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.)