Wednesday, July 01, 2020

AMA: Chris Green asks about the thin theory of original public meaning


Chris Green: 1. This is a variant of a question I think Stephen Sachs once asked you several years ago at the San Diego originalism conference. Suppose there are two rival principles, Principle A and Principle B, and each fits the bare constitutional text equally well.  The adopters of the text agreed with Principle A and thought it was expressed in the text, but Principle B is a better idea normatively for today’s world. I recall that at the time you said Principle B would be the one interpreters should use, rather than  Principle A. That does not seem like the answer of an originalist, but at most the answer of a textualist showing a degree of respect to the founders. Would that still be your answer (if I have not misremembered it)?

2. Why does Living Originalism not focus more on the ways in which the founders connected their principles to the text? This is the chief goal of originalist research, as I see it. For instance, lots of Republicans explained at length in 1872, and more compactly in 1866, why the social/civil/political trichotomy—very like  Matthew Hale’s jus privatum/jus publicum/jus regium distinction—was required by the text of the Privileges or Immunities Clause; the semantic tie between “civil” and “citizen” meant that only “civil rights,” not political or social rights, were “privileges  or immunities of citizens of the United States.” (See ). If this trichotomy identifies the principle expressed by the text in its original context (as Living Originalism seems to concede at p. 227-28), why is it not binding on interpreters today?

JB: These two questions are variations on a single theme: why I hold to a thin theory of original meaning? According to the thin theory, original public meaning is the meaning of the Constitution's words and phrases as they would have been understood by the general public at the time of adoption, including any generally recognized legal terms of art. Where original public meaning is ambiguous, we look to adoption history. But where the original public meaning is merely vague, or employs standards or principles, it is subject to subsequent construction.

Under the thin theory, we are not required to follow the original legal construction of the text by lawyers at the time of adoption, although we may look to the history of previous constructions in forming constructions of the Constitution in our own time. That is why, in your first question, we have a choice between principles. If principle A is a racist or sexist construction, for example--and some original constructions are in fact racist or sexist--we do not have to adopt it today.

I came to the thin theory over time. It was not clearly articulated in my 2007 article on Abortion and Original Meaning. I gave a version of that 2007 paper at Ronald Dworkin's workshop at NYU in November of 2006. He pointed out at the workshop that fidelity to the text does not require you to be bound by contemporary lawyers' legal construction of the text. The original legal construction is just a construction like any other.  It's just another kind of original expected application. Mitch Berman made a related point in his 2007 response to my paper. He argued that if the question is the original public meaning of the text, it does not follow that interpreters must be always bound by what I called the original legal principles.

Both of these criticisms eventually led me to a thin theory of original meaning. This allows for the development of new principles and new constructions to implement the text over time. The 2007 article doesn't make this point with sufficient clarity, and so I made this clear in 2011 when I wrote Living Originalism (and in later writings). The actual expression, "thin theory," appears in two articles from 2013 published after the book.

Your choice of the tripartite theory of citizenship is a good way into this issue. I agree with you that many adopters of the Fourteenth Amendment advocated some version of the distinction between civil, political, and social equality. They disagreed, however, about what went into each box. So the categories were in flux leading up to and even after the adoption of the Fourteenth Amendment. One reason they were in flux is that these distinctions were tied up in the racial politics of the time, as I will discuss below.

One element of the tripartite theory was that men and women both enjoyed civil equality. But civil equality was defined in part by common law rights. At common law, the doctrine of coverture meant that a woman lost most of her common law rights upon marriage, because her legal identity was merged into that of her husband. This meant that although single women could make contracts, earn income, and own property in their names, married women could not, unless, of course, the state had altered the common law to some degree through a married women's property act.

The adopters of the Fourteenth Amendment assumed that the Fourteenth Amendment did not make any part of the common law unconstitutional. Indeed, the concept of civil equality was premised on the equal enjoyment of common law rights. So in the debates over the Fourteenth Amendment, when the question was raised, both John Bingham and Thaddeus Stevens waved away objections that the new amendment would lead to the abolition of coverture rules. (See sources cited in L.O., p. 418 n. 24).

You ask: "Why does Living Originalism not focus more on the ways in which the founders connected their principles to the text? This is the chief goal of originalist research, as I see it." If we adopted this approach, we would have to conclude that states could still withdraw rights from women upon marriage, because that is how "the founders connected their principles to the text," in your words. Your approach, at least as I understand it, requires that we maintain the original legal constructions of the text, or, to use another formula, that we are bound by how a well-trained lawyer in 1868 would have understood the legal principles enacted by the text.

I reject this approach. To me it is just another version of original expected applications. Many originalists argue that they are not bound by original expected applications, because they accept that factual changes matter to how we interpret the Constitution. I agree, but this does not dispose of the problem of coverture. The problem is not that men were wrong about the facts of women's capacities. The problem is that the initial legal construction of the Fourteenth Amendment assumed that the new Amendment would enforce, and not overturn, people's common law rights. The coverture rules are part of the original legal construction. You can't get rid of this problem by saying that the facts, or the understanding of facts, have changed. The problem is the original legal meaning, not the facts.

I think that many originalists who accept my distinction between original meaning and original expected applications do not actually understand what I meant by the distinction. Look at my definition of original expected applications in Living Originalism, p. 7: "Original expected application asks how people living at the time the text was adopted would have expected it would be applied using language in its ordinary sense (along with any legal terms of art). Thus,
the original expected application includes not only specific results, but also the way that the adopting generation would have expected the relevant constitutional principles to be articulated and applied."

