an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Note on Interpretation and Construction in the New Originalism
Steve Griffin has begun a very interesting set of posts on constitutional theory and interpretation, using the New Originalism as a foil. At this point in the process, I wanted to offer my own thoughts on an important issue that Steve raises about what the New Originalism is committed to. Knowing Steve's work, I expect that he will concur with some parts of what I say and differ with other parts.
New Originalists, as I understand it, distinguish between interpretation-- ascertaining original public meaning, and construction-- implementing the original public meaning either in judicial decisions, inter-branch conventions, or constructions by the political branches.
The distinction between interpretation and construction is, roughly speaking, that interpretation seeks to identify the basic framework that cannot change in the Constitution absent an Article V amendment, while construction is the work of building out the Constitution over time. Constructions can and do change over time without Article V amendment. The history of American constitutional law is the history of changing constructions built on top of the basic framework. The historical development of constitutional construction is a significant part of the American constitutional tradition.
I have argued that the original expected application of the adopters of the Constitution and its subsequent amendments is not binding on later generations. The original expected application consists of how the adopting generation would have understood and applied the provisions of the Constitution, in addition to the way that they would have articulated and applied the relevant principles and purposes behind the Constitution. Thus, the original expected application is not simply a set of concrete results; it also includes the ways that the adopters would have articulated and applied the purposes and principles they believed were behind the text of the Constitution.
As a result, I have a "thin" theory of original public meaning. The original public meaning consists of the semantic meanings of text, generally accepted terms of art, and any inferences from background context necessary to understand the text. (By contrast, a "thick" theory of original public meaning might count as part of original public meaning the way that the public (or well-trained lawyers) understood and applied the Constitution's provisions. The thicker one's conception of original public meaning, the more original expected applications tend to control the implementation of the Constitution in the present. In the limiting case, best represented by the original methods originalism of John McGinnis and Michael Rappaport, there is little or no room for construction at all; everything can and should be done through fidelity to original public meaning.)
People often confuse two very different positions about the role of original expected applications in the New Originalism.
The first position says that because these materials are not binding on future generations, interpreters may and should ignore them. These views have little or no bearing on the best construction of the Constitution today. This gives later generations complete freedom to construct the Constitution in any way they would like.
The second position is that although these materials are not binding on future generations, they are an important resource for constitutional construction. These materials are the beginning of the constitutional tradition, and therefore people today should invoke and employ them as aspects of that tradition.
I do not accept the first position, and I do not believe that most people who call themselves New Originalists do either.
I do accept the second position.
Under the view that I accept, we pay attention to the positions of early participants in the construction of the Constitution, because they are the font and the source of the constitutional tradition within which we live. They provide us with reasons and materials that we employ when we use history in constitutional argument. (For a more detailed account on how we use history in all of the different modalities of constitutional construction, see my article on The New Originalism and the Uses of of History.).
The distinction between interpretation and construction, and what goes in each box, is especially important when we think about how people interpret and apply a constitution within an ongoing constitutional tradition.
If the positions of early participants, which form the beginning of the American constitutional tradition, were deemed to be part of the basic framework, the content of their views would be fixed for all time in our law (even though they sometimes disagreed among themselves!) and the tradition could never change.
We would have to imagine or construct a unitary set of beliefs and understandings that constituted the content of the American constitutional tradition and we could never vary from it.
But if we understand early understandings of the Constitution and its provisions as the beginning of a tradition, and if the continuation of that tradition is part of construction, then the meaning of the tradition may change over time, much in the way that all traditions change over time. This would also help us to accommodate the fact that even at the beginning of the tradition, there are multiple views about the Constitution that are in competition with each other, and which help push the tradition forward over time.
Thus, it matters greatly that Madison and Hamilton, to name two examples, had opposing views on foreign relations, and had important debates on these questions. It matters greatly that the early Congress and key framers had various views on separation of powers and federalism, which were displayed in early debates on the First Bank, the Jay Treaty, the status of presidential appointments, the meaning of freedom of expression, and many other topics. There was not always general agreement on these issues; in fact the groups that turned into nascent political parties often divided on them. But they are part of a tradition of readings and re-readings of the Constitution that contemporary interpreters should take into account as part of the constitutional tradition.
This is the best explanation, in my view, for the fact that principles like federalism and separation of powers are still seen today as central to our constitutional order, yet our current understandings of how federalism and separation of powers operate are quite different from those of the initial participants in the framing and operation of the Constitution.
The distinction between interpretation and construction also helps explain what mean when we say that certain basic constitutional principles-- even those which are not specifically mentioned in the Constitution-- endure, although their applications to circumstances can--and often do--change. Principles may endure for three reasons: (1) because they are explicitly stated in the constitutional text (like "freedom of speech"); (2) because they are fairly implied from the arrangement and structure of the text; or (3) because they are part of a long-standing constitutional tradition.
These three reasons why principles endure, of course, may implicate and support each other. One reason why something appears in the text or may be fairly implied from it is that adopters began with certain assumptions about how the Constitution would work; conversely, the wording and structure of the text may influence initial understandings and practices that become embedded in the constitutional tradition, and so on.
The principles of federalism and separation of powers (including the counter-principle of checks and balances) fit each of these criteria. The text separates and distributes federal powers and recognizes the states as separate entities; the arrangement and structure of the text suggests general principles of federalism and separation of powers, and the constitutional tradition has depended upon and employed these principles from its inception. Thus, it is over-determined that these principles are enduring parts of the Constitution-in-practice. What has changed over time is how we implement federalism and separation of powers in American constitutional law.
The distinction between interpretation and construction, in other words, is not a way of avoiding historicism or historical change. It is a way of integrating historicism and historical change into the practice of constitutional interpretation and construction.
Finally, the use of the word "tradition" in speaking of the processes of constitutional construction may suggest the slow accretion of relatively minor changes over time. But most traditions don't operate in that way. They feature some gradual changes and some changes that occur fairly quickly, and changes can occur in different degrees and sizes. If you look at any long-standing social practice that relies on tradition, whether it be religion, custom, or law, you will discover that change does not occur in a single size, at a single rate, or in a single way. Rather, traditions are motley and variegated. To be sure, people living within a tradition often like to think of their tradition as relatively unitary, stable, and constant. But those assumptions are often belied by history.