Balkinization  

Tuesday, November 29, 2011

Sigh . . . Originalism

Gerard N. Magliocca

Richard Nixon once said that "we are all Keynesians now," and constitutional theory is approaching the point where we are will all be originalists. Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack defends the Court's abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist.

I'd like to propose a simple test for originalism--an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified. For this definition to work, one would have to distinguish between "weak" originalism (not many people at the time read the provision that way) and "strong" originalism (lots of people did). For example, some people did say in the 1860s that the Fourteenth Amendment applied to laws discriminating against women. As far as I know, nobody in 1791 said that the Cruel and Unusual Punishments Clause prohibited the death penalty. The former could be an originalist interpretation; the latter cannot.

If there was a dispute over whether a particular application was covered, then the inquiry should turn to why the decision was made. For example, why did the Framers of the Fourteenth Amendment insist that women were not covered? Was that view based on their understanding of gender differences? On background law? On what the rest of the world was doing? If those premises were incorrect and an alternative interpretation by others making different assumptions was offered back then, a court would, in my opinion, be justified in embracing the minority view as the best originalist interpretation.

There are the usual difficulties with this approach. It still relies (though less so) on the original expected application of the text, which some (notably Jack) see as the wrong way of attacking the problem. It still presents the problem of how to define the level of generality in the analysis. (Is the proper approach to abortion that nobody mentioned it in 1868, or should it be considered an example of gender discrimination, which was discussed?).

My test, though, would do two useful things. First, it would put a meaningful limit on originalism. And second, it would allow originalists to support developments in modern constitutional law that are very popular with the American people.

Comments:

Gerard, I welcome this post. I try to read (with 81 year old eyes) much of the proliferation of articles on originalism and living constitutionalism. The more I read, the more I believe that originalism is evolving into living constitutionalism. Regarding your test, particularly the second "useful thing," I recommend William P. Marshall's "Progressive Constitutionalism, Originalism, and the Significance of Landmark Decisions in Evaluating Constitutional Theory," available at SSRN:

http://ssrn,com/abstract=1952594

The "Landmark Decisions" are Barnette (1943), Brown (1954), Gideon (1963) and Reynolds (1964).

The efforts to force fit originalism is like fitting a square peg into a round hole with tools consisting of law office history.
 

Actually, it was Milton Friedman who said, "We are all Keynesians now" in 1965. Nixon said, "In economics, I am now a Keynesian" in 1971.
 

Cesare Beccaria was a major influence on the original understanding of the C/U Clause and argued against the death penalty. His writings influenced various people, in the narrow sense on this subject by restricting the reach of capital punishment, and in the broad sense that a few (e.g., Benjamin Rush) broadly denounced its legitimacy. Some most likely tied their support on the primitive nature of the penal system.

"Weak" originalism can likely show some either considered it possible that the clause applied to the death penalty and if the penal system provided an adequate alternative, that it would ban it. As applied to the states, more likely thought as much by 1868.

The "usefulness" of the test provided seems to be based on reality that "originalism" (like "judicial activism" used in a derogatory sense) is here and we need to find some way to use it that makes some degree of sense.

But, this underlines the fiction: the use supposedly provides a limit. Shag's "evolution" comment seems true if this is what we are left with. After all, a reasonable understanding of "originalism" would be that the original class of people we are relying on knew that some text would be applied using basic principles based on specific facts that change. It is unreasonable to think they knew how each provision would be specifically be applied.

For instance, many relied on natural law, which as rationalists, they knew was understood over time. Discoveries led old understandings to be overridden. They didn't know what the future would bring there. But, if we used their guidelines, applied to new situations, aren't we in some fashion "originalists"?

We are trying to be guided by them with what we know now. Certain provisions are limited in scope, so they closed this avenue. Others, they left open, expecting various things to change.

To artificially limit this to what could imagine back then, when they purposely left things open since they "contemplated" an uncertain future, might be a "simple" rule. But, like the activity/inactivity provision, it is makeweight.

Worse, it isn't what I think was originally understood would happen. Tad ironic and the use of the word gives what is happen misleading authoritative effect.
 

"I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?"

Sam Alito, Nov 2 2010
 

it would allow originalists to support developments in modern constitutional law that are very popular with the American people.

My impression is that most so-called originalists have no interest in supporting such developments. They do tend to downplay their conclusions for political reasons, but they actually oppose those developments.

Supporting Joe's point about Beccaria, Jefferson was one of a small committed charged with revising the laws of VA in the 1770s to conform to the fact that it was now a republic rather than part of a monarchy. Jefferson did most of the work, and one significant change he proposed was a drastic reduction in the number of death penalty offenses (down to 2, IIRC). So yeah, there were definitely those influenced by Beccaria.
 

