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Sunday, September 06, 2009

How I Cured Rick Hills of Original Intentions Originalism

Rick Hills’ recent post honored my work as providing an example of originalism “in its best light” and providing an acid test regarding the originalism as a workable theory of constitutional interpretation.  Given the outstanding nature of Rick’s own work, I’d hate to be the one responsible for his concluding that originalism is a “dead end.”  Thankfully, it appears that Rick has actually rejected a form of originalism which has been abandoned by contemporary originalists themselves—original intentions originalism.  If I have convinced Rick that that form of originalism is a dead end, so much the better.


Originalism as described and defended in the 1980s sought to determine the original intentions of the framers of the Constitution.  Edwin Meese and others defended this approach as a means of limiting judicial discretion.  This is what Rick means by “the original judge-constraining purpose of the theory.”  The search for original intentions, however, was abandoned in the face of withering criticism regarding the impossibility of identifying and aggregating the private intentions and motivations of the framers.  For example, as multiple sociological historical works have pointed out, there were myriad views at the time of the Founding regarding the dangers of the national government –fears which often (though not always) tracked the so called country-court populations and interests.  Trying to make the text reflect any or all of these multiple “intents” is simply impossible.


But original meaning originalism does not claim that the “meaning” of the text can be found in the private intentions of the framers, much less their personal expectations regarding how the text would be applied to particular contemporary disputes (like chartering a national bank, etc).  This would indeed be a sociological—and not a semantic—historical enterprise.  Original meaning originalism claims that the meaning of the constitution “is fixed by the original public meaning of the text—the conventional semantic meaning of the words and phrases in context.” (Solum).  This is a semantic enterprise, for it looks for patterns of common usage of words and phrases.  Historical motivations and expected applications can play a role in determining common understanding of words and phrases, but they are not the central concern of the approach. 


More after the break:


Rick indicates that modern judges, even if they were able to recover original meaning, would never apply the original intentions or follow the original expected application of the text.  This is, of course, an overstatement.  There is no difficulty applying the original understanding of a variety of texts in the Constitution, including provisions that use terms that have changed meaning over time, like the power to protect against “domestic violence.”  Rick must mean that sometimes the original meaning is so divergent from contemporary constitutional practice that one cannot possibly expect contemporary judges to apply the original understanding.  This is an important point—even if one can recover the original meaning of a text, there may be good reason not to apply that meaning to a contemporary dispute.  This might include normative reasons of justice, or rule of law values (including stare decisis), or anyone of a number of normative theories.  But these theories do not change the original meaning of the text.  This is why original meaning originalists distinguish the recovery of original meaning from the actual application of such meaning to contemporary disputes—this last step requires a normative theory.  My personal view is that the political theory of popular sovereignty provides normative justification for contemporary application in most situations, but even if I am incorrect about this, this does not change the fact of original meaning.


Finally, as should be clear by now, original meaning originalism is not wedded to earlier theories which used history as a tool for limiting judicial discretion.  It is possible, after all, to conceive of a text which was originally understood as providing for (or greatly expanding) judicial discretion over any number of issues.  Or not.  It all depends on the original meaning of the text.  It is possible, of course, that the original meaning of a text is lost, or that the text lacked any commonly understood meaning (even at its core).  These situations may require judicial construction, as opposed to judicial interpretation (a concept developed by scholars like Keith Whittington and Randy Barnett).  On the other hand, we may find that original meaning is recoverable to some extent and, to that extent, we can know something of the original meaning of the clause.  This partial knowledge may be—indeed, often is -- enough to resolve contemporary disputes for judges who follow original meaning originalism.


To take a simple example, a judge committed to original meaning originalism would decline to read the Ninth Amendment’s reference to “rights . . . retained by the people” as constraining state government because the phrase “retained by the people” in the context of the proposed Bill of Rights was understood by its drafter and its ratifiers (and everyone else for the next 150 years) as a term binding only the federal government.  This meaning is recoverable through historical investigation of how the words and phrases of the Ninth Amendment were used and understood at the time of their enactment—this is a semantic, not a sociological, endeavor. 


In terms of judicial application, the words of the Ninth Amendment declare that there are additional limitations on federal power beyond those “enumerated” in the Constitution (indeed, there is no other coherent way to understand the text).  Applying the original understanding of these words requires courts to reject any attempt by the national government to claim that the only limitations on the scope of its power are found in the specifically enumerated rights of the Constitution.  Judicial enforcement of the clause thus necessarily requires some kind of limited construction of federal power beyond the specific limitations in Article I section 9, or in the Bill of Rights.  Rick may not like the term “narrow” or “strict” construction, but such a rule seems inevitable, given the necessary implications of the original meaning of the text.


In sum:  Rick is quite right to conclude that the sociological enterprise which constituted original intentions originalism is a dead end.  Nothing in his post, however, calls into question the theory or application of original meaning originalism.

