Thursday, June 04, 2020

Assessing Originalism: Ten Years (Roughly) After Heller and Living Originalism (Part I)

Stephen Griffin

Since posting my article “Optimistic Originalism and the Reconstruction Amendments” to SSRN, I have been planning (intending!) to do a series of posts that illustrate its themes.  Because the abstract is readily available, I will not summarize the article here.  I will use this post to highlight one particular aspect of its argument.  Then I will offer two broader reflections on the course of the originalism-nonoriginalism debate “ten years after” District of Columbia v. Heller (2008) and the publication of Jack Balkin’s seminal work Living Originalism (2011).  Sort of a mid-ten years correction, if you will.

“Optimistic Originalism” critiques relatively novel forms of public meaning originalism (or original public meaning, OPM) that simultaneously promise sophisticated advances to originalist arguments and to underwrite contemporary case outcomes based on the Reconstruction amendments, the Fourteenth Amendment in particular.  The methodology it applies is that favored by historians, which I term “historical inquiry” and define specifically as the baseline from the past provided by the self-understanding of those who participated in the advocacy, adoption, and ratification of the amendments.

Using historical inquiry to create a baseline corrects a common misconception about the structure of the debate between originalists and nonoriginalists.  As the debate progressed, originalists held that original intent and original public meaning were the only possible options to determining the meaning of the amendments on the basis of archival (rather than contemporary) evidence of meaning.  This led originalists to make the largely hidden assumption that historians, to the extent their efforts were relevant to disputes over constitutional meaning, had to be pursuing one of these options – typically assumed to be “original intent,” or, more precisely, ascertaining the collective intent of the group of framers causally responsible for transforming the proposed amendments into the law of the land.

But this assumption was false.

Even in the 1980s, historians had already criticized and rejected the “original intent” option – at least in its collective guise.  In fact, historians were pursuing, however undertheorized, a distinctly third option that is at least of occasional relevance to inquiries into constitutional meaning.  In the article, I define this option in terms of the self-understanding of the participants as noted above.

The relevance of this “third option” became more obvious when historians reacted to Heller.  In retrospect, Heller was a missed opportunity for originalists and historians to engage more meaningfully with each other.  It is well known that some historians were not impressed by the historical aspects of Justice Scalia’s analysis – at least those that were testable.  I put it this way  because one way to understand Scalia’s OPM methodology is that it is an elaborate way of avoiding the sort of analysis in which historians specialize – that is, analyzing the situated point of view of actual people in the past.  This remark is not meant to be sarcastic or amusing.  In some ways, OPM seems designed to dodge problems that historians have long debated in assessing archival evidence.

This became clearer when historians responded to Scalia’s opinion.  Their responses were in fact cited by Justice Breyer in dissent in the next important gun rights case, McDonald v. City of Chicago.  Breyer pointed out that historians were not convinced by Scalia’s argument and cited several articles.  Not all of the articles Breyer cited are pertinent here.  But one in particular – “Why the Second Amendment Has a Preamble” by the respected legal historian David Konig (56 UCLA LR 1295) – demonstrated the differences between originalists and historians in a way that suggested problems for the future of OPM.  Konig focused on the issue of whether the “prefatory clause” of the Second Amendment, as Scalia termed it, was legally relevant to the “operative clause” granting a right to keep and bear arms.  It is the status of Konig’s arguments from an OPM perspective that is troubling.  Konig criticized Scalia’s reliance on nineteenth-century legal treatises, thereby ignoring the eighteenth-century context in which the amendment was adopted.  Sounds simple enough, but originalists insisted then and continue to insist that they take proper account of context.  In writing my article, I eventually had to conclude that this is ultimately misdirection and that contemporary originalists either have no place in their theory for what historians mean by “context” or that they are fudging the issue.  There remains an analytical gap between what historians and originalists mean by context.  Unfortunately, however, originalists do not acknowledge this difference.  My article therefore does not analyze the OPM account of “context” because the analytical waters here are too shallow.

Another missed opportunity for at least a relative rapprochement between originalists and nonoriginalists occurred when leading originalists reacted to the publication of Balkin’s Living Originalism.  I’ve read over the reviews of Balkin’s work several times (and participated myself by writing my own review).  Although a number of originalists acknowledge the importance of Balkin’s work, I still can’t tell what position originalists take in general on the line Balkin draws between “interpretation” and “construction.”  Neither can other leading scholars.  The issue is important!

Balkin in effect offered a deal to originalists and living constitutionalists.  Accept that there is a difference between “interpretation” as the determination of the semantic meaning of the text (understanding that some consultation of “context” is allowed – there’s that troublesome point again) and “construction” as, well, everything else, but certainly including the application of semantic meaning to specific cases.  It requires some argument to show this, but this has the theoretical effect of moving the entire originalism-living constitutionalism debate to the realm of construction (a point made clearly in a recent post by Lawrence Solum).  Whatever you think of Balkin’s deal and whether it represents theoretical progress, originalists (and, truth to be told, some living constitutionalists) could never bring themselves to say whether they accepted it or not and why.  Even today, as a recent post on this subject by Mike Ramsey indicates, the boundaries between interpretation and construction are contested.  There is no obvious theoretical or non-normative reason why OPM originalists should not accept a large construction zone.  However, this would be the practical equivalent of accepting that there is no strong difference between originalism and living constitutionalism, as Eric Segall and others have urged.

This is relevant to "Optimistic Originalism" because the continuing resistance to fully accepting Balkin’s deal has significant implications for the effort by OPM originalists to understand the Reconstruction amendments, the Fourteenth Amendment in particular, in an optimistic light.  My next post will explore some difficulties in understanding the achievement of Reconstruction that continue to trouble both legal scholars and historians.

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