I think there are very few modern developments in constitutional interpretation that would fail to pass the "weak" version of this test. Alexander Hamilton almost certainly would have loved the modern understanding of the Commerce Clause. Abortion and birth control are difficult issues to analyze historically because the technology has changed, but certainly there is far from a historical consensus that pre-viability abortions are something that a government ought to be in the business of criminalizing.

Plenty of people argue that the Founders never would have imagined in a million years that they were creating a constitutional right to same-sex marriage, yet very few of those people are heard to argue that Loving v. Virginia is an un-originalist decision that should be rejected. That's because the "strong" version of originalism has largely become a political argument rather than a legal one, just as Lincoln's constitutional analysis in the Cooper Union address was really more political than legal. There's not actually One True Meaning that our forefathers all agreed on yet inexplicably failed to write down, leaving us to divine their wishes from beyond the grave.
 

Contra Shag, originalism isn't evolving into living constitutionalism. Living constitutionalists are attempting to disguise themselves as originalists. It's a tactical response to the fact that originalism is the only approach to interpretation that the general public views as legitimate.

These false claims may muddy the waters, but they don't represent any actual change in originalism itself.
 

The intent of a constitutional provision is expressed in its text. Originalism should therefore be focused on the original common meaning of the terms used in the text and not the varying purposes of the legislators involved in enacting the provision.

Equal means equal, even if some legislators intended some animals to more equal than others.
 

Brett references:

" ... the fact that originalism is the only approach to interpretation that the general public views as legitimate."

So how far back does this go in history as the general public view? Were there general public polls prior to Ed Meese's now discounted "original intent" originalism of the early 1980s to substantiate what Brett references as fact? From Meese's "original intent," originalism has evolved at least three times in its theories, with perhaps more to go.

Perhaps Brett would be so bold as to declare his disagreement with Brown on the basis that it is not consistent with originalism.

By the Bybee [expletives deleted], Marshall's selection of the four cases for his article was not intended to be exhaustive of "Landmark" SCOTUS decisions as he notes in footnote 54 (page 9).
 

Bart, a point I would make is that original intent, original public meaning, and so forth, all will tend to converge in most cases, because those drafting the constitutional language chose, with some care, words which would express their intend such that the public would understand the words to mean the same thing. They weren't trying to hide "gotcha"s in the text, or confuse people.

Shag, the public legitimacy of originalism derives from what it is NOT: Living constitutionalism. Which everybody understands is not so much a theory of interpretation, as a theory of substitution; A means by which the person employing the methodology can avoid being required by text and history to accept any meaning they find uncongenial.
 

This comment has been removed by the author.
 

"the methodology can avoid being required by text and history"

Brett's position on the Commerce Clause underlines what is so "required" is a matter of dispute.

The fact some disagree with him doesn't mean they are trying to disguise anything. It might be that they (or, who knows, he) are wrong. Since the dispute has been going on since Madison v. Hamilton, well, nothing new there.
 

Brett:

Bart, a point I would make is that original intent, original public meaning, and so forth, all will tend to converge in most cases, because those drafting the constitutional language chose, with some care, words which would express their intend such that the public would understand the words to mean the same thing.

I agree that the drafters said what they meant. However, only a small minority of the folks who issued and then ratified the Constitution and its amendments were drafters and the remainder inevitably possessed intents for the provisions which varied with the drafters.

I would suggest that original intent is often the enemy of the original meaning of the text because living constitutionalists cherry pick expressions of intent which plausibly support their rewriting of the text. A good example is the Court's use of Jefferson's phrase phrase "wall of separation between church and state" from an unrelated personal letter to rewrite the Establishment Clause from prohibiting Congress from creating a state church to prohibiting many government expressions of faith.
 

Since our yodeler references the First Amendment's establishment clause in such a cavalier manner, I recommend Jeffrey Shulman's Review Essay "The Siren Song of History: Originalism and the Religion Clauses" available at SSRN:

http://ssrn.com/abstract=1947033

for a tad more meaningful detail in a rather short 15 pages. Warning for the sensitive: the author references "law office history" several times. Here's the closing paragraph:

"It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more we are likely to find ambiguity--and with each step we take away from the promised land of historical clarity, we move a step closer to the richer, if less certain, terrain of historical truth."

Amen!
 

think there are very few modern developments in constitutional interpretation that would fail to pass the "weak" version of this test. Alexander Hamilton almost certainly would have loved the modern understanding of the Commerce Clause. Abortion and birth control are difficult issues to analyze historically because the technology has changed, but certainly there is far from a historical consensus that pre-viability abortions are something that a government ought to be in the business of criminalizing.
communication technology essay
 

ctually, it was Milton Friedman who said, "We are all Keynesians now" in 1965. Nixon said, "In economics, I am now a Keynesian" in 1971.
Philosophy vs. Censorship Art Paper
 

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