Thursday, August 13, 2015

Can the New Originalism Account for the Constitution, the Law of the Constitution, and our Constitutional Tradition?

Stephen Griffin

In the very interesting Clough Center symposium referred to in my previous post, moderator Jim Fleming asked where we are in the debate between the various forms of originalism and living constitutionalism.  I’m certainly looking forward to reading Jim’s forthcoming book on the subject. This series of posts is my own take on the state of the debate and it should be kept in mind that I will be making criticisms of both points of view, although perhaps I will be less hard on living constitutionalism.

It should also be kept in mind that I am about to launch a somewhat slow-burning criticism of the new originalism, understood as the theory of original public meaning or semantic originalism, the import of which won’t be completely apparent until later posts.  This is partly because my critique of the new originalism is intertwined with views I hold about the relevance and value of approaching history from a historicist perspective – roughly, approaching history as historians do.  Those views can’t be spelled out adequately in one post, so this argument is sequenced.

One way the new originalism has clearly advanced the discussion over theories of constitutional interpretation is by distinguishing among the different senses of the word “meaning.”  The forms of meaning identified by new originalists that matter most for the purposes of my discussion are (1) linguistic or semantic meaning – the meaning in English of the terms in the Constitution at the time they were adopted and (2) meaning understood as purpose – the point or “intent” of the people adopting the provisions.  So far as I am able to tell, new originalists imply, without quite saying or justifying, that (1) is always superior to (2) for purposes of constitutional interpretation and adjudication.  But I’m not sure how that argument goes.  I will argue that our experience with original public meaning, particularly with respect to executive power scholarship, shows that without steady attention to meaning as purpose, interpretations go awry – in fact, they get deracinated, disconnected from the reality and context that the past should provide us.

I suggest we shouldn’t adopt a theory of interpretation (or construction) that leads us away from understanding and accounting for not only the plain text of the Constitution, but the law developed pursuant to it (developed by all authoritative constitutional actors, not just the Supreme Court) and our constitutional “tradition,” understood as the web of commentary, opinion and disputation that has surrounded the document from the beginning.  I don’t mean to suggest that theories of interpretation are automatically ruled out of bounds if they hold that past interpretations or doctrines are mistaken.  But we should be wary of theories that cannot account for or reproduce the key constitutional controversies that have occupied Americans for decades (really, centuries).  It seems to me that the new originalism, especially in its hyper focus on individual words and phrases of the text, is going down this road.

Constitutional theory has been on something of a textualist binge.  You can read entire books on constitutional interpretation without guessing that for much – really, all of American history – the Constitution has meant much more.  I am not thinking of unenumerated powers or rights.  Rather, I have in mind the familiar doctrines of federalism and separation of powers.  Few would deny their centrality to both our developed law and constitutional tradition.  Yet, at least historically, both doctrines have always been understood as a mix of text and “nontextual” elements.  I have nontextual in quotes only because given the hyper focus on the new originalism on the text and nothing else, it might appear at first glance that they are not “in” the document.  Of course they are.  But if these doctrines derived completely from the text, it would not be necessary for an extraordinarily able scholar like John Manning to write two highly skilled articles trying to debunk them!  In his 2009 and 2011 articles in the HLR, Manning proceeds on a fairly narrow front, critiquing current Court doctrine which has of course repeatedly and explicitly recognized and used these doctrines to evaluate and invalidate legislation passed by Congress.  Yet these doctrines have a crucial historical meaning far beyond the opinions of the Court.  Without “our federalism,” there is no state sovereignty, states’ rights, the principles of ’98, nullification, secession, the Civil War and, one might mention among other cultural impacts, continued attachment by some whites to the Confederate battle flag.  For its part, separation of powers historically includes not only specific provisions that relate to checks and balances but notions of the proper balance of power among the branches, including the possibility of encroachment or aggrandizement by one branch upon another, the idea that one branch can become too powerful – so, the imperial (presidency) (Congress) (judiciary).  How can a theory that, on my reading, strictly limits itself to the text and nothing but the text, account for these doctrines, embedded as they are in our Constitution, the law of the Constitution, and our constitutional tradition?

I might be hyperventilating, so I’ll try to restate.  The new originalism emphasizes the fixation of textual meaning at a given point in time.  It is not clear whether new originalists think the doctrines of federalism and separation of powers just described are binding law.  It is clear that the Supreme Court thinks they are.  It is also impossible to understand our constitutional history and tradition without them.  So if the new originalism is trying to account for the main doctrines of the Constitution, its law as developed by the Court and others, and our tradition, it has a problem.  Of course, it might be trying to fundamentally change our law and tradition by totally excluding any element not directly based in the text.  But given that these doctrines are a mix of textual and nontextual elements, it is not clear how we would go about this.

