I
want to thank Mark Graber for his generous comments about my forthcoming book and
note that after this post, I’ll take a brief break to do a bit of promotion for
Broken Trust: Dysfunctional Government
and Constitutional Reform. I’ll be speaking about the book at a related Sept.
4 panel on constitutional amendment and constitutional change (with John Vile,
Sandy Levinson, Richard Hasen, and Melissa Schwartzberg) at APSA in San
Francisco. After I return to the topic
of the new originalism and living constitutionalism, I will turn to the latter
in order to pose some challenges for the most influential forms of this perspective.
But
to continue for now on the new originalism.
It
is sometimes said that the new originalism is indeed “new,” in the sense of
still being built out and road tested (I agree that the
interpretation/construction distinction still has the wrapping on). Perhaps so and it would certainly be unfair
to judge the progress of the theory by dating it to Justice Scalia’s 1986 move
to original public meaning (OPM). For
his part, Scalia has always been better about giving statutory examples to back
up the cogency of OPM theory rather than constitutional examples (and his recent
book with Bryan Garner, Reading Law
is no exception). But if we consider the
field of executive power scholarship since the early 1990s, it turns out that
OPM has been around for almost a quarter of a century, certainly enough time by
anyone’s standards to judge it by the quality of the specific interpretations
(or constructions) of the provisions of Article II (and the “declare war”
clause of Article I) that have been offered under its banner. I examined this scholarship in the course of
researching my chapter in the OUP
Handbook and saw a number of problems that illustrate the arguments made in
earlier posts that OPM is methodologically flawed from a historicist point of
view. In addition, I reviewed the war
powers work of John Yoo, who uses OPM theory, in my book Long Wars and the Constitution and came to the same
conclusion. I’m summarizing rather than
developing those concerns here. I should
also say that I haven’t yet read Sai Prakash’s recently published book Imperial from the Beginning, although of
course I am familiar with his earlier work.
If
you adhere to OPM theory and are interested in the meaning of Article II, it’s
your task to determine the “original” and “public” meaning of terms like
“executive power.” How would you do this? By of course finding evidence concerning the semantic
meaning “executive power” (or perhaps taking on “executive” then “power”
separately as in Heller) had for the
“public” that read the Constitution, perhaps using the reasonable
eighteenth-century person standard. I
put such terms in scare quotes because the public that existed in 1787-88 as
the Constitution was debated and ratified is not the same public that existed
in the American colonies of the seventeenth or mid-eighteenth century. Nonetheless, OPM executive power scholarship
begins in those earlier periods. This is
partly because OPM scholars see Locke’s writings on government and Blackstone’s
circa-1760s treatise as providing reliable evidence on the OPM of executive
power, an OPM which is then presumed to carry forward into the critical period
of the 1780s, unless there is specific contrary evidence. That’s the general thrust of this scholarship. Yoo in particular has a tendency to fix the
meaning of executive power (along with “declare war”) in mid-eighteenth century
England and then constructs an entire argument around the assumption that it
changed not at all through the Revolutionary War, the Articles of
Confederation, the critical period of the 1780s and the writing and
ratification of the Constitution. This suggests
that OPM methodology runs into trouble unless it can summon a stable base of
meanings that existed prior to the formation of the Constitution itself. Fine, but why should this pose a problem?
Because
the leading scholarship on the formation of the Constitution, including the
work of historians like Bernard Bailyn, Gordon Wood, Jack Greene, Jack Rakove
and many others showed that the critical period in effect changed the baseline
for understanding many of the words and phrases in the Constitution, especially
once we take into consideration doctrines such as federalism and separation of
powers to which I referred in earlier posts.
Here the OPM scholarship of the 1990s is especially difficult to
understand because it appeared that these legal scholars were developing a
parallel historiography, often citing each other for authority (which is fine)
without taking into account the prior seminal work of Bailyn, Wood and many
other historians (not fine). Martin
Flaherty and other legal scholars have of course made the same argument. And that’s the reason I felt justified in
making the same point in my OUP Handbook
chapter.
Here
I will note parenthetically that once again I am making a methodological point
and so I do not necessarily disagree with all of the specific interpretive arguments
of pro-executive power scholars. In
particular, reliable scholars like Mike Ramsey have made powerful arguments
that the vesting clause of Article II confers substantive and substantial power
on the President. But this argument is
persuasive to the extent it is based in the logic of and inferences from the
bare text and structure of the Constitution itself, not evidence about what the
OPM of “executive power” was circa 1787.
Doing OPM cannot be a matter of taking a general survey of people that
no longer exist. It is more like taking
a glacial core sample of a pretty specialized set of primary sources without
considering whether the sample is relevant to or representative of the
surrounding rock. Why? Because the relevant inquiry for legal purposes is about a particular
document with a specialized design, not what the public meaning was of certain
words and phrases in the eighteenth century generally. To exaggerate to make a point, it is more fruitful
to view the entire Constitution as a term of art than it is to view it as being
assembled by its authors from nonexistent comprehensive eighteenth century American
dictionaries.
Speaking
generally, when you really look closely at OPM executive power scholarship,
what you see is a set of presumptions being used to bulk up rather thin
evidence, not a robust assemblage of eighteenth-century meanings. The reason is not that there is a lack of the
right kind of evidence about executive power.
There’s plenty of evidence about the meaning of executive power…in
England. In the colonies, it gets more
complicated. But my main point is that
the presumptions are doing nearly all the work, something that is especially on
display in Yoo’s work as I argue in Long
Wars and the Constitution. In other
words, these scholars don’t really have evidence of what the OPM of executive
power was when the Constitution was sent to the several states. Not their fault, no one does! In order to save an inherently flawed
methodology, they are appropriating OPM evidence from an earlier period (and
another country!) and shoving it into the framework of the writing and
ratification of the Constitution. This
is why it is especially misleading to exclude, as these scholars sometimes do,
relevant evidence from the Federal Convention.
Again speaking generally, excluding evidence from the Federal Convention
is adventitious for pro-executive power scholars, especially with respect to
war powers. But it’s never a good idea
to exclude relevant historical evidence, especially when the people at
Philadelphia also participated actively in the ratifying conventions.
All
of this is not by way of establishing that the semantic or, for that matter, “meaning
as purpose” meaning of phrases like “executive power” was somehow “living,”
fluid, or impossible to determine. I am arguing
rather that the OPM approach has a very specific take on what counts as
relevant historical evidence that happens to be unsuited to the task of finding
constitutional meaning amid the rapidly changing circumstances of the 1780s. Historians already knew this in a sense – why
didn’t leading executive power scholars in the law schools pay more
attention? In reviewing pro-executive
power scholarship for my OUP Handbook chapter, this was hard for me to
understand. As you can no doubt tell by
now.