Tejinder Singh Contributor

Posted Fri, October 7th, 2011 5:00 am

Originalism and the Supreme Court

This SCOTUSblog Community discussion is about originalism, the interpretive philosophy that employs the original meaning or intent of the Constitution as the primary tool to discern its meaning today. The threads below ask whether originalism should guide the Supreme Court’s approach to constitutional questions; whether it does, in fact, do so; which form of originalism is most legitimate; whether particular constitutional questions are well- or poorly suited for the application of originalism; whether originalism necessarily produces  conservative outcomes; and also what alternatives to originalism are available. We look forward to hearing your thoughts on one of the most vibrant debates in constitutional law today.


  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on the extent to which originalism should guide constitutional interpretation in the Supreme Court.

    • Andrew Coan – 4 Promoted Comments

      Should originalism guide constitutional interpretation in the Supreme Court? Rather than take sides here, I prefer to use this space to survey the arguments that might support an affirmative answer. They are surprisingly few in number. And because originalism is a political phenomenon as much as a constitutional theory, they are often lost in the crossfire.

      Before I begin, it is necessary to clear up a persistent confusion. Proponents of originalism sometimes speak and write as if their position needed no justification. A judge’s job is to interpret the Constitution. Textual interpretation entails the search for original meaning. Ergo, judges should be originalists. QED. This cannot be right. As leading originalists concede, nonoriginalism is the norm in American constitutional practice. It is certainly the norm in most other constitutional systems around the world. That does not mean that nonoriginalism is correct or inevitable. It does mean that originalism is a choice. As such, it requires justification.

      There are four arguments that might do the trick:

      First, originalism might be compelled by respect for popular sovereignty. The Constitution derives its democratic pedigree from the state conventions that ratified it. And what those conventions endorsed was the document’s original meaning. On the other hand, the members of these conventions are all long dead and lived in circumstances radically different from our own. It is hardly obvious that popular sovereignty requires their views to prevail over those of contemporary elected officials, which is just what originalism entails.

      Second, originalism might be necessary to preserve the rule of law and in particular to constrain discretionary judicial authority. On this view, the essential purpose of a constitution is to subject the power of judges—and, through them, other government officials—to fixed legal constraints. Only originalism is consistent with this purpose because only originalism treats the meaning of constitutional constraints as fixed. On the other hand, in actual practice, original meaning is frequently and notoriously indeterminate. More fundamentally, every mainstream theory of constitutional interpretation constrains in some way. The question is which constraints we should prefer.

      Third, originalism might produce better consequences than competing approaches. This is the usual sort of justification for setting up government institutions in one way rather than another, and some leading originalists have embraced it. On the other hand, good consequences are in the eye of the beholder. For those who dislike the substance of original meaning, this argument is a reason to reject rather than embrace originalism. Moreover, once consequences are admitted to be the relevant measuring stick, originalism begins to seem superfluous. Why should interpreters follow original meaning as a reasonable but obviously imperfect mechanism for achieving good results rather than pursuing such results directly?

      Fourth, and finally, originalism might follow logically from our commitment to a written constitution. Why in the world should we care about marks on a page—much less treat them as binding law—if we do not care about their meaning to those who put them there? On the other hand, why do dozens of other countries consider themselves committed to written constitutions while openly disavowing originalism?

      There you have it. If you find one or more of these four arguments persuasive, you should be an originalist. If not, you should not. Wherever you come down, remember that originalism is a choice. Like any other choice, it requires justification.

      Andrew Coan is an assistant professor at the University of Wisconsin Law School, where he teaches constitutional law, federal courts, and related subjects. His scholarly papers are available at http://ssrn.com/author=670199.

      • Brian Holt – 0 Promoted Comments

        Professor Coan points out that one argument in favor of originalism is that it is compelled by respect for popular sovereignty. That is an argument often used, but it assumes a premise. Does originalism really respect popular sovereignty? When judges and Justices use originalism as a tool of constitutional interpretation they typically look to the Framers’ understanding of the words. Putting aside the fact that different judges and Justices prefer the understandings of different Framers (which itself posses a problem for originalists), it was ratification that made the constitution law, not the signatures of the Framers. The meaning of the constitution was hotly debated in the press, the various state conventions, and amongst the people. Each delegate to the state conventions likely had his own understanding of the words, as did each citizen, which is where this argument breaks down. The act of ratification, which made the constitution law, also gave it meaning. True fidelity to an original understanding and popular sovereignty would need to find and apply some meaning commonly understood accepted by all citizens of that time, or at least all the state conventions. If it is difficult to find a meaning the Framers accepted, it is impossible to find a meaning everyone accepted. Probably because there wasn’t one.