Posted by Kurt Lash on September 6, 2009 at 07:42 PM | Permalink


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Public meanings originalism is useless and pointless. What was the semantic meaning in context of "freedom of the press"? All kinds of texts talked about this phrase, and its constituent words, in thousands of different ways, and in various combinations. There is a word in federal case law for an enterprise that calls for the cross-referencing of thousands of data points in an attempt to pin down the meaning of a text - "puzzle pleading." It's a puzzle because you can put it together a different way every time, and have a contorted meaningless pile of junk 99.9% of the time. At least original intentions originalism provides some guideposts in what was attempted by a provision, just as legislative history does. In fact Madison himself said the constitution should be interpreted as a statute would be in Britain, by looking at intentions of legislator, not consulting dictionaries and all kinds of garbage a la Balkin, Solum, and Lash.

Posted by: Jack Amar | Sep 12, 2009 10:54:16 PM

Ludwig nein, Gottlob ja!

Posted by: Chris | Sep 8, 2009 6:07:14 PM

(Shameless Plug)

Though the article appeared before the fine recent work on original public meaning originalism, readers of this thread might be interested in my attempt to consider the merits of Justice Scalia's originalism through a Wittgensteinian frame.

(I reach similar conclusions as Rick).

Posted by: Daniel S. Goldberg | Sep 8, 2009 1:03:12 PM

As always, Kurt Lash's responses are thoughtful and generous. I do not think, however, that the distinction he invokes, between a focus on original "intentions" (meaning private intentions of individuals) will eliminate the sociological nature of interpretation. To the contrary: It is precisely because the reference of terms is fixed by a community of language users that such reference is inevitably sociological. The collection of people who use terms like "rights," "property," "equality," "republic," "due process," etc, implicitly incorporate a vast array of social context into these terms not as a matter of their private intention but as a part of the unspoken social consensus that fixes the reference of terms. Terms are like stones in an arch: Each is held in place by a lot of surrounding understandings that, if ignored, make the term's position indefinite. (To use an analogy of Wittgenstein's, one would not recognize a smile separate from the rest of the face. Likewise, one cannot imagine any specific reference for "rights ... retained by the people" separate from the Country Party ideology that breathes life into the term).

This means that the public meaning of terms like "rights ... retained by the people" depends on a lot of sociological practices that originalists tend to ignore. As I noted in my earlier post, Lash is absolutely correct that 18th century Country Party types tended to use the term to refer both to collective self-government and individual self-government. But it is impossible for us moderns to understand why an expansive construction of national power would endanger the latter unless we take into account a shared social ideology -- NOT a private intention -- that understood self-government to be threatened by metropolitan financial elites' efforts to secure legally protected monopolies for chartered corporations. The "rights ... retained by the people" were not threatened by just any federal law: Those "rights" were threatened by laws conferring "special" privileges on corporations, including privileged positions to underwrite public debt and deal in public securities.

If these sociological understandings (I repeat, NOT private intentions) are incorporated into the meaning of "rights ... retained by the people," then judges would be bound to reach very strange results that, as I noted earlier, would probably be unacceptable to anyone close enough to the mainstream of American ideology to survive Senate confirmation. (For instance, the federal reserve system, based on twelve privately owned federal reserve banks, would be immediately suspect). But, if one does not incorporate these sociological understandings into the term's meaning, then the term simply becomes meaningless -- too vague to bake any legal bread. What good, after all, does it do to say that Congress' power should be construed "narrowly," if we do not know the purpose that narrow construction is supposed to serve? How do we distinguish between "bad" implied powers and "good" ones?

This is the dilemma of originalism: If it is 'thin,' relying on dictionaries and the like to capture very abstract usage, then it will resolve few interesting legal disputes, but, if it is 'thick' and incorporates the sociological richness of language usage, then it will be politically unacceptable. I hold no brief against Solum et al about the 'real' reference of general terms: Perhaps they are right that terms 'really' refer to the set of objects to that would be picked out by competent language users when that term is ratified by some official process. Putting such normative argument to one side, I argue simply that, for better or worse, true originalism (of the "public meaning" variety, not the "private intention brand) is practically untenable.

Posted by: Rick Hills | Sep 7, 2009 12:35:44 PM

FWIW, I argue here at 1641 n.107 that Berman's dichotomy in Originalism is Bunk between hard (nature-of-interpretation-based) v. soft (contingent-costs-and-benefits-based) arguments for originalism neglects contingent constitutional self-definition as a basis for (a form of) originalism. As for reflective equilibrium, I don't think we've reached it yet if we think we're swearing an Article VI oath but disagree with how the Constitution presents itself there.

Posted by: Chris | Sep 7, 2009 10:10:14 AM

And consider Mitchell N. Berman's draft "Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause" that also challenges originalism. This draft is available via SSRN.

Posted by: Shag from Brookline | Sep 7, 2009 7:56:50 AM

As both a former student of Rick Hills and an editor on the NYU Law Review, I feel obliged to provide a shameless plug for my journal, which published this year a great article on originalism by Mitchell N. Berman entitled "Originalism is Bunk." Look for it at 84 N.Y.U. L. Rev. 1.

Posted by: NYU 3L | Sep 7, 2009 1:42:28 AM

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