jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Clarence Thomas's Originalism
Wednesday, July 11, 2007
Clarence Thomas's Originalism
Justice Clarence Thomas is well known for his claim that we should be faithful to the Constitution's original meaning. This often leads him to results contrary with the rest of his fellow Justices, including Justice Scalia, who also claims to be an originalist, but of the "faint-hearted" variety.
Professor Balkin: But there is more than one version of originalism...
Respectfully, that's totally missing the larger context. When a Thomas or a Scalia invokes "originalism" or "majoritarianism" or whatever pet terms they're tossing about du jour, it isn't from any desire to accurately portray their positions, but rather to foreclose analysis in the minds of as many as can be swayed. The single greatest error and weakness of progressives is this continued insistence on treating rhetoric as reasoning in good faith. Treating ill-will enemies as good-faith players is a dangerous mistake.
Jack: You might have added to your list Wisconsin Right to Life: What are the odds that *any* of the variants of originalism would have given corporations any First Amendment rights, let alone the right to use treasury funds rather than designated, segegrated funds for certain expressive activities?
Until the 1830s, public mass education was not even an issue -- of course, Thomas and our follow originalists are often forced to "hypothetically" assume later-developed constructs, such as compulsory schooling, were in place at the time and determine how the rules would apply -- from Wikipedia:
Education reformers such as Horace Mann, helped jump start the common school movement. In 1837, Mann became the first Secretary of the Board of Education for Massachusetts. Mann was at the forefront in promoting the institution of common schools. His influence on education in Massachusetts soon spread to the U.S. as a whole. Not until 1870, however, were all states provided free elementary schooling.
[T]here is more than one version of originalism. Original meaning originalism asks about the meaning of the words in constitutional text to the average person at the time of adoption. Original expected application asks how people at the time of adoption would have understood the text would be applied....
Thomas portrays himself as an original meaning originalist. However, I have argued that many original meaning originalists actually conflate original meaning with original expected application. That is, they say they are focused on original meaning, but in fact they focus on original expected applications to decide what the principles underlying the text are and how they should be applied.
What is the basis for the distinction between your categories of original meaning and original expected application?
Both categories appear to be text based with the People at the time of the ratification defining the meaning of the text.
Are you arguing that the People at the time of the ratification had different definitions for the text standing alone as opposed to when it was applied to a set of facts?
Your point appears to me to be a distinction without a real difference.
Thank you in advance for any guidance you could provide here.
I've written a couple of articles on this distinction, which I've linked to above. You can also find them here and here. I've argued that although original expected application is not a plausible theory of constitutional interpretation, original meaning originalism is, and, in fact, it is the best approach.
Not until 1870, however, were all states provided free elementary schooling.
It's interesting to think that evidence from the 1870s qualifies as an indicator of original application 100 years previously. Indeed, Thomas cited one case from 1915 in support of his view (a case which, btw, didn't even raise a free speech issue). This form of "originalism" sure looks a lot like living constitutionalism.
Not at all, Mr. Field -- as I noted, Thomas and follow originalists "hypothetically" assumed that such a later-developed construct as compulsory schooling were in place and then simply determine how the rules would have applied back then -- what am I not explaining clearly?
Thomas and follow originalists "hypothetically" assumed that such a later-developed construct as compulsory schooling were in place and then simply determine how the rules would have applied back then -- what am I not explaining clearly?
I think you explained exactly what Thomas did. It just makes no sense whatsoever. "Nunc pro tunc" is not a form of originalism, as far as I know.
On originalism, and having done battle with Scalia on this when he visited my law school, it always baffles me when the Framers and those who voted for the Constitution are termed "the people". Scalia remarked to me that "the People adopted it". I was baffled by his comment as he is an educated person who is clearly aware of the circumstances of the United States at that time. I can live with the Constitution being legitimized by the limited process of approval in place at that time - but going beyond that to then say that the views on the text of that narrow group at the time are all that is to be looked at just baffles me. I recognize we can read them for meaning and they may have special weight in letting us know what they were struggling about. But, those alive even today who read the struggles and think in fresh ways about those issues help inform my understanding. The death of the last Framer appears to be a pretty arbitrary date at which we should stop looking at ideas on the text.
I mean it is like I am not permitted to look at Madison and say - gee this guy who didn't free his slaves when he died is not to me the be all and end all. He is of interest as far as he goes but I think that Frederick Douglass might have said something 80 years later that resonates more powerfully.