        One last point. If you read James Madison’s notes on the Constitutional Convention and accept them as a generally accurate description of the proceedings, it is clear that Framers intentionally left some provisions vague because the delegates could not agree on more specific language. Some provisions were proposed and rejected, and the delegates accepted more ambigious language with the expectation those provisions would be given meaning over time. If a judge interprets such a provision by applying some original understanding of the words isn’t that judge betraying the original intent of the Framers?

        • John McGinnis and Mike Rappaport – 1 Promoted Comment

          Mike Rappaport here:

          Do you have an example of a provision that was clearly left vague because they couldn’t agree?

    • Geoffrey Stone – 2 Promoted Comments

      The Framers who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of “freedom of speech” or “due process of law” or “regulate Commerce . . . among the several States” or “equal protection of the laws,” it is difficult if not impossible to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in “originalist” analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence.

      Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. Indeed, the notion that any particular moment’s understanding of the meaning of the Constitution’s provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.

      For these reasons, the conservative doctrine of “originalism” has been largely discredited as a serious method of constitutional interpretation. (I explored this issue in greater detail in an ACS Issue Brief, http://www.acslaw.org/sites/default/files/Stone_Marshall_-_The_Framers_Constitution_Issue_Brief_1.pdf, that I recently wrote with UNC law school professor William Marshall.)

      This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them – as a set of general principles and aspirations, rather than as a collection of specific and short-sighted “rules.”

      The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.

      The text of the Constitution reflects this vision. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience and judgment inform our understanding.

      • Randy Barnett – 4 Promoted Comments

        Geoff writes:

        “Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time.”

        Perhaps some originalists 20 years ago made such a claim. New Originalists make no such claim about how “those who crafted and ratified our Constitution intended” it be interpeted.

        “But this view erroneously attributes to the Framers a narrow-mindedness and short-sightedness that belies their true spirit. Indeed, the notion that any particular moment’s understanding of the meaning of the Constitution’s provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident understanding of their own achievements and aspirations.”

        Why does Geoff care what the Framers thought? What their “true spirit” was or was not? Whether or not they “held a much bolder or more confident understanding”? He is offering something he does not care about to refute a position originalists today do not hold.

        What matters is what the Framers said, not what they thought. What was enacted into law, not the intentions of those who enacted it. And what was said does not matter because the Framers or ratifiers intended it to matter. It matters because we the living are committed to following “this Constitution.” But, as I observe in my comment, we are only committed to following the information expressed by the text; where that information is insufficient to resolve a current case or controversy, it must be supplemented by other decision rules. That process is more properly called constitutional construction rather than interpretation (though the labels are unimportant so long as the two activities are distinguished).

        But why are we bound to 2 Senators per state, given the grossly disproportionate populations of California or Rhode Island? Why does not the underlying spirit of the Constitution empower judges to treat “2” as metaphorical, or even irrelevant for that matter, given that our understanding of democracy has evolved. Why exactly do we the living care that the ancient document says “2”? (Because they intended we have 2 senators per state?) For that matter, why do bills have to pass both houses of Congress to become law? Serious answers to these questions will closely resemble why we should adhere to the semantic meaning of the *other* words in “this Constitution” at the time of its enactment, though other words and sentences may not be a determinate in reaching a unique answer to a particular case or controversy as these seem to. Hence the need for constitutional construction, but only for those constructions that do not contradict what the Constitution does say.

      • Michael Huston – 0 Promoted Comments

        It is a hearty compliment to Originalism that Professor Stone, in a post decrying Originalism as “discredited,” seeks to justify his disdain by reference to the framers’ original understanding of the Constitution. That is, Stone argues that the framers’ original intention for the Constitution was that their understanding would not govern in perpetuity. But of course the committed originalist can wholeheartedly endorse this position, were the history to support it.

        The central flaw in Professor Stone’s non-originalist position is that it would replace our government under law (where law exists in the form of a constitutional text whose meaning we can seek to know in advance) with a government under certain “aspirations,” “values,” and “concerns,” as they are discerned by judges who were not elected and who cannot be removed.

