Thursday, June 23, 2005

Original Meaning and Original Application


Responding to Brian Leiter's recent criticisms of originalism, Mike Rappaport makes the interesting argument that the original meaning of the Constitution should control in interpretation because the Constitution itself is the product of a supermajority requirement:
McGinnis and I root the normative basis for following the original meaning of the Constitution in the fact that constitutional provisions can only be enacted by passage under strict supermajority rules. (See Articles V and VII of the Constitution.)

Laws that must pass under a strict supermajority rule are apt to be better than laws passed by majority rule. . . . supermajority rules require the approval of a greater percentage of the legislature operates to protect minority interests from being exploited . . . [and] laws must in general produce significant public benefits in order to pass. . . . The supermajoritarian process also suggests that the Constitution should be given its original meaning: it is only the original meaning of the provisions that would have been reviewed by the participants in the strict supermajoritan process.
. . . .
This supermajoritarian defense of the Constitution is reinforced by the fact that original meaning interpretation guides and constrains judges. Under the loose interpretive approach favored by . . . . most liberal academics, there is little to stop the Supreme Court Justices from imposing their own views on the nation. Since this amounts to constitutional amendment by a majority of 9 unelected judges, as opposed to constitutional amendment by a supermajority of elected officials, this process of judicial amendment is far worse than following the original meaning.

For the moment, let me accept Mike's argument. Consider that often when the language of a Constitution is relatively abstract or vague, the language chosen is chosen because it is a compromise that many people with different expectations can agree upon. An example would be the words "privileges or immunities" or the words "equal protection of the laws." Supermajorities may rally around these words not because they limit future interpreters, but precisely because the words do not have clear boundaries of application, and they expect that people will fight out their application later on. Indeed, in particularly contested issues like fundamental rights (or federalism) this vagueness is precisely what is necessary to gain assent from a supermajority with very different substantive views.

In addition, supermajorities may believe that it is better to speak in abstract or general terms rather than address constitutional provisions to specific problems of their day, because of a desire to allow the language to be applied in new ways to meet the challenges of the future. This seems to be the case with respect to the history of the adoption of the Fourteenth Amendment, to take only one example.

If that is so, then it is true in a sense that the sort of vague and abstract constitutional language that gains a supermajority is of "higher quality," and produces significant public benefits. But what makes it of higher quality is its abstraction, its vagueness, and the ability of its applications to be worked out later on in response to ever new situations. I.e., what gives it higher quality is that it is compatible with some form of living constitutionalism.

It does not, however, seem to follow from Mike's argument that judges interpreting the Constitution should be bound by the original understanding of how these abstract or vague words would be applied. Quite the contrary; disagreement about how the words would be applied is precisely what led to the use of vague and abstract language that garnered a supermajority. Although Mike argues that his supramajority argument shows why appeals to original meaning operate as a constraint on judges, it is far from clear why it does so if we understand why abstract and vague constitutional language about rights and powers sometimes commands a supermajority. This language does so because it does not constrain, because it leaves things open for future development.

The argument I'm presenting here is a variant of Randy Barnett's plea for original public meaning originalism as opposed to a focus on original intention. However, I would take the idea one step farther than Randy sometimes does in practice (although not necessarily in theory, as I read his book). There is a further distinction I'd emphasize between original public meaning and the original public expectation about the application of original public meaning, a convoluted phrase which I shall henceforth abbreviate as "original application."

Let me distinguish these concepts: Original public meaning asks what did the words used in the Constitution generally mean at the time they became law. Original intention asks what did the persons who had authority to create the law intend to be law (prohibited or permitted) by their use of those words. Original application asks how did people who lived at the time expect that the words of the Constitution, taken in their original meaning, would be applied to various situations?

In many contexts, original meaning, original intention, and original application converge. However, where the words used in a constitution are relatively abstract, these three ideas tend to come apart. An example are the words "cruel and unusual punishments." Under original public meaning originalism the original meanings of the concepts used (and their meaning in combination with each other) should be preserved, but we are not necessarily bound by either the intentions of the persons who framed the words, or by the general public expectation of how those words would be applied. The concept of cruelty stays the same, but what we have to figure out what that concept means in our own time.

Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application. It also conflates the nature of a concept with the particular set of issues before people at the time they considered constitutional language. This is where I think Randy and I part company (although I am not sure).