On the colorblind Constitution, it seems to me that this is a peculiarly American discussion of our relationship with the peculiar institution. As Randy Barnett has highlighted, the interstate commerce clause and other things were put in place precisely to keep the Federal Government out of the slave trade. Then there are those who say that slaves were not only blacks so the Constitution is colorblind and it just seems to me that it is an effort to mask what was patently clear - that enslavement of blacks was a motor of the United States and a source of great wealth and those with power were willing to preserve it in the Constitution. One of those persons was Barbary my ancestor born in 1787 and sold into slavery in 1800. Draining the Constitution of that significant part of the American experience seems very suspect to me. Is it so hard to recognize that the document enshrined an enormous evil and we fought a civil war to undo that?
As one of my students said, to speak of colorblind constitution is to make me invisible.
I understand that Thomas will be putting out a book now on what he thinks on all things affirmative action and all that. I will take a look at it.
It just seems that originalism alone just like any other system alone is a damaged form of analysis. Each approach is a lens. Now some might say that a "looking at everything" approach is a damaged approach also and that all approaches are equally and on and on. I agree we can end up in a cycle - but it seems bizarre that we would limit ourselves in such a manner not looking forward or backward from that time.
The Constitution is not some document that was handed to us by some higher being. It is the work of a few persons. We read it and we interpret it to best of our ability. No need for blinkers - especially as the Framers excluded so many from being "People" who might have a word to say.
Benjamin Davis: I was baffled by [Supreme Court Justice Scalia's] comment as he is an educated person who is clearly aware of the circumstances of the United States at that time.
Ben, this really ties in with my original comment, that the greatest error progressives are making, day in and day out, is to treat a Scalia or a Thomas or a Hannity or an O'Reilly as a good-faith interlocutor. I invite you to take a look at this Scalia inspired rant I wrote in 2005 after the McCreary decision came down. While it's a little foamy for this venue, I think you will appreciate the points made, and how they serve to highlight the larger issue of accurately assessing the difference between a fellow citizen with whom we legitimately disagree versus a partisan hack looking only to gore your ox. It's vital we adopt different methods for the different categories.
(Not that I mean to suggest you could do much in a forum with a Supreme Court Justice, demands of respect for office and decorum being what they are. Wish I'd been there...)
(Would follow up with a private inquiry about where you teach &c but your blogger profile has no contact info. If you're willing you can reach me at beau AT oblios-cap DOT com)
I still do not understand how "originalism" avoids the intentional fallacy. Moreover, since hermeneutics is not taught in law schools, whence cometh these "literary theories?" Granted, our Constitution and Laws are written in a language, English to be precise, but most jurists don't have a clue about linguistic uses, sense, or reference. Since most law courses are taught outside their historical context, it would seem that all these theories are simply excuses to "mean what we say."
At some point, we have to avoid all this casuistry. We have to determine whether our linguistic use is essentialist or nominalist. We have to understand a word's etymology, it evolutionary use, its changing senses, different contexts, and evolving applications. Not the Richard Rorty relativist nonsense, much less the postmodernist bullshit (John Searle's "postmodernism gives bullshit a bad name"). None of the psycho-babble, either.
Odd, that lawyers do not study any language courses nor are they required to take logic, deductive, inductive, or fallacious -- esp. since our Constitution, Laws, and their applications would seem to require such "basics." Obviously, anyone who appeals to "originalism" has not studied hermeneutics, either.
It's not unlike a Doctor of Medicine who studies pharmacology, surgery, differential diagnoses, etc., but never studies human anatomy, physiology, and biochemistry.
No wonder we get the decisions we get. Jurists lack logic, linguistics, commit fallacies, cannot distinguish between sense and reference, much less use, and praise Richard Rorty as one of the three greatest philosophers of all time. Breathtakingly inane. But it does explain.
The Gay Species: ...whence cometh these "literary theories?"
Y'just don't see "hermeneutics" often enough in conversation these days. ;)
Thoughts: While I wouldn't expect, say, a Charles or a Bart to competently diagram a simple S-V-O like "Charles admires Bart," I think it's fair to assume the head of the Yale Information Society Project and author of works such as Cultural Software: A Theory of Ideology and The Laws of Change: I Ching and the Philosophy of Life holds himself to a higher standard. Don't know about you, but I'm here to rub ideological elbows with our hosts much more than for the guilty pleasure of spanking their more obnoxious guests.
(btw: If your blog or profile list your email I've failed to find it. Would love to carry on this conversation off-blog...)
Isn't "meaning" defined by the set of all applications consistent with that meaning? Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context.
Thus, expected applications can be informative, though not necessarily limiting, on the actual meaning encoded in law.
Most of your examples related to free speech seem to have an inherently cultural component to them (e.g. profanity). Is it fair to conclude that your actual focus regarding the difference between "meaning" and "expected application" is the degree to which codified principles are originally intended or expected to be relative to the changing culture?
