It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters. I am not so sure. To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism. Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution. And that meaning is no more likely to be that of the ratifiers than the drafters. But some people favor the original intent approach. Yet, even under this approach,…
I am late to the party discussing whether the Constitution is best understand through the prism of “popular” or “elite” meanings. There have already been fine contributions by Ilya Somin, Timothy Sandefur, Mike Ramsey and Mike Rappaport.
As Mike Rappaport has noted, he and I believe the Constitution is a legal document and thus legal rules will tell us how to determine meaning, including what degree we should look to evidence from popular as opposed to more technical meanings. I just wanted to add that there is substantial evidence from the Constitution itself that is was to be interpreted with legal rules. In that sense, it often cannot be understood without an elite sensibility, assuming we understand lawyers to be elites.
As we note in our article, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction:
The Constitution defines itself as the “supreme Law of the Land.” The fact that the Constitution was a legal document was not simply left to implication by the enactors but was set forth explicitly in the Constitution itself.
There are also specific indications in the text of the Constitution that the document would be interpreted according to legal rules. We provide some examples in our article. I want to add one more.
Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge. I may have more to say about this next week, but for now I want to note a significant issue.
Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment. Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document. These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.
I still remember the thrill of reading Justice George Sutherland’s dissent in Home Building Loan Association v. Blaisdell. In that case the majority of the Court allowed Minnesota to extend the time that homeowners could protect their mortgages from foreclosure even against the terms of their contract. The decision flew in the face of the text of the Contract Clause, which provides that “No State shall impair the obligation of contracts. “ The Court’s reasoning was essentially that the emergency of the Depression justified the abrogation. Justice Sutherland wrote a devastating dissent, showing not only did the constitutional text prohibit Minnesota’s action but that the Framers foresaw the need to protect creditors precisely in times of emergency. In a course where almost all my fellow students celebrated the Warren Court, Justice Sutherland was my hero.
With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.
Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).
John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation. See here and here. It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.
In the essay, we write:
Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics. It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented. It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles. Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.
These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution. And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.
Some of the current discontents of originalism may be an inevitable consequence of its success. Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies. The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists, originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly incompatible premises.
Over the weekend, I met with group of mostly young academics to talk about some of the internal debates within originalism. What I heard would have cheered Steve Smith.
I have written various posts about originalism and positivism. Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles. It is not a mistake I will make again. I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably. In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism). He explores how various theories would address the…
Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum. But is Griswold in…
In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote: To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues,…