So, for example, Randy points out that the debates over the power to regulate "commerce" talk about trade and bargain, but (to me at least) that doesn't prove that the original public meaning of the word "commerce" was limited only to economic issues. As my colleague Akhil Amar points out in his latest book, America's Constitution: A Biography, it was not necessarily so limited; Amar's example is Congress's power to regulate "commerce" with the Indian tribes, which included lots of noneconomic matters. However, "commerce" with the Indian tribes did not dominate the debates; trade and bargain between states did. Relying on those debates conflates original meaning with original application and with what public attention in debates was fixed upon.

Note that if one is committed to original public meaning only in the limited sense I have offered, it is arguably consistent with Brown v. Board of Education, Roe v. Wade, and Lawrence v. Texas (I leave the derivation of these results as an exercise for the reader). One normally does not think of these decisions as originalist, but then, original public meaning is not very originalist in the original public meaning (or original public application) of that term.

I offer these points simply to note that Mike's argument proves far less than it might appear. It seems, at most to be an argument that the text of the Constitution should be interpreted in terms of its original public meaning, but not necessarily its original application. Lots of living constitutionalists like me could sign on to that. (I should point out, however, that it is not clear whether Mike's argument would forbid the use of other modalities of interpretation for fixing meaning, like, for example, precedent and structure. If those modalities are precluded as legitimate sources of interpretation, then there is still a disagreement.)


I mentioned it in a comment on the Brown post last month, but didn't get much reaction: I have a paper making many of the same points, deploying distinctions of long standing from the philosophy of language. I think the Fregean sense, Carnapian intension, and Millian connotation ("meaning") of constitutional language are fixed at the founding, but its Fregean reference, Carnapian extension, and Millian denotation ("application") are not. If this sort of partial originalism got more attention, I think the debates over originalism could be a lot less heated, and focus placed on the relevant question: has there been a change in the facts about the world that, together with sense-intension-connotation-meaning, produce reference-extension-denotation-application?

The basic point is made in meaning/application language in Euclid v. Ambler Realty (1926):

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

My apologies to Chris for not responding to the earlier comment. I have not yet decided whether the distinction that is most useful corresponds to Frege's distinction between sense and reference, and so I've stayed mum on this point.

I think it's also worth noting that you can't just do with original public meaning. You have to at least take account of intertextual arguments, (which go beyond appeals to original public meaning of individual words and phrases, because they sometimes compare relations between texts written at different times), arguments from constitutional structure, which often fill in gaps in the text, pre-and post-enactment history, precedents, both judicial and non-judicial, and prudential considerations about the judicial role. So even if we focused on what Chris is calling "partial originalism," there would still be a separate debate about unimodalism versus multimodalism.

No offense taken, of course. We're all busy!

I think that my approach would be bi-modal regarding the Constitution itself, and would leave open the relationship of the Constitution to constitutional law.

I would accommodate multi-modal accounts, like Richard Fallon's, like this. To figure out what the Constitution requires, we need to (a) determine the original public meaning/sense, and (b) determine the actual reference-yielding facts. The pre- and post-enactment history of understood referents of the constitutional language will be relevant towards both tasks. Likewise, prudential or moral considerations may help us, to the extent that we have good reason to think that the framers' meaning, combined with the actual reference-yielding facts, produce results that are moral or prudent. So I think two of Fallon's modes (original history and precedent) collapse into "assessments of reference," while another two (structure and policy) collapse into "plausible indications of reference." All of these four modes, I think, can be evaludated by the standards appropriate to assessments of reference: i.e., whether they are right or plausible regarding (a) the original sense/meaning (b) the actual reference-yielding facts.

In saying I leave open the relationship of the Constitution to constitutional law, I mean that my understanding of how to interpret the Constitution would leave open questions like whether we want the judicial power to include the ability to enforce things that strictly speaking aren't in the Constitution (e.g., Crandall v. Nevada sorts of rules, or prophylactic-safeguard sorts of rules), or the extent to which various people may have earned prescriptive easements or adverse possession against the rights the Constitution sets up. My theory about unchanging sense and changing reference is just a theory about what the Constitution requires, not a full theory about what judges or others dealing with the Constitution should do, which might be more or be less.

I'm not an academic, just a lawyer, so I'm a bit of an interloper here. Be that as it may, I don't think either commentator has quite gotten to Leiter's original point, no pun intended. The distinction between original meaning and original application is indeed a useful one, as far as it goes, and may solve some (many) interpretive issues. But isn't the real point that the original meaning, even when it is perfectly clear, is never morally preemptive? Suppose, for example, that the original meaning of "cruel" in the Eight Amendment did not preclude the death penalty for rape, as was surely the case. What possible bearing does this have on our determination of the meaning of cruel punishment today? If we are free to disregard the original meaning, because it seems morally unjustified, then the original meaning (not just the original application) may be disregarded in an appropriate case. But then the original meaning is just one consideration among others, rather than a rigid constraint, and this is certainly not what any self-described originalist has in mind.

