The Bases for Originalism

Over the years, three different approaches have been developed for grounding originalism.

1. The first approach involves a normative argument for originalism. Under this approach, one argues that originalism is the normatively best way to interpret the Constitution. There are various versions of this approach. Justice Scalia argues that only originalism leads to clear rules to guide judges and the public. Judge Bork contended that originalism is the only approach compatible with democracy. Keith Whittington maintains that originalism is justified by popular sovereignty.

2. The second approach is an interpretive argument for originalism. Under this approach, one argues that the actual meaning of the document that is the Constitution is the original meaning. To determine the actual meaning, one must give it the meaning it would have had at the time of its enactment. This approach is adopted by both original public meaning advocates, such as Gary Lawson, and original intent defenders, such as Larry Alexander.

My own approach (with John McGinnis) makes both kinds of arguments. We argue originalism is the normatively best way of interpreting a good constitution and there is a strong reason to believe that a constitution enacted pursuant to strict supermajority rules will be a good one. We also argue the actual meaning is best determined through original methods originalism, which interprets the meaning of the Constitution based on the interpretive rules that would have been deemed applicable to the Constitution at the time of its enactment.

3. But there is a third approach to originalism: this involves what the law is today. Under this approach, one would argue that originalism is what the law is today. That is, the most accurate reading of the law today requires originalism.

This approach, I think, is a harder one than the others. After all, one might argue that, of course, originalism is not the law today. The Supreme Court regularly decides cases that do not conform to originalism and it often does so employing interpretive methodologies that are not originalist.

Yet, the matter is a more complicated than that. While the Supreme Court decides cases from a nonoriginalist perspective, the justices have almost never said that they are contravening the original meaning of the Constitution, except where precedent requires (or allows) them to do so.

In the past, I have not really explored this third approach very much for a variety of reasons, including my skepticism about theories of law. But I have become more interested in it lately. And so I plan in the next couple of weeks to do a couple of posts on the issue.

My next post: A Dworkinian argument for originalism.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Comments

  1. gabe says

    Mike:

    Am looking forward to this. I suspect, however, that you have set yourself a mighty task – something akin to defending the young lad whose hand is observed in the now half-empty cookie jar claiming that he was only sampling the goods to verify that they were original chocolate chip cookies. Good luck!

    On a more serious note, I wonder if in your discussion you would provide some insight into the role of precedent – and how it may both propel or deflect us away from originalist interpretation. My continuing education may benefit from this (I am being serious here).

    thx
    gabe

  2. Kevin R. Hardwick says

    Mike–

    Setting out basic defintions is a very useful thing to do, especially for those of us who, like me, inhabit the fringes of this conversation.

    Some of your terms, however, do not fully make sense to me. I mean this innocently–I am honestly not sure just what distinctions you are conveying with them. You write above, for example, that the “actual meaning” is the “original meaning.” Actual, as I understand it, means an existing fact, as contrasted with a belief. In other words, something is actual if it exists apart from the mind of someone who perceives it. It is an ontological fact. But I have difficulty imagining how “meaning” can exist apart from the mind of a person or persons apprehending it. Presumably you use the term “actual” to distinguish from other categories of meaning, but I am not quite sure what those other categories would be, since it seems to me that an “actual” ontologically stable meaning is an empty category. It seems to me, in other words, that all possible understandings of “meaning” must exist in the minds of human beings, and as such are not actual. Where am I going wrong?

    It seems to me that any discussion of meaning, or of intent, requires proper attention to just who is apprehending the meaning, and just who is defining and expressing the intent. For us to argue that proper and legitimate meaning today is defined by the meaning understood in the past, in other words, reqquires us to define just which people in the past apprehended the meaning that we are arguing is proper and legitimate. Meaning exists in the minds of people–so we must specify which people we are talking about.

    Here, one problem we encounter is that the meaning that James Madison argued counts–the meaning of the ratifiers–was promulgated in a political setting. Unlike the Philadelphia Convention, where political differences could, at least to some extent, be subordinated to political philosophy, the Ratifying Conventions were very public, and very political. And in a political setting, groups of people who in fact hold discordant understandings and meaning may well make common cause. In doing so, it is to their advantage to minimize or make ambiguous those points on which they disagree. This, it seems to me, is precisely what happened in the ratifying conventions.

