Saturday, August 19, 2006

Confusion about Originalism?


Larry Solum asks why nonoriginalists still talk about "original intentions" when in fact most legal theorists who are originalists have long ago moved on to some variety of original public meaning. There are two reasons. One is that most nonoriginalists don't see much difference *in practice* between the positions of those who used to talk about the intentions of the framers those who talk about original understanding and those who talk about original meaning, even though these positions are theoretically distinct and have different theoretical weaknesses. Hence they use the expressions "original intent" and "original understanding" and "original meaning" interchangeably (albeit incorrectly). They may or may not be right about the practical difference with respect to any number of situations and thinkers (Randy Barnett comes immediately to mind), but I think that is pretty much what is going on. There is a hermeneutics of suspicion going on that is the mirror image of the suspicion that many conservatives tend have about why liberals are nonoriginalists.

The second reason for the conflation by nonoriginalists, however, is far more important. Many people who call themselves original public meaning originalists-- and here I have Justice Scalia particularly in mind-- tend to conflate two related but distinct questions: the original public meaning of the constitutional text, and the original expected application of the text. These two ideas are quite different in practice, and the difference between them becomes increasingly important as we move further and further away from the generation that produced a constitutional text.

When originalists like Scalia conflate these two ideas, and insist that we are bound by original expected application (except of course, when we aren't), nonoriginalists figure that there isn't much practical difference between today's original meaning adovcates and yesterday's original intentions advocates.

I myself believe that constitutional interpretation should be consistent with original public meaning and underlying principles behind the text, but I don't accept that original expected application is binding. I don't think that fidelity to text and principle requires fidelity to the specific set of applications that persons living at the time of adoption would have expected. Therefore I don't agree with Scalia's form of originalism, even though he calls it original meaning. I believe that Scalia engages in precisely the conflation between text and expected applications that I indentified above. My position is closer to Randy Barnett's and Akhil Amar's, with differences that aren't relevant for purposes of this discussion. What is most important, however, is that this version of originalism is not inconsistent with many different forms of living constitutionalism. I promise to say more on this topic later.


This is exactly right--I did not understand the original meaning/original intent/original application breakdown until my third year of law school, and simply thought: "they say they want original meaning instead of original intention, but in practice they clearly are arguing for original intention."

Professor, how does one know when they've interpreted the Constitution in a manner "consistent with original public meaning and underlying principles behind the text."

This is exactly right--I did not understand the original meaning/original intent/original application breakdown until my third year of law school, and simply thought: "they say they want original meaning instead of original intention, but in practice they clearly are arguing for original intention."

# posted by Katherine : 12:23 PM

It's a political-tactic to hide the fact from the public that they simply want to turn-back-the-clock.
Taken-literally, it's to bog-down the watchdogs with meaningless-arguments, to keep the other-side busy refuting their straw-man arguments (big-hint here). The best thing is to fight to define the debate before they do. Their approach isn't clever, just another bum-rush.

I've been trying to construct an effective Wikipedia article on the Living Constitution, which can be found here:

To the extent some of it was original research, it seems you're providing support for much of the material. In any case, maybe others would want to contribute.

This link attempts to take Justice Scalia to task for lapses of either critical thinking or intellectual honesty, depending on how boldly one chooses to state the issue. Written early in my 1l it really doesn't reflect the level of polish I would strive for today, but I do think it is on topic, at least to the extent that the topic is the strategic practice of confounding commentators.

Goodness. When I read this fine post of Jack's a couple of days ago, it did not occur to me that it had anything to do with me, let alone that Jack was "attempt[ing] to defend" me! See .

While I was, uh, "surfing" at the beach, I casually dropped a little comment to a blogpost, touting an article (Steiker's) that I think is criminally overlooked (by those *not* in the field of criminal procedure) and that deserves wider attention. Next thing I know -- several days later -- apparently I've set off a knock-down, drag-out debate about original meaning and original intent!

Substantively, I don't have very much to add to Jack's post here. Jack's views more or less reflect mine on these questions.

Yes, Larry S., I am very much aware of the recent shifts from "original intent" scholarship to "original meaning" scholarship, and with Akhil's wonderful, rich mixture that we might (inadequately) call "structural textualism." (I've been reading Akhil's terrific work since he was the TA for my first-year small group (too) many moons ago, and I now have the pleasure of calling Randy a colleague.)

