In
the very interesting Clough Center symposium referred to in my previous post, moderator Jim
Fleming asked where we are in the debate between the various forms of
originalism and living constitutionalism.
I’m certainly looking forward to reading Jim’s forthcoming book on the
subject. This series of posts is my own take on the state of the debate and it
should be kept in mind that I will be making criticisms of both points of view,
although perhaps I will be less hard on living constitutionalism.
It
should also be kept in mind that I am about to launch a somewhat slow-burning
criticism of the new originalism, understood as the theory of original public
meaning or semantic originalism, the import of which won’t be completely
apparent until later posts. This is
partly because my critique of the new originalism is intertwined with views I
hold about the relevance and value of approaching history from a historicist
perspective – roughly, approaching history as historians do. Those views can’t be spelled out adequately in
one post, so this argument is sequenced.
One
way the new originalism has clearly advanced the discussion over theories of
constitutional interpretation is by distinguishing among the different senses
of the word “meaning.” The forms of
meaning identified by new originalists that matter most for the purposes of my
discussion are (1) linguistic or semantic meaning – the meaning in English of
the terms in the Constitution at the time they were adopted and (2) meaning
understood as purpose – the point or “intent” of the people adopting the
provisions. So far as I am able to tell,
new originalists imply, without quite saying or justifying, that (1) is always
superior to (2) for purposes of constitutional interpretation and adjudication. But I’m not sure how that argument goes. I will argue that our experience with
original public meaning, particularly with respect to executive power
scholarship, shows that without steady attention to meaning as purpose,
interpretations go awry – in fact, they get deracinated, disconnected from the
reality and context that the past should provide us.
I suggest
we shouldn’t adopt a theory of interpretation (or construction) that leads us
away from understanding and accounting for not only the plain text of the Constitution, but the law developed pursuant to it (developed by all
authoritative constitutional actors, not just the Supreme Court) and our
constitutional “tradition,” understood as the web of commentary, opinion and
disputation that has surrounded the document from the beginning. I don’t mean to suggest that theories of
interpretation are automatically ruled out of bounds if they hold that past
interpretations or doctrines are mistaken.
But we should be wary of theories that cannot account for or reproduce the
key constitutional controversies that have occupied Americans for decades
(really, centuries). It seems to me that the new
originalism, especially in its hyper focus on individual words and phrases
of the text, is going down this road.
Constitutional
theory has been on something of a textualist binge. You can read entire books on constitutional
interpretation without guessing that for much – really, all of American history
– the Constitution has meant much more. I
am not thinking of unenumerated powers or rights. Rather, I have in mind the familiar doctrines
of federalism and separation of powers. Few
would deny their centrality to both our developed law and constitutional
tradition. Yet, at least historically,
both doctrines have always been understood as a mix of text and “nontextual” elements. I have nontextual in quotes only because
given the hyper focus on the new originalism on the text and nothing else, it
might appear at first glance that they are not “in” the document. Of course they are. But if these doctrines derived completely from
the text, it would not be necessary for an extraordinarily able scholar like
John Manning to write two highly skilled articles trying to debunk them! In his 2009 and 2011 articles in the HLR, Manning
proceeds on a fairly narrow front, critiquing current Court doctrine which has of
course repeatedly and explicitly recognized and used these doctrines to
evaluate and invalidate legislation passed by Congress. Yet these doctrines have a crucial historical
meaning far beyond the opinions of the Court.
Without “our federalism,” there is no state sovereignty, states’ rights,
the principles of ’98, nullification, secession, the Civil War and, one might
mention among other cultural impacts, continued attachment by some whites to
the Confederate battle flag. For its
part, separation of powers historically includes not only specific provisions
that relate to checks and balances but notions of the proper balance of power
among the branches, including the possibility of encroachment or aggrandizement
by one branch upon another, the idea that one branch can become too powerful – so,
the imperial (presidency) (Congress) (judiciary). How can a theory that, on my reading,
strictly limits itself to the text and nothing but the text, account for these
doctrines, embedded as they are in our Constitution, the law of the
Constitution, and our constitutional tradition?
I might
be hyperventilating, so I’ll try to restate.
The new originalism emphasizes the fixation of textual meaning at a
given point in time. It is not clear
whether new originalists think the doctrines of federalism and separation of powers
just described are binding law. It is clear that the Supreme Court thinks
they are. It is also impossible to
understand our constitutional history and tradition without them. So if the new originalism is trying to
account for the main doctrines of the Constitution, its law as developed by the
Court and others, and our tradition, it has a problem. Of course, it might be trying to
fundamentally change our law and tradition by totally excluding any element not
directly based in the text. But given
that these doctrines are a mix of textual and nontextual elements, it is not
clear how we would go about this.