    I would argue that this is true both at the level of state decision making, but also within the conventions as well. That is, I would argue that the majority who ratified the Constitution in Pennsylvania (for example) understood the document somewhat differently than did the majority who ratified in Virginia. And likewise, I would argue that within the Virginia convention, the majority that ratified the Constitution consisted of a coalition of somewhat divergent opinions as to just what the Constitution meant, who minimized their differences in order to ratify a document that they took to be flawed, but also the best that they could get.

    So if the ratifiers lacked a common understanding of the meaning of the Constitution, what stable, unified meaning is there left for us to recover?

    All best wishes, and much looking forward to a better understanding of where my thinking is flawed,

    Kevin

    • John Ashman says

      Kevin, I would simply suggest that the Constitution has a specific, distinct meaning that is immutable. The lack of understanding of individuals I view to to be a personal issue. Obviously it would be easier to ask those who wrote it, but with suffient work, it’s fairly easy to discern what was meant, based on the society at that time. I would also suggest as I did prior, that any interpretation that allows for greater government power is automatically suspect, while an interpretation that provides the most freedom and most respects the power of the States and the rights of the people is least suspect.

      For instance, in the Commerce Clause, the word “regulation” actually didn’t pertain to the direct regulation of commerce in order to control it for the good of the people but to the regulation of state law so that commerce may be as free and unimpeded as possible between the states. It was there only in the event of a “trigger” such as a dispute among the states, or for a Congress, with popular support, to come to accords on how best to achieve unimpeded interstate commerce. And yet, we’re so beyond this simple meaning that the Commerce Clause not only directly dictates interstate commerce, but all aspects of business occuring anywhere. Yet, if you look at the history of the Commerce Clause, it was probably the least used part of the Constitution for the first 100 years of the country. Now it is the most used and by far most abused.

      One of the critical ways of viewing the Constitution which I think is entirely valid is this – “Would the signers, thinking this interpretation of the Constitution to be true, have signed it”. Very often, the answers is ‘no, of course not’.

      James Madison entirely ridiculed Patrick Henry and those of his belief that people might actually see “provide for the general welfare” to mean “anything the government wishes to do”. And yet, who correctly predicted the future?

      • Kevin R. Hardwick says

        I was thinking of differences in meaning as understood by people like James Madison, Edmund Pendleton, Edmund Randolph, Alexander Hamilton, and James Wilson–all of whom supported ratification. It is easy to see the differences in the thought of Madison and Henry. The differences between the various statesmen who advocated ratification are more subtle–in part because it was strongly in their interest at the time to minimize them.

        For the Virginians on that list, see the scholarship of historian (and lawyer) Kevin Gutzman, who I think better than anyone else yet analyzes the politics of the Virginia Ratifying Convention.

        • John Ashman says

          I think the largest difference, perhaps, as illustrated by Alexander Hamilton, is that I believe there was little difference in what they knew the Constitution to mean, but large differences in what they WANTED it to mean. Hamilton certainly wasn’t fond of the document as written, but understood it and supported it anyway, as he wanted a big powerful country. But he also didn’t want the document to stand in the way of an even bigger, more powerful country. IOW, they seemed to understand the words, but in a typical narcissistic manner, words don’t apply to well-meaning politicians. They all seem rather content with the meaning, until they have a bright idea for making the country “better” and, oops, power NOT delegated. IOW, they didn’t quite realize that it might get in the way of THEIR “great society” law. I believe it was those who didn’t understand it that wanted nothing to do with it, just as it is today. But also as today, I’m sure there were people who signed it because that’s what they were supposed to do, without understanding all ramifications and nuance.

          Still, the only people that seem to misundertand the Constitution seem to be those that want bigger, more powerful government. I find it rather simple and easy to understand and suspect those in that day, with the better understanding of the grammar and word meanings, would have had little problem as well.

          In the end, you can see during the debates that it was distinctly a compromise between sometimes opposing views, certainly varying views, so of course, people will revise the understanding to match their beliefs, as in any “he said, she said” scenario.

          So I am more of the belief that they perfectly well knew what the document said, it’s just they all had a varying degree of agreement with what it said, as is human nature, and the fundamental flaw with all government.

  3. Kevin R. Hardwick says

    Hmm. A brief followup. I advance two distinct arguments, above.