        • Joe Cocurullo – 0 Promoted Comments

          “it would replace our government under law (where law exists in the form of a constitutional text whose meaning we can seek to know in advance) with a government under certain “aspirations,” “values,” and “concerns,” as they are discerned by judges who were not elected and who cannot be removed”

          What if the Constitution actually sets forth “law” that provides open-ended “values,” “concerns” or “aspirations” which in specific application develop — common law like — over time? Concepts that we “can seek to know in advance” to some degree, but the ultimate application twenty years from now will be somewhat unclear, just as Scalia changed his mind on what various bits of text mean?

          What is “equal protection of law” or “cruel and unusual punishment” if categorical concerns? To the degree they are “law,” they are a special kind of law unlike some detailed fixed statute, which we know by now is itself open to some flexibility in application over time. Just as the true meaning of the Magna Charta’s provisions were not limited to what King John’s enemies thought they meant in the 13th Century, the Constitution’s provisions are applied differently as time moves on.

          James Madison recognized this in his veto message on the Second Bank. He recognized that at some point acceptance by the legislature, people and courts provides an authoritative meaning to disputed constitutional text, text that might develop new meanings as new generations (I refer readers to two books by Prof. Gerard Magliocca) develop.

          This is how things has been going for two hundred years. The Breyers of the world are not “replacing” anything here. Brennan et. al. quoted original understanding plenty of times. When it suits them (see Scalia’s concurrence in McDonald v. Chicago), many originalist judges rest on precedent or other concerns. Original understanding as with text is a useful interpretative tool, but the idea that those who see it as but part of the story aren’t really respecting “the law” leaves something to be desired.

      • Lawrence Solum – 4 Promoted Comments

        I am quite surprised to see Geoffrey Stone characterize as an intentionalist theory. Since the mid-1980s, the mainstream of originalist theory has moved in the direction of “public meaning” originalism. There are a few originalists who believe that the semantic intentions of the drafters constitute the meaning of the text, but this view does not entail the conclusion that the relevant intentions are ” what they did or did not think about concrete constitutional issues”–quite the contrary, it is the view that what matters is their semantic intentions regarding the words they drafted.

    • Louis Elrod – 1 Promoted Comment

      As a non-lawyer, it seems to me that originalism should be the cornerstone of interpretation of the Constitution. The Constitution is the contract by which we understand how we govern ourselves. In order for citizens to have order, consistency and justice in their lives this contract must provide a clear understanding of the limits of government, the interactions among the states and the relationship of the citizen to his government. The interpretation of the Constitution must be consistent to preserve the integrity of the union and the relationships among the federal government, the states and the people. The application of the Constitution must be consistent and understandable to the citizens so the people have a dependable governmental framework on which to plan their lives and the lives of their children and descendents. This consistency is best achieved when application of the Constitution begins with the text, recognizing the powers and limitations of the government, and proceeds to the issue.

      When the meaning of the Constitution can change as situations change; when importance of portions of the Constitution are diminished in favor of others; when the meaning of the Constitution can be superseded by the will of a few, then we live in an unpredictable society where political power provides the ability change the rules of the game to favor some at the expense of others. The resulting unpredictable governmental framework precludes the ability of the people to plan their futures and diminishes their “pursuit of happiness”.

      • Bradley Smith – 3 Promoted Comments

        Louis,

        My largest issue with your response is the absoluteness with which it is made. If the Constitution must remaim unchanged in order to preserve ‘the integrity of the Union,’ then there is no room for adaptation to circumstances. While changing the interpretation of the document ad nauseum would be problematic, I fail to see how moving beyond the reasonable person standard that originalism lives by is inherently problematic.

        Take, for example, the case currently scheduled for argument this term, Jones v. US, which pertains to warrantless wiretapping of a car. Unless my reading of your response is mistaken, such an action would be inarguably constitutional because a reasonable person at the time of the writing of the fourth amendment would not have thought it to violate the protection from search and seizure.

        My response to the question of originalism necessitating conservative results also provides and example – cruel and unusual punishment. If I may quote myself:

        According to this theory, the best way to resolve disputes arising about this clause is to look at what a reasonable person at the end of the 18th Century would view as cruel and unusual, and forbid such punishments as unconstitutional. Putting aside difficulties in determining a reasonable person’s thoughts from two hundred years ago, the outcome would likely allow beating, whipping, and branding at a minimum, with death being a completely permissible punishment.