I really did not mean to opine on such debates at all in my modest little comment. For what it's worth (not much, I'm afraid: There's no particular reason my views on these things *should* be very interesting to anyone!), as I said, my views are more or less in accord with Jack's on such questions. Moreover, I'm not yet convinced by Randy Barnett that the intent/meaning distinction will make *that* much difference in application. After all, as Randy's best work demonstrates, isn't it usually the case that the intent of the framers -- or what they wrote, anyway -- is especially good evidence (often the best evidence) of what the words might have meant to the relevant legal community at the time? To me, anyway, the interesting theoretical questions in this debate are: (i) as Jack explains, determining the proper level of *generality* or *specificity* at which to be pitching the question; and (ii) *why* we should privilege original meaning or intent in constitutional interpretation -- a question that is inextricably tied up with the more fundamental question of why we should feel bound to abide by the constitutional "commitments" established by others at all (on which I think it is fruitful to look, especially, to recent work by folks such as Chris Eisgruber and Jed Rubenfeld).

What I find most interesting here is that these fairly internecine disputes can engender such passion and such acrimony (and befuddlement), when (as far as I can tell) they have had little effect on the broader debate within the academy on constitutional questions, and (again, as far as I know) have had almost no impact on the Supreme Court or lower courts. (In saying this, I do not mean to suggest that the Court is always indifferent to constitutional text and structure -- of course it isn't. But those considerations rarely determine outcomes. And original "meaning" and "intent" have had even less purchase than that. Which is not to say that Randy and/or Akhil are barking up the wrong tree, or that their prescriptive agendas are misguided. Only that, so far, the audience for these debates has been a very self-contained one.)

So, anyway, as for the Steiker article -- which was, after all, the subject of my comment! I'd have to go back and re-read it to make sure, but from what I recall, Carol was basically making an argument akin to Jack's, and that's why I found it so compelling. OK, so perhaps under neither original meaning or intent would one conclude that there was a general presumption of a warrant requirement at the time the Fourth Amendment was ratified. (I'm not saying that's right -- I know there's a longstanding, unresolved debate, but I'm not at all conversant in that literature, or qualified to comment on it.) But that's looking at the question through far too specific a lens -- or so Carol argues, if I recall correctly. When the touchstone for constitutional meaning is, as we all can agree, "reasonableness" (or "unreasonableness"), it matters a great deal what the relationship is in any particular era between law enforcement and the citizenry. And Carol demonstrated -- again, if I recall correctly -- why the (rebuttable) presumption of a warrant requirement makes a great deal of sense, in terms of establishing a regime of (more) reasonable searches, in a modern era with a powerful and pervasive police state that would have been unimaginable at the framing.

In any event, whether this is an accurate recollection of Carol's article or not, and whether or not Carol's account is persuasive to most readers, I think her account *does* explain what the Court has, in fact, done over the years (esp. the Warren Court), and is a very valuable response to Akhil's provocative Fourth Amendment writings -- one that must be addressed in any serious analysis of the warrant question, perhaps even by fanciers of original intent *or* meaning.

Which is all I really meant to say when I so innocently gave it a plug in the comments to Randy's post!

My paper on originalism and the sense-reference distinction, once advertised here in the spring of 2005, is now at 50 St. Louis U. L.J. 555, and a slightly earlier version is here. I defend what I now call "semi-originalism." I talk a little bit of smack there about Scalia myself, but figuring his theory out isn't my main task; I want to figure out what should be paramount and binding in constitutional interpretation, and I think the historic, textually-expressed sense of a provision should be, not the framers' intended reference.

To give my take on Marty's two issues: "determining the proper level of *generality* or *specificity* at which to be pitching the question": the binding level of generality is the textually-specified level of generality. We should be bound by the meanings attached to the constitutional language, not the framers' fact-dependent tangible outcomes.

On "*why* we should privilege original meaning or intent in constitutional interpretation," I think that the Constitution's indexical language--its use of terms like "here" and "this" and "now"--embeds a view of itself as a historic, textually-expressed command. (I'll try to get an article on that argument together at some point soon, but you can search through the text of the Constitution for those words and see roughly how the argument would go.) To the extent that we swear Article VI oaths, we indicate our agreement with the Constitution's own view of itself. So textual semi-originalism is the way to go, at least interpretively. (We might want to depart from the actual Constitution, of course, but I'm first concerned about the interpretive question.)

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