    The first pertains to terminology. Here, I am not arguing for relativism. What I am doing, however, is to suggest by definition (as I understand it anyway) that things that are “actual” exist apart from the human mind. And I understand things that pertain to meaning to exist entirely within the mind. “Meaning” and “actual,” in other words, strike me as belonging to different categories.

    I emphatically do not wish to be understood to be arguing that there is no such thing as truth, for example. I do think that some beliefs can be true. But I do not think that any beliefs can exist apart from the mind of the person doing the believing.

    • gabe says

      Kevin:

      Perhaps if we substituted “intended meaning”, we could arrive at the “intended application” or limits thereof which I suspect John may be asking for. I know that I am.

      take care
      gabe

      • John Ashman says

        That’s a good way of putting it Gabe. The intended meaning is often lost or misinterpreted by people. But we are much safer as a people and as a country if the Judicial vigilently espouses a delineation of “that which is not clear falls clearly to the people or the states and only that which is clear and delegated may fall to the federal government”.

        How shameful that a law is declared “constitutional” by 5 people over the strenuous objection of 4. Any truly Constitutional law would be affirmed 9-0. So we have become a legal frog in a pot of legally hotter and hotter water.

    • Karl Schulmeisteres says

      I am not persuaded by your claims of all the ratifiers understanding the meaning. The Nullification crisis is but one example of that, but the Marbury case is as well. I would even point to the very existence of the Federalist essays as indicating that many of those reading the text at the time had very different interpretations of what the meanings of the words and structures were.

      Furthermore your claim of “actual meaning” begs a larger question. “WHO’S READING”? I think its fair to say that the meaning ascribe to it by say the government of the United Kingdom is not germane. But what about the members of the legislatures that ratified (or not) the document? Why would their views not count as much as those who sat in one or another of the drafting committees?

      What about those eligible to vote for or against the ratifiers (or the voters of Rhode Island that voted down the ratification)?

      Why would their individual interpretations necessarily be the same or different than one or another of the drafters, and why would theirs count less?

      I do not think that you can even make a persuasive case for the existence of an “actual meaning” much less an ability to extract it from that great hubub of history.

      • Kevin R. Hardwick says

        Karl–

        Was this addressed to me? I don’t recognize the positions I hold in your description. I am not sure of which claims of mine you are referring in the first sentence. Can you clarify?

        Thanks!

        Kevin

        • John Ashman says

          Hi Kevin,

          I, in no way, intended for the inference that word meanings do not change. That they do is obvious. I’m simply stating that, well, we have dictionaries from that time that remove any reasonable doubts for those of us who are content with obeying the Constitution as written. Though, I really see few words in the Constitution that have experienced much drift. “Provide for” is obviously one of those as it is believed to be “give out” rather than “prepare for” or “set aside for”.

          • Kevin R. Hardwick says

            John–

            We are much in agreement. If Karl’s point is that, in order to derive a plausible contemporary meaning of an historical document, we must be attentive to the meaning of the words use, as they were used at the time, then it sounds like we both can agree with him. If his point is that this is hard to do, and it is easy for us to make mistakes in the present in our efforts to understand a document written in the past, I am again in agreement with him. I suspect you would be willing to go along with that too.

            Where, I think anyway, you and I part ways with Karl is in our respective assessments of whether or not the endeavor is *possible*.

            All best wishes, as ever,
            Kevin

        • John Ashman says

          Also, keep in mind that the Oxford dictionary comes from Britain, and started later than Webster’s. Webster’s dictionary is an excellent source for the English meanings that would be most likely used by the Framers, because of the temporal and geographical nexus.

          I honestly haven’t seen “nice” in the Constitution, but in any case, in the US, the meaning appears to be virtually unchanged over 200 years, so it’s a poor example.

          Now if the Constitution had stated we have the right to pursue gayness, I’m sure many people would insist that we should be forced to go to same sex bath houses or be fine…..taxed.

          • Kevin R. Hardwick says

            John–

            The good folk at the OED try to track the meaning of words over time, and they do so for both American and British English. (“British English,” you must admit, looks like a somewhat redundant pair of words!) Historians use it all the time for the purpose of figuring out just what words meant at particular moments in time–I think this is also true of Political Philosophers and for Philosophers, two disciplines that are especially attentive to the meanings of words. I think I am safe in asserting that it is a standard academic reference–perhaps even *the* standard academic reference–for this purpose.