So the problem posed by these doctrines goes deeper. How we think about federalism and separation
of powers is directly and inextricably related to how we do and have construed
specific textual provisions. The
commerce clause is an example.
Interpretation of Congress’s regulatory power under that clause
has always been influenced by notions of the proper balance between national
and local power. So the Court likely
read the word “commerce” narrowly at one time (and certainly the word “among”)
out of concerns to preserve the federal balance. And interpretations of the vesting clause in
Article II have been influenced by whether the justices thought the presidency
was gaining power relative to the other branches, thus potentially unbalancing
the government (Justice Jackson in Youngstown). Finally,
the doctrines of federalism and separation of powers are crucial to
understanding why the Reconstruction amendments at first made a promising
difference to race relations, then failed for decades, came back in the civil
rights movement and were again challenged by “neofederalism” under Reagan and
the Rehnquist-Roberts Courts. As a
practical matter, ignoring the doctrines of federalism and separation of powers
makes things a bit too easy. It makes it appear all the new originalism
has to do is to find the meaning of certain words in the eighteenth century. But given that the Constitution
involves more, we appear to have a problem.
Now,
if you believe semantic meaning is primary and somehow supersedes meaning as
purpose, you might ignore this. For
example, to extend the argument Manning (and other scholars) have made re
separation of powers, you don’t need to determine the semantic meaning of the “separation
of powers clause,” because the Constitution doesn’t have one. If, however, everyone writing and ratifying
the Constitution believed in a “principle” called separation of powers, then we
do have a problem assuming meaning as purpose is still relevant (and why should
it not be)?
Parenthetically,
I am not building an argument that we can ignore eighteenth-century purposes
because things have changed so much and we are not bound by the “dead hand.” As I will develop later, I reject the overly
broad dead hand argument for the same reasons Jack Balkin insightfully sets out
in Living Originalism. So, perhaps unlike some living
constitutionalists like David Strauss, I certainly accept the text (and the
doctrines I have been describing) as binding law. That just sets us on the road to theories of
informal constitutional change, however, not the new originalism. But that’s for later.
For
now, I want to highlight another historical point about the new originalism
that concerns me, at least if we assume that semantic meaning is supposed to be
primary. Consider these examples. During the period in which the U.S.
Constitution was written and ratified, what was the original public meaning of
these terms: (1) constitution; (2) Congress; (3) President; (4) executive
power; (5) judicial power. Any
reasonable answer will privilege meaning as purpose and in context over
semantic meaning. Why? There’s no reliable way to determine the
meaning of these words and phrases either through a hypothetical reasonable
person standard or by (as apparently Solum has in mind) constructing a massive
database of eighteenth-century meanings.
The meaning of some of the words and phrases in the Constitution was constituted
in the debate over adopting it. This is
what made it possible for some opponents of the Constitution (or even erstwhile
supporters like John Adams) to fail to comprehend significant aspects of the proposed
Constitution. This is, by the way, one
of historian Gordon Wood’s most important arguments in his work.
I
think (1) is a pretty good example. Could
it indeed be the case that new originalism cannot account for the meaning of
the word “constitution?” Let’s keep in
mind a point urged by Cornell that there was no dictionary of American usage available
during the founding period. Available
definitions from England defined “constitution” as an assemblage of fundamental
laws, not a law designed to be the supreme
law of the land. Americans had new
ideas! Kurt Lash develops a similar
point in his recent review of Originalism
and the Good Constitution by John McGinnis and Michael Rappaport. Some of what was being proposed in the
Constitution was truly new. It had never
been done before. We might make some
headway with the meaning of these terms by treating the Constitution as its own
guide to interpretation, along the lines of Akhil Amar’s intratextualism. And there is no denying that these terms had
meaning, as illustrated by the debates in the Federal Convention and the
ratifying conventions. The point,
however, is that the privileging of the reasonable person standard and the
appeal to a mass of eighteenth century evidence apparently inherent to the new
originalism won’t do. As I will argue,
this is precisely the point where pro-executive power scholarship went
wrong. We need to orient ourselves to
the Constitution by attending to questions of purpose and design, of meaning in
context, not semantic meaning simpliciter.
To conclude
for today, let’s reverse field and ask what’s right about the new originalism? Consider
that many scholars (including myself) have been impressed with the objection
that the meaning of the Constitution could not be fixed in the way assumed by
the theory of original public meaning given the strong disagreements that broke
out among the founding generation once the government began operating in
1789. Historian David Sehat has recently
published a useful book (The Jefferson
Rule) which develops this very argument in some detail. But such arguments, I will briefly suggest
for now, cannot account for the essential role of the text (as supreme binding
law) in constituting the institutions that enabled the new national government
to succeed after 1789. Language does
have power! At least it does when it is
the basis for politics and institutions.
Developing this point will take us further afield and so that’s for another
post.