So the problem posed by these doctrines goes deeper.  How we think about federalism and separation of powers is directly and inextricably related to how we do and have construed specific textual provisions.  The commerce clause is an example.  Interpretation of Congress’s regulatory power under that clause has always been influenced by notions of the proper balance between national and local power.  So the Court likely read the word “commerce” narrowly at one time (and certainly the word “among”) out of concerns to preserve the federal balance.  And interpretations of the vesting clause in Article II have been influenced by whether the justices thought the presidency was gaining power relative to the other branches, thus potentially unbalancing the government (Justice Jackson in Youngstown).  Finally, the doctrines of federalism and separation of powers are crucial to understanding why the Reconstruction amendments at first made a promising difference to race relations, then failed for decades, came back in the civil rights movement and were again challenged by “neofederalism” under Reagan and the Rehnquist-Roberts Courts.  As a practical matter, ignoring the doctrines of federalism and separation of powers makes things a bit too easy.  It makes it appear all the new originalism has to do is to find the meaning of certain words in the eighteenth century.  But given that the Constitution involves more, we appear to have a problem.

Now, if you believe semantic meaning is primary and somehow supersedes meaning as purpose, you might ignore this.  For example, to extend the argument Manning (and other scholars) have made re separation of powers, you don’t need to determine the semantic meaning of the “separation of powers clause,” because the Constitution doesn’t have one.  If, however, everyone writing and ratifying the Constitution believed in a “principle” called separation of powers, then we do have a problem assuming meaning as purpose is still relevant (and why should it not be)?

Parenthetically, I am not building an argument that we can ignore eighteenth-century purposes because things have changed so much and we are not bound by the “dead hand.”  As I will develop later, I reject the overly broad dead hand argument for the same reasons Jack Balkin insightfully sets out in Living Originalism.  So, perhaps unlike some living constitutionalists like David Strauss, I certainly accept the text (and the doctrines I have been describing) as binding law.  That just sets us on the road to theories of informal constitutional change, however, not the new originalism.  But that’s for later.

For now, I want to highlight another historical point about the new originalism that concerns me, at least if we assume that semantic meaning is supposed to be primary.  Consider these examples.  During the period in which the U.S. Constitution was written and ratified, what was the original public meaning of these terms: (1) constitution; (2) Congress; (3) President; (4) executive power; (5) judicial power.  Any reasonable answer will privilege meaning as purpose and in context over semantic meaning.  Why?  There’s no reliable way to determine the meaning of these words and phrases either through a hypothetical reasonable person standard or by (as apparently Solum has in mind) constructing a massive database of eighteenth-century meanings.  The meaning of some of the words and phrases in the Constitution was constituted in the debate over adopting it.  This is what made it possible for some opponents of the Constitution (or even erstwhile supporters like John Adams) to fail to comprehend significant aspects of the proposed Constitution.  This is, by the way, one of historian Gordon Wood’s most important arguments in his work.

I think (1) is a pretty good example.  Could it indeed be the case that new originalism cannot account for the meaning of the word “constitution?”  Let’s keep in mind a point urged by Cornell that there was no dictionary of American usage available during the founding period.  Available definitions from England defined “constitution” as an assemblage of fundamental laws, not a law designed to be the supreme law of the land.  Americans had new ideas!  Kurt Lash develops a similar point in his recent review of Originalism and the Good Constitution by John McGinnis and Michael Rappaport.  Some of what was being proposed in the Constitution was truly new.  It had never been done before.  We might make some headway with the meaning of these terms by treating the Constitution as its own guide to interpretation, along the lines of Akhil Amar’s intratextualism.  And there is no denying that these terms had meaning, as illustrated by the debates in the Federal Convention and the ratifying conventions.  The point, however, is that the privileging of the reasonable person standard and the appeal to a mass of eighteenth century evidence apparently inherent to the new originalism won’t do.  As I will argue, this is precisely the point where pro-executive power scholarship went wrong.  We need to orient ourselves to the Constitution by attending to questions of purpose and design, of meaning in context, not semantic meaning simpliciter.

To conclude for today, let’s reverse field and ask what’s right about the new originalism? Consider that many scholars (including myself) have been impressed with the objection that the meaning of the Constitution could not be fixed in the way assumed by the theory of original public meaning given the strong disagreements that broke out among the founding generation once the government began operating in 1789.  Historian David Sehat has recently published a useful book (The Jefferson Rule) which develops this very argument in some detail.  But such arguments, I will briefly suggest for now, cannot account for the essential role of the text (as supreme binding law) in constituting the institutions that enabled the new national government to succeed after 1789.  Language does have power!  At least it does when it is the basis for politics and institutions.  Developing this point will take us further afield and so that’s for another post.

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