            I don’t think in this instance that it matters whether or not Webster got his dictionary going first, or whether or not Oxford’s endeavor is located physically in, well, Oxford England, rather than one of the several Oxfords in the US.

            If you get the chance, do check it out and see for yourself whether you think it is a useful tool. I have used it routinely, and have found it to be a very cool reference tool. I’d just guess from the way you write that you enjoy noodling around in dictionaries as much as I do :)

            Well wishes,
            Kevin

        • John Ashman says

          Hi Kevin, I think I’m less in agreement than you are with Karl.

          My feeling is that understanding the Constitution is all about desire, as the references are plentiful. I don’t think it was written in a vague or obtuse manner. For instance, Madison used words like “color” in ways we do not, but the meaning of “legitimacy” or “substance” is readily apparent from the context, but can be further determined from the dictionary. But, IMO, the biggest obstacle to understanding is simply desire. No leftist and few conservatives really desire understanding, they desire validation, nothing more.

          And, yes, I mean Noah, not Daniel, I always confuse those two.

          Slainte Mhath!

      • John Ashman says

        Karl, you don’t think words have meaning?

        I’ll give you a few examples of simplicity of meaning in the Constitution.

        1. “Congress shall make no law”. Don’t know why that would be confusing, yet people find it so. Vague meaning, or vague minds?

        2. “shall no be infringed”. Vague meaning, or vague minds?

        3. Commerce Clause. Vague meaning, or vague minds?

        Interpretation means understanding. To understand something, it only requires context, which is readily available.

        • Karl Schulmeisteres says

          Words only have meaning in context. And that context comes from how your brain was “programmed” to perceive them. A great example of this is ‘relative location’ (ie “to the left of”) I turns out that you cannot conceptualize a memory of relative location until the linguistic structure for it has been learned by you.

          Thus the very way you even think about things symbolically is inherently tied to the words you use and vice versa.

          As any bi/multi-lingual will tell you, there are things that they have a great deal of difficulty speaking about in one or the other language because they learned the CONCEPT in one language and thus cannot even really effectively reason about it in any other language and hence have to transslate on the fly and cannot do a good job.

          Same applies to meanings of words like “person” and “cruel” and “proper” within the Constitution. You (nor I nor the late Judge Bork) are not capable of rewiring the neurons in your brain to understand the sense of those words in the context of 1789.

          Other words such as “shall make no law” are not vague.

          But to pretend that the issues of controversy do not revolve around the ambiguous parts is to essentially ignore the case history.

          Commerce Clause – brilliant politicians balancing the very clear need for a more powerful Foederal government against the paranoia of states and knife-edging a linguistic compromise that leaves things open to interpretation “to be settled later by implementation”

          Interpretation means ASSIGNING meaning – and understanding only comes from the assigned meaning.

          And no the context of 1789 is not even slightly available to you.

          • John Ashman says

            No, words have meanings because we agree on the meaning and write that meaning down for all to know. Context can provides the use, not the meaning.

            I’m bi-lingual and your statement about bilingual people falls flat on me. It is simply a matter of translation, but since we all are speaking English here, I’m not sure how this applies.

            I can refer you to the 1828 dictionary for the meanings of the words “persons”, “cruel” and “proper” if you like. You can understand them, or not at your choice, but please do not presume to claim I cannot look back into the past with all the proper references needed available, to understand simple statements of law. Understanding only requires information and an open mind, and only one of those is in short supply.

            I see absolutely nothing open to re-interpretation in the Commerce Clause. It’s exceedingly clear in its language and intent. The only people who seem to have trouble with the meaning are those who don’t like its limitations. I don’t see “to be settled later” anywhere at all in the Constitution.

            Interpretation is hardly a difficult manner when the document was written in English, we speak English, and there is a reference work that ensures us that the meanings are available to us.

            I think you are simply rationalizing your desire to break the Constitution in the way you like, so please, do not apply your intentional inability to everyone else’s abilities.

          • John Ashman says

            Watch how easy this is –

            citizen

            CITIZEN, n.

            1. The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides; the freeman of a city, as distinguished from a foreigner, or one not entitled to its franchises.
            2. A townsman; a man of trade; not a gentleman.
            3. An inhabitant; a dweller in any city, town or place.
            4. In general sense, a native or permanent resident in a city or country; as the citizens of London or Philadelphia; the citizens of the United States.

