Thickening Originalism

The most important recent development in originalism has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law. This recognition has led to at least four different ways in which originalism has been thickened.

First, whole clauses in the Constitution are not comprehensible without understanding a complex body of preexisting domestic law, including rules of interpretation, of which most modern readers would be oblivious. A fine example of the importance of this approach is the article Preemption by Caleb Nelson. Here Nelson shows that the phrase “anything in the law notwithstanding” which appears at the end of the Supremacy Clause in Article VI, is not just verbal filler but a familiar kind of legal signal called “non-obstante” clause. It was added to the Constitution to block a rule of interpretation that required courts to harmonize prior statutes with subsequent statutes even if on their face there was an appearance in conflict. This discovery has real bite: it indicates that there is no general presumption against preemption.

Second, it is not only domestic rules that form the background for fixing constitutional meaning. In The Law of Nations as Constitutional Law, Anthony Bellia and Brad Clark suggest that provisions, like the President’s power to send and receive ambassadors, and the Congress’s authority to declare war, can be understood only by reference to background principles of the law of nations. This article too has much contemporary relevance since it justifies application of the settled principles of the law of nations to override state law to protect such Article I and Article II powers of the federal government.

Two other examples of thickening originalism may even have more far reaching consequences because they are not focused on specific clauses, but are of general application. In his article Constitutional Backdrops Stephen Sachs has persuasively argued that there is category of rules that are not actually in the Constitution but preexist the Constitution and are left unaltered by its adoption. He calls these rules constitutional backdrops and argues that they may have binding effects even after the adoption of the Constitution. Sachs provides a variety of examples of constitutional backdrops–rules about defining the borders of states, the contempt power, and the rule against legislative entrenchment. While these rules are not themselves part of the Constitution, Sachs argues that they can be changed only by procedures that the Constitution permits.

Finally, in our recent book, Originalism and the Good Constitution, Michael Rappaport and I have argued that the original methods of interpreting the Constitution help constitute the meaning of the Constitution, no less than the do the rules of grammar. The Constitution declares itself to be law and thus to understand what a fully informed observer would consider its meaning to be, one must look beyond word meanings to the interpretive rules that were customarily applied to such a document. Writing independently of our views, Akhil Amar provides some interesting examples of this interpretative approach in the first chapter of his book, The Unwritten Constitution. More generally, this view opens up a research agenda to discover what those methods were.

In my next post, I will consider some the implications of this development for constitutional theory and consider why it is occurring now.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Comments

  1. says

    Professor McGinnis, John, your revelations are very interesting,
    “The most important recent development in originalism “… has been the recognition that the Constitution was not created ex nihilo but against a pervasive legal background. As result, its interpretative context is profoundly infused by law.” (ex nihiloEx nihilo is a Latin phrase meaning “out of nothing”. It often appears in conjunction with the concept of creation, as in creation ex nihilo, meaning “creation out of …)
    “First, whole clauses in the Constitution are not comprehensible without understanding a complex body of preexisting domestic law, including rules of interpretation, of which most modern readers would be oblivious. “ Are we questioning the reader’s understanding of what you’re implying her, John?
    “A fine example of the importance of this approach is the article Preemption by Caleb Nelson. Here Nelson shows that the phrase “anything in the law notwithstanding” which appears at the end of the Supremacy Clause in Article VI, is not just verbal filler but a familiar kind of legal signal called “non-obstante” clause. It was added to the Constitution to block a rule of interpretation that required courts to harmonize prior statutes with subsequent statutes even if on their face there was an appearance in conflict. This discovery has real bite: it indicates that there is no general presumption against preemption.” (non-obstante Latin.: notwithstanding . Origin: short for Anglo-Latin, in contrārium any statute to the contrary notwithstanding Dictionary (s/b “…any Thing in the Constitution or Laws of any State…” A much different recognition where the State and the people is “withstanding”, John.)
    “…This discovery has real bite: it indicates that there is no general presumption against preemption.(\ (Preemption or pre-emption may refer to: Legal . Federal preemption, displacement of U.S. state law by U.S. Federal law “Preemption” is also sometimes used …”_) Professor McGinnis, please identify “This discovery” explicitly – when, where, and by whom — thank you?
    “…since it justifies application of the settled principles of the law of nations to override state law…” Well now, John, you are now taking me, and my fellow readers, into a journey of Constitutional interpretation – to be honest – beyond what Article V1, the Supremacy Clause – enumerates!
    Your fourth paragraph (essay) is nothing more than a generality statement that has no meaning to the Constitution – unless it is amended. What is your motive for taking us there? You certainly appear to be moving away from any concept of your and Michael’s “original meaning”?
    Your following paragraph, “… (O)ne must look beyond word meanings to the interpretive rules that were customarily applied to such a document. Would you please explain in detail “…beyond word meanings” — of the First Amendment’s Religious Clause – that is ‘prohibited law making by the federal government?
    Looking forward to your additional future post(s).
    Respectfully, John

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>