To take up your other example, suppose the word "commerce" really did originally mean just "trade and barter" that crossed state lines. This would imply, as Barnett suggests, that Congress is presently without legitimate authority to regulate against the inter-state effects of industrial pollution, since this is not "trade and barter," but the by-product of local industrial activity. This would arguably be a case in which "the framers' meaning, combined with the actual reference-yielding facts, produce results that are" immoral or unjustified. My argument would be that, in this case, the original meaning is and should be irrelevant, because the framers could not possibly have contemplated the development of such environmental problems. But they establish the federal government to "promote the general welfare," and the regulation of environmental problems plainly falls within the scope of that mandate. So, I would have no problem interpreting Congress' authority under the commerce clause to include, say, preserving the material conditions within which commerce can function, but that, again, is to ignore the purported original meaning.

As I say, I bracket the question of the extent to which we should obey the Constitution. But the reason why the original meaning matters is that courts interpreting the Constitution do not claim to be making their rules up. They claim that we have to get rid of the death penalty for rape, for instance, because the Constitution told us to--that is, because a historically-situated command, which we have sworn to obey, tells us to. If we are free to ignore what the actual historical command meant at the time, then the fact that the historical command was issued shouldn't make a difference. But we treat the Constitution as if it does.

Maybe the Constitution doesn't give Congress enough power to deal with environmental problems, and maybe it doesn't give Congress enough power to remove the President. As I understood it, Tushnet's point, to which Leiter objected as irrelevant, was simply that the historically-enacted Constitution certainly seems to allow Congress to remove a President for making up facts to get us into a war. Whether Congress has some other power to remove the President, besides the historically-granted one, it is extremely important to find out what the historically-granted power amounts to.

I'm not sure that Coker is obviously inconsistent with the original sense of the Eighth Amendment, combined with the actual reference-yielding facts. If "cruel and unusual" meant something like "disproportionate in light of traditionally- and typically-imposed punishments," and if the death penalty for rape is sufficiently unusual, then Coker could fit with the actual historically-enacted Eighth Amendment. I'm not sure this is the right understanding of the original sense, of course; "aiming to inflict a severe amount of pain" seems like it might be the sense, or something like what Justice Thomas advocates in Hudson v. McMillan. I'd have to look at the history.

I think stm has it

I think stm has it right. Leiter's post is an argument against constitutionalism, insofar as constitutionalism requires decisions to be made by those without any democratically sanctioned authority over those of us living now, and without any claim of moral expertise.

It seems to me that Leiter's arguments are far more powerful and sweeping than he realizes, since they also imply a rejection of old statutes and of law as a specialized discourse.

And they don't lead to the conclusion he supports, a "living constitution", in which the courts are empowered to make decisions without democratic sanction or accountability and without any claim of moral expertise, justified by reference to a specialized discourse not accessible to those untrained in the field.


It begs the question, doesn’t it, to say that “original meaning matters” because the justices claim that they are not “making their rules up” but rather are obeying the “historically-situated command” of the Constitution? I’m not sure that’s what the court typically understands itself to be doing, protestations from Scalia and Thomas to the contrary notwithstanding. Perhaps more to the point, I’m not sure it matters much even if that’s what they say. The question here is the normative justification for reading (applying) the text in a particular fashion and no amount of historical information is sufficient for that task. Thus, if rape really isn’t appropriately punishable by death, and homosexual sodomy isn’t punishable at all, this cannot be because these are the “historically-situated commands” of the Constitution, but because these are the morally correct results.

I don't see how I'm begging the question. I think that at least part of the reason people care about "cruel and unusual punishments" is because of the historical circumstances in 1789-91 related to those words being made part of the Consitutional language. If the historical pedigree of the words matters, then so must the meaning of the words at the time of the events constituting that historical pedigree.

I don't see why I need a normative basis simply to read a historically-situated text in a certain way. Maybe a need a normative basis for obeying that text, or for disobeying it. But the historic, textually-expressed meaning just is what it is. If you want to rebel against it, or seek to change it, that's a matter for normative thinking.

You say, "[I]f rape really isn’t appropriately punishable by death, and homosexual sodomy isn’t punishable at all, this cannot be because these are the 'historically-situated commands' of the Constitution, but because these are the morally correct results." I agree, of course, that there may be reasons besides the Constitution that rape doesn't appropriately receive the death penalty. Obviously, we retain the right to think that other punishments are bad, or immoral, or unwise. But you seem to say that historically-situated commands are never worth any weight when we decide what to do. But surely contracts and statutes and constitutions have influence on what we should do--at least some influence, maybe not conclusive influence--simply in virtue of their historical pedigree, don't they? If we don't care about what the framers thought about the words they picked out, why should we ever care about what they did with those words?