            ******************
            5. In the United States, a person, native or naturalized, who has the privilege of exercising the elective franchise, or the qualifications which enable him to vote for rulers, and to purchase and hold real estate.
            If the citizens of the United States should not be free and happy, the fault will be entirely their own.

        • Karl Schulmeisteres says

          an example of a word who’s meaning has dramatically changed in the time since the Constitution was ratified is “nice”. Used to mean precise and neat. Now the meaning is completely different. You can intellectually understand what is being meant when you read “nice” in old texts, but you really cannot get into the mindset of what was going on in the author’s head when he wrote it.

          Now its true that “nice” does not appear, but all sorts of words that are important that have dramatically evolved meanings do:

          Cruel, unusual, the press, speach, person, “welfare”, posterity, “citizen” (who’s usage in The Constitution was novel for the time and thus evolved very rapidly), journal, disorderly behaviour, armies (do they include air forces? space commands?) , attainder

          And that’s just Article I

          Now furthermore, if in fact the language of The Constitution is immutable, then we actually need a new amendment for freedom of expression via
          the telegraph
          radio,
          telephone
          television
          Internet
          Semaphore.

          Because there is no way the Founders could have envisioned such. And the thing about heavily ammended documents is that they are incredibly fragile and easily gamed

          Thus the notion that democracy is enhanced by “originalism” is ludicrous on its face

          • Kevin R. Hardwick says

            Karl–

            As an aside to all–the threading on this site is not the best. That makes it hard to tell who is responding to whom.

            Anyway, if I read you correctly, you are asserting the following syllogism:

            1. Words take their meaning from context
            2. The context of the 1780s and 1790s can not be recovered
            3. Therefore the meaning of words written in the 1780s and 1790s cannot be recovered.

            Is this an accurate reading of your argument?

            Thanks . . .

            Kevin

          • John Ashman says

            A word isn’t a “who”, perhaps this is the source of some of your confusion.

            But you say we cannot understand a word’s meaning from the past, even as you explain to me the previous meaning of the word “nice”. I found that a bit ironic. Though I will take Daniel Webster’s description instead –

            nice NICE, a. [G. To eat dainties or sweetmeats]1. Properly, soft; whence, delicate; tender; dainty; sweet or very pleasant to the taste; as a nice bit; nice

            It seems to be the same meaning 200 years later, but maybe it’s my inability to see 200 year old meanings that were unknown 200 years ago.

            I’m sorry, but this is a case to me of you having a vague mind, and try to lay this at the feet of words that are clear to others.

            The 2nd Amendment protects freedom of speech and the written word, because they are natural rights. The reason we apply the same restrictions to all other media is because the intent was not that speech vocalizations or scribbled notes are free, but that the communication of ideas is free. And we do this not because the Constitution implies we have this right, but simply because we do, and government has no power to infringe the rights of people, unless it has been given to them by the people.

            The Constitution doesn’t exist to enhance democracy, but to constrain democracy. Which is the only way of preserving any sense of it at all.

            But I suspect your inclinations run naturally away from democracy and more towards totalitarianism, which has a tendency to wrap itself in democracy.

          • Kevin R. Hardwick says

            John–

            From which edition of [Noah--not to be confused with the famous New England Senator, Daniel] Webster’s dictionary are you quoting? Noah published the first edition of his dictionary in 1806, but as I am sure you know, his dictionary has gone through numerous subsequent revisions and editions between 1806 and the present. He revised the original edition substantially in 1828, to create the American Dictionary of the English Language, and then a third major revision in 1841.

            You are emphatically mistaken if you are arguing that the meaning of words do not change over time. I would be very surprised if you are trying to argue that the English language is eternal and unchanged. The process of historical change of English has been well studied–see the Oxford History of the English Language for one definitive account.

            By far the best easily accessible resource for discovering the meaning of a word at a particular moment in time is the Oxford English Dictionary. Here, Karl’s definition of the word “nice” is well supported. Whatever the 19th century meaning you find in Webster’s dictionary, is is pretty uncontrovertible that in the late 18th century, the word “nice” had the meaning that Karl describes above.

            Karl is completely correct that many of the words of the Constitution had common meanings in the 18th century that are quite different than those common today. I believe he is wrong to imply (as he seems to do) that we cannot recover at least some of that meaning.