        While the Constitution should not be viewed as something to be changed on a whim by nine people sitting at a bench, neither should they be afraid to adapt it to modern problems that the writers could have hardly conceived of, much less prepared for.

        • Louis Elrod – 1 Promoted Comment

          Bradley,

          First, I never said “the Constitution must remaim [sic] unchanged”, I said the interpretation and application must be consistent. The fact is, the Constitution does remain unchanged unless it is amended or changed by constitutional convention. The Constitution is made up words and phrases that have meaning and the meaning that applies is the meaning that was agreed upon when it was ratified. To say that the words mean something else now, is to apply law to the land that was never adopted.

          Regarding your examples, your analysis makes my point. One cannot determined what outcome should be correct and then interpret the Constitution to give that outcome. If the Constitution originally allowed whipping, branding, etc. as punishment, then it certainly still allows it. The words have not changed and the meaning at the time of adoption still applies. If whipping and branding are not acceptable to society now, the congress or the states can pass laws forbidding such punishment or the Constitution can be amended.

          • Bradley Smith – 3 Promoted Comments

            Louis,

            Your first paragraph seems to assume that originalism is a fact, and not one of a myriad potential philosophies to guide constitutional interpretation. As to the substance of your argument, I find an issue with the following:

            The Constitution is made up words and phrases that have meaning and the meaning that applies is the meaning that was agreed upon when it was ratified. To say that the words mean something else now, is to apply law to the land that was never adopted.

            To use a different example, look to the 1st Amendment protection of freedom of speech. Different ‘reasonable person[s]‘ could easily have a variety of views regarding what constitutes speech in the context of constitutional protections. Such differences exist no more today than they did in the 18th century. Following logically from this is that even originalism can allow for a change in constitutional interpretation merely by changing the ‘reasonable person’ one looks to in reviewing an issue.

            To go back to the above quote, if there was a “meaning that was agreed upon”, originalism should yield the same answer given the same question. Yet even the two originalists on the current Court, Justices Scalia and Thomas, do not agree in every case (Gonzales v. Raich, to cite just one). Originalism is no less prone to personal interpretation than any other judicial philosophy; hermaneutics is inherently imprecise, regardless of any overarching thought process.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on the extent to which originalism does (or doesn’t) actually guide the Court’s decisions.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on which form of originalism (e.g., public meaning) is most legitimate and why.

    • Lawrence Solum – 4 Promoted Comments

      As posed, the question assumes that the relevant question is about the comparative legitimacy “public meaning originalism” versus “original intentions originalism” versus “ratifiers understanding originalism.” This is simply the wrong question. Originalism addresses two questions: (1) what is the original meaning of the constitutional text? and (2) what constraining force should that meaning have? The case for original public meaning originalism (and against intentionalism) is that it offers the correct answer to the first question–a question that is essentially factual in nature. The linguistic meaning of the text is not the product of a normative constitutional theory–it is dictated by the truths of theoretical linguistics and the philosophy of language as applied to the circumstances of constitutional communication. Given that the constitution was written by many drafters interacting in secret, they necessarily relied on conventional semantic meanings, the regularities of language use that we sometimes call “rules” of syntax and grammar, and the publicly known context of their activities. Those circumstances produced a text that could only have been understood on the basis of its “public meaning.”

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on whether particular constitutional questions are well- or poorly suited for the application of originalism, and which decisions of the Court best illustrate it.

    • Jamal Greene – 2 Promoted Comments

      Originalism best lends itself to constitutional questions that lend themselves to definite answers. By originalism I mean the family of arguments asserting that the meaning of the Constitution is fixed at or about the time relevant provisions were enacted. Certain provisions, such as the presidential and congressional age restrictions, resist any theory of evolving meaning. Other provisions, such as the Equal Protection Clause, resist any theory of fixed meaning. The vast majority of disputes we have over constitutional interpretation concern the latter sort of provision. This makes sense, given that questions of who we have become (rather than who we once were) tend to be the ones worth fighting about. The need to reconcile originalism with the reality of evolving constitutional meaning is among the reasons many academic originalists have seen fit to distinguish between constitutional “interpretation”—ascertaining the semantic meaning of a text—to which originalism is said to be essential, and constitutional “construction”—the doctrinal implementation of that text—which in hard cases originalism does not and cannot sensibly control. The claim that constitutional meaning must be fixed at some point in the past necessarily must be accompanied by the claim that constitutional meaning does not control much modern adjudication.