I think you're quite right that history and tradition carry some weight in deciding what we should do, constitutionally speaking, although as you know this is notoriously difficult to measure. The point I mean to stress is that, while perhaps relevant, neither history nor tradition are sufficient, by themselves, to establish the content of our constitutional rights, which are an aspect of political morality that cannot be reduced -- logically cannot be reduced -- to any set of historically determined social conventions. I also agree that contracts, at least those freely entered in to, and statutes, at least those with a certain democratic pedigree, impose legitimate obligations upon us, even if we think they are morally deficient. But the rights-bearing provisions of the Bill of Rights are not in any relevant sense analogous to a contract or a statute. Their interpretation is thus always an exercise in normative reasoning.

I'm not sure I understand why, as a logical matter, the Constitution is different because it is "rights-bearing." Contracts and statutes establish rights too. They might be old. Interpreting a command issued through a complicated process from 1789 and 1791 doesn't seem to me very different at all from interpreting a blog comment produced through a complicated process a few hours ago.

Remember, I'm not claiming that history settles what we should do. But the history relevant to the extraction of the historical and unchanging sense, plus the actual reference-yielding facts, tells us the content of what the Constitution tells us to do. What we then actually do is, of course, up to us.

the confusion of "original application" with "original meaning" is the heart of the dispute. Scalia acts as if they're synonymous and they just aren't.

I used to illustrate this by pointing to the famous words of the Declaration of Independence:

"We hold these truths to be self-evident that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness."

and pointing out that the man who wrote them owned slaves. Obviously, I said, this inconsistency is not explained by any change in the meaning of the words, but rather by Jefferson's failure to truly live up to them.

I recently learned that Stephen Douglas and Abraham Lincoln actually fought about this precise issue. Here, with apologies for length, is what Lincoln said:

"Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include Negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.

I have now briefly expressed my view of the meaning and objects of that part of the Declaration of Independence which declares that "all men are created equal."

Now let us hear Judge Douglas’ view of the same subject, as I find it in the printed report of his late speech. Here it is:

"No man can vindicate the character, motives and conduct of the signers of the Declaration of Independence, except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness. The Declaration was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country."

My good friends, read that carefully over some leisure hour, and ponder well upon it—see what a mere wreck—mangled ruin—it makes of our once glorious Declaration.

"They were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain!" Why, according to this, not only Negroes but white people outside of Great Britain and America are not spoken of in that instrument. The English, Irish and Scotch, along with white Americans, were included to be sure, but the French, Germans and other white people of the world are all gone to pot along with the Judge’s inferior races.

I had thought the Declaration promised something better than the condition of British subjects; but no, it only meant that we should be equal to them in their own oppressed and unequal condition. According to that, it gave no promise that having kicked off the King and Lords of Great Britain, we should not at once be saddled with a King and Lords of our own.

I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere; but no, it merely "was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country." Why, that object having been effected some eighty years ago, the Declaration is of no practical use now—mere rubbish—old wadding left to rot on the battle-field after the victory is won."


"See what a mere wreck—-mangled ruin—-it makes of our once glorious Declaration" reminds me of Dahlia Lithwick's line about "bludgeoning the Constitution to death."

I agree that this is one of the chief errors of Dred Scott. If we knew that the Framers got all of the reference-yielding facts right, then we could be confident that they got the reference right, and we could agree with Taney that the framers were "incapable of asserting principles inconsistent with those on which they were acting." But the Framers were not omniscient, nor even infallible, in their assessment of the reference-yielding facts; this is why we need to distinguish the original sense/meaning from the original reference/application.

I'm not sure that Scalia is the only one who overlooks the compatibility of an unchanging constitutional meaning with a changing constitutional reference. The living-Constitution people need to recognize that the Constitution is partly dead: they need to show a change in the reference-yielding facts, or a misperception of them, in order to justify (on the basis of the Constitution) a change in constitutional outcomes. To justify continuity in constitutional outcomes, we likewise have to deny that there has been such a relevant change in (or misperception of) the reference-yielding facts.

My article's now on SSRN here.

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On appeal, the CAFC affirmed. In doing so, the court first found that PTO's interpretation of "original application" is was a procedural determination leading the court to grant Chevron-level deference to the PTO's interpretation.
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