            All best wishes,
            Kevin

  4. John Ashman says

    4. Common sense.

    5. Because that’s how the people who wrote it told us to interpret it.

    6. It comes with a handbook that explains anything anyone needs to know.

    7. We wouldn’t have a country had anyone believed a “non-original” understanding of the document, because no one would have signed. it.

    • Karl Schulmeisteres says

      John and Kevin

      Not sure of why I cannot respond to your most recent posts but

      a) cherry picking a particular term like “citizen” doesn’t prove anything. Different words have different levels of ambiguity (cruel for example)

      b) that you can extract the historical usage does not mean you can understand the nuance of it. The english spoken at that time – with distinctions between Thee, Thou and You, is not the same english as of today. And thus you cannot fully conceptualize the thinking behind the words.

      At best you can do is INTERPRET your understanding of those concepts but filtered through a modern framework (hint there’s a reason translators are also called interpreters ).

      But lets look at that Citizen derivation

      Def #1 doesn’t really work for 1789 because with the exception of being able to ascend to the Presidency, there really weren’t any privilege distinctions between “foreigners” and “citizens”. Meanwhile women were very much not entitled to many of those privileges and yet were considered “citizens”.

      Now I can rationalize the legal structure behind this but I literally cannot put out of my thinking the notion that women are perfectly co-equal capable as men. Can you? I doubt it. And that colors your conception of what the word “citizen” means in a way that denies you full access to its “original” meaning.

      Note that #1 and #4 themselves are in conflict (and implicitly #2 is as well unless “gentlemen” were not entitled to privileges) So even within an era of definition you have “interpretation” of what a word means.

      Which takes us to #5. At the time, and for atleast another 30 years since the War of 1812 was fought over this issue, Citizen and Subject were sometimes used interchangeably and sometimes not. Under the contemporary conception of a Tory, you could not eliminate being a Subject simply by becoming a Citizen.

      And yet for many residents of the colonies at the time, Citizen trumped subject (after all they fought a war over this).

      So there is no way for you to reach the kind of congruence you seek.

      Now I don’t know what languages you are bilingual in, but for example from French to English, you don’t “make the kitchen” you “cook”. and you can translate this but in translation you loose the french sense of cooking inherently being an act of creation.

      Similarly from Latvian to English, the common use of future anterior (tomorrow morning I will have gotten a good night’s sleep) changes how you think about times and timelines in a way that cannot be reflected in English except by perhaps the most poetic of language and most of us are not poetic enough to comprehend that.

      Same is true of plurals/singulars from english to japanese – certain concepts of individualism can be explained, but the lack of linguistic structures make translation at best an interpretation.

      Now it is true that the English of 1789 is more similar to the English of today than contemporary Japanese is with contemporary English – but in so many ways, the cultural differences, which is the thing that gives the contextual “true meaning” you are seeking, are much greater:

      Modern Japan has a corporate culture similar to the USA and vice versa
      1789 USA feared and despised corporations in ways that today would be considered “commie”

      Modern Japan recognizes that women are an integral part of daily society with theoretically equal rights, so does the USA though the conception of a “woman’s place” is somewhat different
      1789 USA did not allow women to even own property, and in most states testify in a court of law without special permission from a male relative

      Etc. Etc.

      So there simply
      a) is no “absolute meaning” as the conflicts of definitions you’ve provided for Citizen (as well as the historic conflict between Citizen and Subject) demonstrate – even at that time terms like “citizen” were subject to interpretation

      b) is no way to bring the context of 1789 forward into the present in a way that you can really conceptualize

      And this last is particularly important. Because it is not only important to absorb 1789 “in context” but 1791 (BoR ratification and rejection), 1803 (marbury) , 1812 (citizen vs subject), 1795 (11A), 1804 (12A), 1865 (13A), 1868 (14A)….

      And in each case its recursive since for 1804 you have to include how not only they conceived 12A, but how THEY perceive The Constitution and its successive amendments up to that point.

      This is an exercise in futility since there is no single consistency between all of them. Each is an interpretation of an interpretation of an interpretation. And while at each layer your errors might be small, a 1% error compounded quickly drives your accuracy down.

      It simply is not possible to have a solid conception of what “original meaning” was (nor is there evidence that there ever was such a single meaning).

