esthetic enjoyment from landfill sodded with Kentucky bluegrass or more hardy cultivars. The declaration of independence writer would marvel at the diaphanous ludicrousness of such conceptual gymnastics, but the modern judiciary will be looking for Rapanos and its ilk, brandishing navegability as if suburbs and malls related to some Darwinian venture along vine overgrown South American rivers in a dugout vessel guided by aborigines.
 

"However, I don't think that collective intention is really so different from corporate intention, which is presupposed any time a corporation is held to a contract. (See, e.g., here."
# posted by Blogger Chris : 10:47 PM

And, of course, vagueness can make a contract unenforceable. And quite a few corporate contract have suffered that fate. However, very few if any opinions have deemed the 2d amendment unenforceable.

And very few courts have been faced with interpreting the terms of a 200 year old corporate contract. Don't know how that would go.

"Speaking of the intent of Congress is no more problematic, as a conceptual matter, than speaking of the intent of a multi-member court, which anyone who relies on precedent is presumably willing to do"

Rationale is part and parcel of a judicial opinion. The Bill of Rights offers little specific rationale for the rights it enumerates. Although it does offer the militia rationale for the right to keep and bear arms.
 

"And, of course, vagueness can make a contract unenforceable."

And, of course, wanting a Constitution to be unenforceable can lead people to claim that it's vague. Even where it isn't. When you think vagueness empowers you to substitute your favorite policies for law somebody else created, you're not likely to perceive clarity.

Look, are there cases where the various originalisms are hard to apply, and may even disagree? Sure.

But the alternative to some kind of originalism isn't some other form of 'interpretation', it's substitution in the guise of interpretation. When your 'interpretation' technique isn't capable of determining that a text really does, darn it, mean something you dislike, YOU'RE NOT INTERPRETING ANYMORE.
 

The history of the creation of the Second Amendment is rather simple. Along with the other articles of the Bill of Rights is was originally drafted by one man, James Madison, and submitted to the First Congress for ratification. This is what he drafted for what eventually became the Second Amendment

The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”

The House referred Madison’s proposal to a committee for consideration. It reported back with this version

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person

The entire debate in the House was over the “conscientious clause” and its possible deleterious effect on the militia. However, the committee‘s recommendation was sent without modification to the Senate.

The Senate produced the final version as follows:

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.

At that time the Senate met in secret and kept no record of their debates so we have know knowledge of the reasoning behind their modifications.

This is it. What original meaning and or intent do you see in this history?
 

R: "[V]ery few courts have been faced with interpreting the terms of a 200 year old corporate contract. Don't know how that would go."

In my pretty brief career working as a lawyer, I dealt with a bunch of contracts that were written in the 1830s (see here), so I think it's probably more frequent that you'd imagine. How would it go? Same basic way it goes for any sort of contract interpretation.

"Rationale is part and parcel of a judicial opinion. The Bill of Rights offers little specific rationale for the rights it enumerates."

The fact that judicial decisions involve collective rationales, as well as collective statements of facts and collective statements rules, should make them more problematic, not less. But if collective uses of language work for courts at all, they should work for legislatures too.
 

In a commencement speech at Dickinson College, Judge John E. Jones III said that his Kitzmiller v. Dover decision was based on the principle that the Founders based the esbablishment clause upon a belief that organized religions are not "true" religions. He said,

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Is that an "original meaning" interpretation or an "original intent" interpretation?
 

I would disagree in dismissing “intentions” if the intent the can be construed from the constitution. An Amendment to the Constitution is “valid to all Intents and Purposes”. This limits an Amendment to the intents and purposes of some description. Here are some of those intentions.(1)Form a more perfect Union, (2)establish Justice,(3)insure domestic Tranquility, (4)provide for the common defence, (5)promote the general Welfare, and (6)secure the Blessings of Liberty to ourselves and our Posterity.

The word “meaning” does not appear anywhere in the Constitution but we should pay close attention to those words like “intents” that do.
 

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