      • Lawrence Solum – 4 Promoted Comments

        Jamal Greene writes, “Certain provisions, such as the presidential and congressional age restrictions, resist any theory of evolving meaning. Other provisions, such as the Equal Protection Clause, resist any theory of fixed meaning. The vast majority of disputes we have over constitutional interpretation concern the latter sort of provision.” Because of the ambiguity of the term “meaning,” it not clear what Greene intends to say. The language of the Equal Protection–the text–has a linguistic meaning (or “semantic content”) that is fixed in exactly the same way that the meaning of the age restrictions. This meaning does not “evolve”–it is a function of the context of utterance general linguistic facts that fix the meaning of words and patterns of syntax and grammar. If Greene is trying to say that the legal content of the doctrinal structure associated with vague and general clauses evolves, then I think many contemporary originalists would agree–although they might way that this is a matter of constitutional construction and not constitutional interpretation.

        • Jamal Greene – 2 Promoted Comments

          To answer Larry’s question, when I refer to constitutional meaning in the sentence he quotes, I mean it in his second sense, what he and others would call a product of constitutional construction. (Because I believe this is the sense most people have in mind when they discuss the meaning of the Constitution, I disagree that what I intended to say is unclear, even if the “meaning” of the word “meaning” is ambiguous in some technical sense.) As my post suggests, I agree with Larry’s further point that some originalists would agree with me and, as mentioned, that some would refer to evolving “meaning” in the constitutional sense as “construction” rather than “interpretation.” Where Larry and I may disagree, however, is that I do not believe this terminological clarification bridges any interesting gaps between “originalists” and “living constitutionalists.” There remain powerful and trenchant disagreements over constitutional adjudication between those who call themselves originalists and those who call themselves living constitutionalists. These labels serve as means by which participants in constitutional argument announce their ethical commitments — grounded, for example, in a restorative versus a redemptive vision of the good — and its mapping onto the battle between these competing commitments is what makes “originalism” interesting. My point was that these battles tend to be waged over vague constitutional provisions whose meanings (again, in the second sense) are not sensibly fixed in time.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on whether originalism necessarily produces conservative outcomes.

    • Doug Kendall – 1 Promoted Comment

      At a remarkable Senate Judiciary Committee hearing yesterday featuring two Supreme Court Justices – Antonin Scalia and Stephen Breyer — Justice Scalia drew laughter with his predictable line that he wished the “living Constitution would die.”

      The funny thing is that, to a large degree, it already has. Dead or dying, too, is the version of originalism that came into flavor in the 1980s with the writings of Robert Bork and the cheerleading of Attorney General Edwin Meese. While political debates and media accounts largely remain stuck in the 1980s deathmatch between living constitutionalism and original intent originalism, constitutional theorists across the political spectrum have moved on.

      That is the point of an article entitled Laying Claim to the Constitution: the Promise of New Textualism (http://theusconstitution.org/blog.history/?p=2947), written by University of Virginia Law Professor Jim Ryan, which Constitutional Accountability Center has released recently as a discussion draft.

      New textualism is the name we have given to a growing consensus among scholars across the political spectrum about what is right about originalism and what is right about living constitutionalism. Like originalists, new textualists believe that constitutional interpretation must start with a determination, based on evidence from text, structure, and enactment history, of what the language in the Constitution actually means. Like living constitutionalists, new textualists believe that while the meaning of the Constitution does not change, application of those principles can lead to different outcomes as circumstances change.

      New textualists also reject the parts of originalism and living constitutionalism that deserve to be permanently discarded. Living constitutionalists are wrong to the extent they argue that the Constitution’s text has no fixed meaning and that judges have the power to remake the Constitution to meet the demands of the day. Originalists are wrong to the extent they let the intent of the Framers and ratifiers trump the meaning of the words they ratified. New textualists look carefully at history—both the enactment history of particular provisions and the broader historical events that produced the need for the text—to understand the meaning of the Constitution’s text. But they do not let history or original intent trump text.