  5. gabe says

    A TABLETOP THEORY OF CONSTITUTIONAL INTERPRETATION

    Mike, Kevin, John:

    Reading the above post / comments, I am reminded of a blog posting / counter-postings some while back at Public Discourse. A Neo-Darwinist (ND) and an Intelligent Design (ID) proponent (perhaps he was or was not) engaged in a discussion as to whether unaided human perception / reason was a valid means of understanding the world. ND asserted that it is not because, as an example, our senses perceive a table as an object of some solidity when, in fact, it is not. He asserted that it is actually quite porous. Our senses fail to perceive this porosity and, as a consequence thereof, are inherently unreliable. ND briefly outlined the physicists’ view which includes all manner of strange particles, electromagnetic forces, etc. by way of asserting that there is too much that unaided sense cannot grasp. ID did not respond (or I missed it).
    However, I would assert that ND while being factually correct, nevertheless is an epistemological orphan. In his cleverness to win an argument, he was unable to recognize that the senses do in fact recognize the “totality” of the particles and forces and how it comes together to form the table.
    In short, in ND’s effort to (as John as earlier posted) to “see between the spaces in words” (here substitute particles), he misses the very “essence of the thing.”
    It would be no different than criticizing one for admiring Michelangelo’s Pieta because you can not rally see each individual atom of marble.

    Any valid method of interpreting the Constitution should never loose sight of the “essence of the thing.” Like the carpenter who designed and built the table and can inform you as to its intended use, I believe that we do, in fact, have recourse to the design intent of the Constitution. It is the Declaration of Independence. I further believe that we are able to apprehend its meaning via unaided reason without recourse to the interstitial venues of constitutional clauses.

    BTW – those chocolate cookies were quite good! Hurry up and grab some before they completely disappear!

    gabe

  6. says

    One must begin by agreeing on what a “law” is. If it is a command from a sovereign to a subject, that is, from one authorized to make law to one who has the duty to obey it, then the meaning can only be that of the lawgiver, and if the meaning of the subject differs from that, then the subject has failed to understand the lawgiver. Of course, the lawgiver has an obligation to make his commands clear, but the subject has the obligation to try to discern what the lawgiver meant.

    A word or statement has several meanings:
    1. The meaning it had for the writer when he wrote it.
    2. The meaning it had for the reader when he read it.
    3. The meaning the reader thought it had for the writer when he wrote it.
    4. The meaning the writer thought it would have for the reader when he read it.
    5. The meaning the reader thought it should have had for the writer if the writer knew what the reader does.
    6. The meaning the writer thought it should have for the reader if the reader knew what the writer does.
    7. The meaning the reader thought the writer thought it would have for the reader when he read it.
    8. The meaning the writer thought the reader thought it would have for the writer when he wrote it.
    9. The meaning it has for the reader upon further reflection, perhaps years later.
    10. The meaning it has for the writer upon further reflection, perhaps years later.

    And then there are the meanings that third parties think the writer and the reader had at various stages in their evolution.

    Option (1) is authoritative, but as a practical matter we are left to struggle with (3).

    • Kevin R. Hardwick says

      Jon–

      This is a very useful description of the possible ways to construe meaning, all of which require us to designate just who is doing the construing.

      I agree with you that a law is a sovereign command. But we are not talking here of law in the normal sense–we are talking here of the implementation of a Constitution.

      It cannot be the case that the meaning of the Constitution is the one held by the people who wrote it in the Philadelphia Convention of 1787. That is because those people lacked the power to impose commands. They were not sovereign. What transformed the Constitution into something binding was not the meaning intended by the framers, but rather the meaning as construed by those people who *did* have the power to implement it. Before the delegates of the ratifying convention voted to ratify–and before enough of the state conventions so ratified–the constitution lacked any legal force whatsoever. All it was was a proposal–mere words on parchment that were not expressions of sovereign will and lacked any power to command.

      And here, I have been suggesting, it is the case that different groups among the Federalists–among the people who voted to ratify–understood the meaning of the constitution differently. They faced very strong pressures to minimize their differences during the ratification process, when they shared the common political goal of securing ratification. But in the process, they deferred clarifying the points on which they disagreed.

