Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jack Balkin on Original Methods Originalism: A Response
John O. McGinnis and
In a recent blog post, Jack Balkin argues that Jonathan Gienapp’s new book creates problems for original methods originalism, the originalist approach that we have developed. But, unfortunately, Balkin misunderstands original methods. Balkin writes: “Original methods originalism is based on the assumption that there was a general consensus among well-trained lawyers about how to interpret the Constitution at the time it was adopted.” Balkin repeats this claim later in the post. But we have never claimed that there was such a general consensus. And, in fact, we have disclaimed relying on that consensus. In short: original methods works both interpretively and normatively whether or not there was a consensus on interpretive methods.
Our Previous Writings
We are not sure where Balkin came up with the view that original methods assumes a consensus on interpretive methods. Perhaps that is how he thinks about it. But we have never said it. In our book, we wrote: “In this book we do not determine the amount of evidence needed to establish the interpretive rules that are binding today.” (p. 249 n. 66.)
Moreover, Balkin’s post is even more disturbing in that he appears to believe that we are unaware that there was a dispute about the interpretive rules. That the developers of original methods originalism would be unaware of this is, well, unlikely. In fact, in our previous work, we draw attention to the sharp disagreement between St. George Tucker and Thomas Jefferson, on the one hand, and Chief John Marshall on the other about the content of interpretive rules. (p. 128.) We also noted that “in both the statutory and constitutional areas, there is some evidence that interpretation was primarily textualist and some evidence that it was intentionalist, although we believe that textualism was more strongly supported at the time of the Constitution’s enactment.”
Original Methods as an Interpretive Approach
Original methods is both an interpretive approach and a normative theory. The interpretive approach holds that the original meaning of the Constitution is based on the meaning that would be given to the Constitution based on the interpretive rules that were deemed applicable to the document at the time.
The interpretive approach works most simply if there was a consensus as to the interpretive rules. And to the extent that there was a consensus as to some of the interpretive rules – something we do believe existed – then of course one would follow those interpretive rules.
But the interpretive theory still works even if there was a disagreement about the correct interpretive rules. In a recently delivered paper, Unifying Original Intent and Original Public Meaning, we argue that one should apply the interpretive rules that people at the time would have employed. If there was disagreement as to those interpretive rules, one should look to the methods that people at the time would have used to determine what the correct interpretive rules were.
Based on our understanding of these methods that people used at the time for determining the interpretive rules, we reach an important conclusion. Where there was disagreement about which interpretive rule to apply, they would choose the interpretive rule that were better supported than the alternative rule. Even if the support for two opposing interpretive rules were relatively equal, they would choose the rule that had greater support – what we call the 51/49 rule – a rule we have previously applied to resolve ambiguities in the text.
In short, where there was disagreement, people at the time would not simply say we cannot decide. Instead, they would resolve that disagreement by following the more strongly supported interpretive rule. Thus, uncertainty about the appropriate interpretive rules was no more problematic than uncertainty about the correct meaning of a term – both were resolved by methods existing at the time. Since these rules would have been deemed applicable to interpreting the Constitution at the time, they help determine its meaning in the language of the law.
One might ask what are the content and nature of those rules? This subject is too complicated and wide ranging to fully analyze in a blog post, but we have discussed it in more detail in the paper mentioned above, which is soon to be posted on SSRN. Like the rules for determining original meaning, these rules involve a variety of considerations that must be weighed in order to determine what interpretive rule is better supported.
One famous example of disagreement was that between John Marshall and Thomas Jefferson on how strictly to interpret the Constitution. That disagreement turned on what type of document the Constitution was. Jefferson believed strict construction was warranted because treaties should be interpreted strictly to preserve sovereignty and the Constitution was a compact or treaty. Marshall thought, to the contrary, that the Constitution was fundamental law and thus a conventional interpretive rule for compacts should not be applied. We believe that Marshall's view of the nature of the document was better supported. As we show in our forthcoming article, the view that the Constitution was a compact appears to be less well supported in the early and most probative debates in constitutional intepretation, like that over the Bank of the United States.
Original Methods as a Normative Theory
The disagreement about the interpretive rules is also consistent with the normative theory underlying original methods. In our view, the supermajoritarian procedure for enacting the Constitution made it likely that the document was a good one. And to enforce the meaning of that document, we should employ the interpretive rules that people at the time would have employed. Otherwise, we would not secure the meaning that they enacted.
While the normative argument works more simply if there was no disagreement about the interpretive rules, it still works if there was disagreement. The state ratification conventions would have evaluated the document based on a judgment as to what its meaning was. If there was uncertainty about what the meaning was or the interpretive rules that would be applied to it, then that would probably reduce the net benefits of the document they were evaluating. Ultimately, the ratification conventions would have to decide whether the expected net benefits of the document outweighed the uncertainty that they had about its meaning.
In some cases, the conventions might decide that this uncertainty needed to be clarified, as many ratifiers did when they insisted on a Bill of Rights as a condition of their supporting ratification. But in all cases a vote for ratification meant that the ratifier believed the expected net benefits of the document outweighed its uncertainty. Ratification, then, took uncertainty into account and still concluded that the document was beneficial.
John O. McGinnis is George C. Dix Professor in Constitutional Law at Northwestern Law School. You can reach him by e-mail at j-mcginnis at law.northwestern.edu
Michael Rappaport is the Hugh & Hazel Darling Foundation Professor of Law at the University of San Diego and Director, Center for the Study of Constitutional Originalism. You can reach him by e-mail at mrappaport at gmail.com