      None of this is or should be very controversial. But there is a stubborn resistance among many progressives about admitting that the Constitution’s text and history actually provide clear guidance about important constitutional questions. And there is a stubborn resistance among many conservatives about following the Constitution’s original meaning when it points to a progressive outcome.

      The promise of new textualism is that it offers both conservatives and progressives an apples to apples conversation about the law and the Constitution. We all need to stop fighting about labels – living constitutionalism, originalism, judicial activism and the like – and start debating what the Constitution actually says and means.

    • Bradley Smith – 3 Promoted Comments

      Originalism, and more specifically original meaning, seems to lack any political leaning whatsoever. A problem, approached through the lens of original meaning, has two possible outcomes:

      1) There is an applicable part of the Constitution that can be applied to the issue, and the views of a reasonable person at the time the applicable part of the Constitution was ratified give a definite way to resolve the issue.

      or

      2) There is no applicable part of the Constitution, and as such the issue is to be resolved outside the judiciary.

      Of the two possible outcomes, neither one is inherently conservative.

      Option one can be better explored by using an example, such as the 8th Amendment’s protection against cruel and unusual punishments. According to this theory, the best way to resolve disputes arising about this clause is to look at what a reasonable person at the end of the 18th Century would view as cruel and unusual, and forbid such punishments as unconstitutional. Putting aside difficulties in determining a reasonable person’s thoughts from two hundred years ago, the outcome would likely allow beating, whipping, and branding at a minimum, with death being a completely permissible punishment. The death penalty is a traditionally conservative idea, and so using original meaning to permit the death penalty would be viewed as a conservative outcome.

      Original meaning seems to produce conservative results only because society has, on the whole, become much more liberal than it was 200 years ago. Were society today more conservative than in the past, original meaning would tend to produce results viewed as liberal. With this in mind, Originalism does not necessitate a conservative outcome. However, as applied to the American constitution the results will likely be conservative due to the shift in public values over time.

      Outcome 2 can also allow for both liberal and conservative outcomes. If the constitution has nothing to say on an issue, resolving that issue should be left to the legislature (according to my understanding of Justice Scalia’s legal philosophy. See his dissent in Romer v. Evans). This outcome will obviously change with the composition of the legislative branch attempting to resolve the issue. As such, outcome 2 does not necessitate a conservative outcome.

      Originalism appears to be favored by conservatives only because it hearkens back to the ‘good ole days.’ How the outcome of its use is viewed is dependent on how society has shifted its values in the time between the constitutional provision in question being enacted and the time it is challenged in court. Keeping this mind, it seems completely plausible to me that in an alternate universe the prompt reads: “In this thread, comment on whether originalism necessarily produces liberal outcomes.”

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on what philosophy, if not originalism, should guide the Court’s constitutional decision making.

    • Donald Goldman – 0 Promoted Comments

      Originalism in the skillful hands of Justices Scalia and Thomas is no more a limitation on a Justices policy preferences that the the theory of the living constitution. e.g. Deck v. Missouri, 125 S.Ct. 2007 (2005) where Justice Thomas, joined by Justice Scalia, recognized that “English common law in the 17th and 18th centuries recognized a rule against bringing the defendant in irons” this originalist view no longer applied because shackles were no longer painful and a defendant now was afforded counsel.

  • Randy Barnett – 4 Promoted Comments

    The Constitution is the Law that Governs Those Who Govern Us. A written constitution will only provide a law to govern those who govern us, if its meaning remains the same until it is properly changed, which is one way of defining “originalism.” Those who are governed by this law should no more be able to change, alter, revise or update it than each citizen can revise the statutes and regulations imposed upon him or her without going to the legislative or administrative process. For those who are governed by “this Constitution,” the updating process is Article V.

    The New Originalism — based on the original public meaning of the text — attempts to identify the semantic meaning of the words on the page at the time of their enactment. This is an empirical question about linguistic usage, not a search for collective group intentions.

    But due to problems of vagueness this meaning is sometimes not enough to resolve actual cases and controversies. When this occurs “interpretation” strictly speaking ends, and some nontextual, nonoriginalist, method of constitutional construction is needed. Much of constitutional law falls into this category of activity.

    Originalists disagree among themselves about how nonoriginalist constitutional construction should be done. But they agree that, however it is done, constitutional construction cannot be used to trump or override the original public or semantic meaning of the text itself. Which is what nonoriginalists sometimes advocate.