      The most obvious manifestation of this disagreement are the two contrasting interpretations of the necessary and proper clause advocated by Thomas Jefferson (with full support from James Madison) and Alexander Hamilton in 1791. Some scholars misunderstand Jefferson’s position to be the position of anti-federalists like the author of the Brutus essays, who criticized the clause during the ratification struggle. But, as historian/lawyer Kevin Gutzman has demonstrated (correctly, to my reading of the primary sources–I can provide the relevant quotations from the Virginia Convention, if anyone has interest), Jefferson’s understanding was the consensus understanding established by the Federalists in the Virginia Convention. Madison could support it because he took it, correctly, to be the expressed understanding of the people in Virginia who gave the Constitution (now with a capital C) its binding, legal force.

      So here we have a case of two of the authors who comprised Publius reaching a fundamental disagreement about the meaning of the Constitution, once the pressures to minimize their disagreements no longer prevailed.

      All best,
      Kevin

      • John Ashman says

        But remember that Hamilton WANTED a much more authoritarian constitution, so even though he understood the words quite well, his natural tendency is to pull towards authoritarianism any time he had the opportunity. Jefferson, in some ways, felt it was too authoritarian, especially with regard to eminent domain, so he would naturally pull towards more caution and less government power any time he had the chance. Hamilton believe a bank WAS “necessary”, and Jefferson did not. Both understand the word “necessary”, but each has his own natural inclination of how to apply it DEPENDING on the situation and the benefit to his own belief system.

        To sum up, I believe that one can have near universal understanding, but situational desire to apply said understanding based almost entirely on pure self-interest.

        Hamilton was also narcissistic and ambitious. He tried to make the Constitution more British, and when he failed, he knew that he could be on the losing end, or…..ride that train in the right direction, extolling its virtues, and then proceeding with his own grand schemes, denying the Constitution’s power over his own personal agenda. Because that’s how we humans are.

        Real understanding comes when one is willing to say “I love NASA, but it’s unconstitutional” or “I love the idea of a national bank, but it’s unconstitutional”. Few people can do this. They want what they want and rationalize the words and meaning situationally to achieve it. Even when they signed on the dotted line, even when they fully understood the compact.

  7. Kevin R. Hardwick says

    Gabe, John, (Mike, if you are reading this):

    I much prefer “intended meaning” to “actual.” But I also would suggest that the adjective “intended,” if we are not careful, risks occluding information in a similar fashion as does the passive voice construction “it was intended.” What both constructions risk leaving out, if we are not careful, is just who does the intending. Intentions imply intendors. When we talk about “original intendors,” it behooves us to be carefully clear just who they are.

    And that takes us to the second part of my original post. In the first part, I questioned Mike’s choice of terminology–“actual.” But in the second, I extended that comment to talk about one possible way of unpacking the notion of “original intent,” that advocated by James Madison. And I suggested as well that there were a number of problems with deriving a stable and unitary single “meaning” given Madison’s understanding of the term. If my argument is correct, we are better advised to talk about “original meanings,” plural, rather than “original meaning,” singular.

    • gabe says

      Kevin:

      Very good points.
      With respect to “original meanings”, we are still confronted with both apprehending those meanings and then resolving the differences associated with those various holders of those meanings as Mr Roland demonstrates.
      Difficult, to be sure, but as in my Tabletop Theory, I believe that however we attempt to resolve these meanings, there is an ultimate guide. How closely does this “resolved meaning” approximate the central principle of the American Regime?

      • gabe says

        John:
        Good point!
        regrettably, in practice, this is all too true!
        how many can actually say that they support something but that it is unconstitutional and willingly walk away from it.

    • John Ashman says

      BTW, Kevin, I appreciate what you write as it challenges my thinking and expands my knowledge, so please don’t take anything I say as argumentative, as you may have noticed, I’m very clear when I feel quarrelsome ;^)

  8. says

    I enjoyed reading the post. It was informative and brought home that my view is likely considered extreme even by “Originalists”.

    The Constitution should be read verbatim and applied literally in my opinion.

    No other documents should be used to “interpret” or clarify the text excepting a dictionary as published as close to ratification as possible. Why? Because citing the Federalist Papers, for example, places them on the same level as the Constitution. In reality, they were a series of newspaper editorials for want of a better analogy. While historically invaluable, they absolutely cannot be a source document with legal authority.

    My position in a nutshell is that since every word was debated publicly, and in committees, and in legislature; The verbatim ratified text IS the intent.

    This creates some issues. NASA, The Dept of Education, & the United States Airforce are not authorized under my view.

    Thanks again for an interesting read.

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