This definition of original expected applications includes not only factual assumptions, but also  how lawyers at the time would have construed the text. The original reading of the text by contemporary lawyers, in my view, is just another version of original expected applications. It is the original expected application of lawyers. Because lawyers are creatures of their time, the initial legal constructions of a text will often reflect the public's--or political elites'--assumptions about how the text should be applied. For that reason, initial legal constructions will tend to conform to original expected applications. In this case, the sexism of the founders was reflected in their legal constructions of women's rights under the Fourteenth Amendment, and they came up with legal constructions that justified that worldview.

For this reason, much of the work of originalist scholars-- trying to discover how lawyers would have construed the text at the time of adoption--may be helpful to construction, but it is not part of the original public meaning that is binding on all later interpreters.  What you regard as the "chief goal of originalist research" is actually the study of original legal constructions. 

Those constructions are very important in the construction zone, but we use them there for a different purpose: to decide on the best construction today.  Some original constructions remain valuable guides to construction today, while others, especially in the areas of race and sex, are singularly unhelpful and are rightly discarded by courts today.

I agree that we do care about original legal constructions for generally recognized legal terms of art like "letters of marque and reprisal," although my view is that if these terms of art are common law terms of art, then these terms, like other parts of the common law, are subject to common law development. I do not hold that the Constitution freezes the meaning of common law terms in time, but rather incorporates these terms as part of the document. I don't think that "equal protection of the laws" or "privileges or immunities" were generally recognized legal terms of art whose meaning was at variance with their ordinary meanings to members of the general public. I do believe that "due process of law" was a specialized legal term of art. It concerned, among other things, separation of powers ideas, a prohibition on class legislation, as well as obligations of fair process.

The original legal constructions may be useful to us in developing contemporary constructions, but how we use the past in *interpretation* is very different from how we use the past in *construction.* In interpretation we look to what binds us in the present. In construction, we look to how best to implement the text in our own time, and the past may be helpful to us in that endeavor. Put another way, in construction, the past is a *resource* and not a *command.*

It would make sense that, for some parts of the Constitution, original constructions would be very helpful and persuasive in constructing the Constitution today. That is true, for example, in areas like presidential impeachment, were there are very few precedents and judicial decisions. At the same time, for other parts of the Constitution, original constructions will be less helpful and persuasive. This is especially so when the question concerns race or sex.  The original legal constructions of the adopters of the Reconstruction Amendments reflected the mores of their times. Those mores were racist and sexist by our present-day standards.

In particular, the distinction between civil and social equality, as constructed by the Reconstruction adopters, was not an innocent legal conception. It drew on much older legal ideas. But during Reconstruction it was articulated and developed in order to assure racial moderates and conservatives that the new Fourteenth Amendment would not make blacks and whites social equals. The way that the civil/social distinction was articulated by lawyers and politicians at the time of adoption was designed to maintain the social supremacy of whites while accepting that blacks were owed civil (and later political) equality.

It is true that there were anti-racist Republicans who rejected this construction! In their view, civil equality meant that blacks and whites should be equal in all relevant respects. But they were in the minority. Their views did not win out, no matter how much we want to tell ourselves that they did. (This point is connected to Stephen Griffin's arguments about how we tend to look at Reconstruction anachronistically and optimistically.)

The whole point of telling white voters in 1868 that the Fourteenth Amendment would not enforce or guarantee the social equality of the races was to allow white voters to maintain a version of what we would today call white supremacy. This is a version of what my colleague Reva Siegel calls "preservation through transformation." It is the attempt to maintain elements of a preexisting status regime while reforming it and ameliorating it. In this case, the Reconstruction Amendments, in the hands of well-trained lawyers of the time, maintained the social inequality of whites and blacks while dismantling the earlier system of chattel slavery.

In the hands of the adopters, the civil/political/social distinction was deeply freighted with ideas about racial and sexual hierarchies. It was a device for rationalizing the continued subordination of women and the social inferiority of African-Americans. The Reconstruction founders' version of this distinction was an enormous advance on the system that existed before. Even so, it still stinks of racism and sexism, and we are better off without it.

To be sure, we still retain a version of the civil/political distinction today: children and resident aliens cannot vote. But our version today is not the Fourteenth Amendment founders' version. And the great achievement of the Second Reconstruction was to decisively reject the founders' construction of the civil/social distinction. That earlier construction was racist. We cannot wish this away.

Many conservative originalists, having abandoned original intention and original understanding, have tried to maintain a relatively thick account of original meaning by turning to original legal meaning. This approach has the advantage of narrowing the possible permissible answers to questions of constitutional interpretation. I well understand why many conservative originalists want to do this. They are uncomfortable with a broad zone of constitutional construction. They want relative determinacy and they want to limit judicial discretion. Above all, they want legal argument to be more of a politically neutral method and less of a debate about ultimate values. All of this is completely understandable.

But my concern is that if conservative originalists insist that original public meaning is always bound by original legal constructions, they will have to twist themselves into knots to avoid the sexism and racism of the Reconstruction founders. This approach also causes innumerable problems under other parts of the Bill of Rights, but it is most obvious in these cases. If you want to know why originalism has a bad name among many women and people of color, this kind of methodology is a good place to start.

And here's the irony: Today's conservative originalists are creatures of the 21st century. They are people of today with today's values. They do not want to be racist or sexist. They want the kind of original legal meaning they can be bound to and follow. They want an original legal meaning that they can be proud of--or at the least not be ashamed of. But if they adopt a relatively thick theory of original legal meaning, and then apply this approach to sex and race equality, they must twist themselves in knots to do what is right. They must engage in elaborate historical sophistries to avoid delegitimating this version of originalism.

They shouldn't have to do this to themselves. We are much better off recognizing that original public meaning does not tie us to the legal conceptions of 1868 lawyers. We may adopt those constructions if they make sense today, but we should not feel bound in any way to accept the racism and sexism of the Reconstruction founders, much less have to twist the history to avoid being trapped by their moral shortcomings.

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