    This nonoriginalism is nonpartisan. Some progressives long tried to dismiss or trivialize the Second Amendment or Takings Clause, while some conservatives dismiss the Ninth Amendment and Privileges or Immunities Clause as nonjusticiable.

    Finally, whether the U.S. Constitution is “legitimate” is a separate question from what the constitution means. Indeed, how would one know whether or not any particular constitution is legitimate unless one first was able discern its meaning? Then, once the meaning of a constitution is discerned, one can ask the critical question of whether, on balance, it is good enough to provide a law making process that is capable of binding the individual in conscience to obey its commands.

    • Andrew Coan – 4 Promoted Comments

      Randy says that the meaning of the Constitution “remains the same until it is properly changed.” I think this tees up the right question: What should we recognize as proper in the way of constitutional change?

      Randy says the answer is Article V and only Article V. I certainly agree that amendments are one proper method of constitutional change. But are they the only one? Randy says they must be because government officials should have no power to change the law that defines and limits their power. This could be right, but it is not an a priori truth. It depends on the available alternatives. If the Constitution had been drafted by evil space aliens, we might well prefer to allow contemporary government officials at least some limited authority to decide the scope of their own powers. So too if the alternative is to live with constitutional meanings endorsed by long-dead generations, subject only to an almost impossibly stringent amendment process bequeathed to us by those same generations.

      In this circumstance, Randy seems to think our choices are limited to sticking with original meaning or scrapping the Constitution all together. If original meaning is good enough on balance, we are stuck with it in toto. But there is no reason to accept this choice set. Our existing, largely nonoriginalist constitutional practice–in which interpretation is constrained by the text but not original meaning, as well as precedent, legal culture, and ordinary politics–is a perfectly viable alternative. It may or may not be a superior alternative to originalism. But that question cannot be resolved on the grounds Randy has offered here.

      • Randy Barnett – 4 Promoted Comments

        No, our existing nonoriginalist practices have allowed government officials to slip their constitutional bonds. Andrew and many others thinks this has been an improvement over the enacted text. So be it. But this opinion is not unanimous. And he won’t like it much if nonoriginalist techniques slip the bonds of the text of the Constitution he does value. Unless the text is actually irrelevant for him. If so, he should admit it (as others have). But that is not our commitment to “this Constitution.” The reason why confirmation battles are now so ugly is that nonoriginalists don’t want nonoriginalism practiced against them. I don’t blame them. The only solution to the downward spiral is a commitment to the enacted text — all of it, not just the parts we like.

        • Andrew Coan – 4 Promoted Comments

          I do think the text matters, principally as a conventionalist focal point and a framework for common-law constitutionalism but also as a vehicle for constitutional politics and one element of a pluralist practice of constitutional interpretation. None of these functions, however, requires an originalist interpretive approach. Nor is nonoriginalism inconsistent with commitment to “this Constitution.” Randy’s argument to the contrary depends on the equation of the document with its original meaning. But of course, that is exactly the question in issue. Even if Randy were right about this, many of us would be inclined to choose our current constitutional practice over commitment to a Constitution defined by its original meaning. Randy would obviously choose differently, but that is because he has a more favorable assessment of original meanings and is more pessimistic about the reliability of other constraints on official decision-making. Those are not issues we can hope to resolve here. But it is good to be clear about the springs of our disagreement.

  • Lawrence Solum – 4 Promoted Comments

    I am struck by the frequency with which burden-shifting arguments are employed in debates about originalism. The exchange between Andrew Coan and Randy Barnett is a case in point. Barnett argues that the function of a constitution to limit the power of officials, including judges and that giving the original public meaning of the constitutional text constraining force is a mechanism for fulfilling that function. Coan argues that nonoriginalist practice is “a perfectly viable alternative” that “may or may not be superior.” It strikes me that this can of burden-shifting can continue indefinitely. To move the debate forward, advocates on both sides must be willing to take a position on the ultimate question and present arguments that establish the position.

    On another point, I wonder of Coan can explain what he means by “interpretation is constrained by the text but not original meaning.” What is the nonoriginal but constraining meaning of the text.

    I’ve offered a fairly complete argument for originalism in my work, including “Semantic Originalism,” but I’m not sure that its arguments can meaningfully be repeated in blog comments.