If Justice Thomas had attempted an argument about the original meaning of the first amendment, he might have had to acknowledge that the public schools of the 1800s would have abused the religious rights of himself and the four other Catholics in the Morse v. Frederick majority. But I may be doing Thomas an injustice -- perhaps he would see no constitutional harm in being forced to recite Protestant prayers. There were no public schools at the Founding, so we don't know what the Founders thought of schoolchildren's rights, but we have a fair amount of evidence regarding what many of them thought of Catholics, and how they and their fellow Protestants put those feelings into action as public policy.
I can't speak for Professor Balkin, but I suppose the problem is this.
The Fourteenth Amendment, which applied the First Amendment to the states, was adopted in the 1860's. Thus, the relevant originalism is what the original meaning was at the time of the 1860's, not the 1780's. You can't meaningfully posit how the First Amendment was supposed to apply to a state-regulated public school when the amendment wasn't intended to deal with state-operated entities at all and the federal government wasn't operating any public schools.
But, Thomas wants to make his point using cases from the mid-19th Century, before the 14th Amendment was adopted. So he looks at what states were doing back then with their own constitutions and extrapolates that this was the expected application of the 14th Amendment.
That may or may not be the case, but once you do that, you are shifting interpretation strategies. The MEANING of the 14th Amendment was to require state governments to respect, among other things, rights of free speech, and you would need to look at what free speech meant to the nation as a whole as of the 1860's to determine this. What free speech meant in particular states 30 years earlier isn't particularly relevant.
So Thomas isn't really adopting a consistent interpretative strategy here.
I think your distinction well taken but I am somewhat chagrined by the rather nasty and churlish postings of your blogging entourage. Given the difficult task of weighing the value of following originalism-consistent results with stare decisis, one cannot expect a justice's votes perfectly to coincide with the dictates of an originalist analysis. Further, judges are human beings and as such are susceptible to mistakes, even originalist mistakes (gasp!), but that is no reason to reject originalism altogether. And just what precisely is being offered on the other side? Justice Breyer's purposivism? Some redivivus version of Justice Douglas's penumbral emanations? Egads! If we do not wish to be ruled by some nine-headed Caesar giving its collective thumbs up or thumbs done to whatever passes before it (thank you Nino), then I cannot imagine a better technique to avoiding that lamentable result than originalism. Unless we wish to dispense with democracy.
Kevin: "Isn't 'meaning' defined by the set of all applications consistent with that meaning? Hence, if we are to maintain the original meaning, we must also maintain the original applications, albeit, in their original context."
I would define meaning as a function from possible worlds to applications. Two words can have the same application in this world, but if they have different applications in some possible world, then they have different meanings.
The reason the framers can be wrong about the application of their provision, even if they know the meaning of their words, is that original applications might depend on facts about which the framers were wrong.
For more, see here.
I haven't looked carefully at Morse yet, but obviously original expected applications are some indication of original meaning. Absent a showing of error by the framers about the application-yielding facts, I'd assume they were right about the application too. In the bit quoted in the post, Thomas only says the history "suggests" the conclusion.
Thanks for your comment and the link to your impressive paper on the subject.
I think we basically agree. I did not mean to imply any restrictions to particular contexts or worlds in my definition. I also agree that there are many reasons why conflicts between meaning and its applications can exist, though I think such data points should be statistical outliers.
I haven't studied the particulars of this case very much either, but my questions of Prof. Balkin were primarily meant to probe his general philosophy of "original expected applications" versus "original meaning".
At first glance, it appears that he defines "original expected applications" rather narrowly but then equates it with traditional originalism, and then dubs living constitutionalism to be "original meaning" because it better explains how constitutional interpretation has actually operated in practice.
I'm interested in your take on his philosophy, since I assume I'm missing something.
I need to read Balkin's reply more carefully before I comment on his theory in general, but his assessment of the current state of constitutional theory seems the weakest theoretical part of his paper, as Berman points out. So I don't think his equating original expected applications with traditional originalism is right. (I think the application to abortion has some problems too.) In general I think "text and principle" doesn't say enough about the relationship between text and principle. Which is binding when, and why? I think the textually-expressed principle--that is, the sense historically expressed by the constitutional language--is interpretively paramount. To the extent Balkin gives himself more wiggle room than that, he's liable to err. But I need to read the reply carefully before I say more.
Having read the concurrence now, I don't think Balkin's criticism is on point. Thomas seems to acknowledge that the passage of time could make a difference to the constitutional outcome. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech." I read that as a challenge to those who disagree to explain exactly what it is about the changed situation between then and now that requires a different result--as I would put it, exactly what changes in reference-yielding facts are supposedly at work.
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Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
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