    • Andrew Coan – 4 Promoted Comments

      Perhaps I was unclear. My point was not that originalism is subject to any special burden of persuasion. It was that Randy’s original post obscures the comparative nature of the question. Officials defining their own power sounds bad. But in treating this consideration as decisive, he ignores the possibility that originalism could be worse. Whether it actually would be worse is too complicated to get into here. To be honest, I am not entirely confident in the answer. But I am quite confident that this is the right question. I think Randy’s second post acknowledges this.

      As for Lawrence Solum’s question, how does the constitutional text constrain if interpreters are not bound to its original meaning? I think the answer is fairly straightforward. Social, legal, and linguistic conventions prevent the text from being plausibly interpreted to mean just any thing at all. Some provisions, like the age limits and two-senator language of Article I, Section 3, clearly have only one plausible meaning. Others admit to a range of interpretations but narrow the range of plausible disagreement in important ways. The Sixth Amendment right of the accused “to have the Assistance of Counsel for his defence” may or may not require the government to provide defense counsel for indigents. But it plainly does not include the right to a court-appointed lawyer to draft a will or assist in the sale of a home. Even the most open-ended provisions of the constitutional text, like the Privileges or Immunities and Equal Protection Clauses, impose some limits. Neither, for example, could plausibly be interpreted to mandate a unicameral national legislature, a parliamentary system, or direct election of the Secretary of State.

  • Geoffrey Stone – 2 Promoted Comments

    If so-called originalism isn’t the answer, what approach should guide the Court’s constitutional decision-making?

    The best solution, grounded in the vision of the Framers across the centuries, has a long and honorable tradition in American constitutional law. It has two essential elements. First, is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against arbitrariness or unreasonableness, the starting point must be a presumption of judicial restraint. This is an essential tenet of any theory of principled constitutionalism.

    Second, respect for the Framers requires us to recognize that although they thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.

    Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis.

    In such circumstances, it is necessary and proper for courts—Madison’s “independent tribunals of justice”—to exercise a “more exacting judicial scrutiny” to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.

  • John McGinnis and Mike Rappaport – 1 Promoted Comment

    We have developed a theory of originalism called original methods originalism. Original methods originalism posits that the correct interpretation of the Constitution is that which would be reached by applying the methods of interpretation deemed applicable by its enactors. Original methods originalism has strong support from both a positive and normative perspective.

    As a positive matter, original methods originalism provides the most accurate method for determining the meaning that people at the time of enactment would have attributed to the Constitution. The Constitution itself declares that it is law, and in the Framing period law was understood to be interpreted according to distinctive legal methods. We have argued that the legal methods employed then focused on the plain meaning of the text but supplemented that inquiry by considering structure, purpose, and canons of interpretation to resolve ambiguity and vagueness.

    Normatively as well, original method originalism is attractive. Our theory argues that originalist interpretations are likely to have better results than those of living constitutionalism. In particular, the beneficence of our Constitution derives from the consensus support it gained among the enactors under relatively stringent supermajority rules. In considering whether to support the constitution, the enactors would have voted for or against the constitution based on the meaning they attributed to it, as determined by the contemporaneous interpretive rules. Thus, the meaning of the constitution that a supermajority of enactors approved as beneficial would be based on the methods that the enactors expected to apply.

    The recent case of Heller v. District of Columbia, perhaps the most important originalist opinion in several generations, provides the best contemporary illustration of
    original methods originalism at work. Heller, of course, interpreted the Second Amendment, which provides: “A well regulated Militia, being necessary to the security
    of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The Amendment contains both a prefatory clause and an operative clause, the combination of
    which could easily be a source of confusion. But the majority held that the law at the time of the Constitution’s enactment had an accepted interpretive canon that clarified the matter. The canon held that a prefatory clause could clarify an ambiguity, but could not otherwise limit or expand the operative clause. Therefore the majority held that operative clause – the right of the people to keep and bear arms – was unambiguous and therefore could not be limited by the militia preamble.

    Our point here is not to defend the details of the majority’s claims, but only its general approach to constitutional interpretation. The majority looked to original interpretive methods to resolve ambiguity. If this approach became common practice at the Court, our constitutional law would look outwards toward objective evidence of meaning rather than inward to the Justices’ own preferences. Our fundamental law would both become more rule-like and generally reach better substantive results.

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