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Sunday, September 06, 2009

How Kurt Lash cured me of originalism

I am a great admirer of Kurt Lash's work on the Ninth Amendment. His series of articles on the subject has convinced me that, if one focuses on its "original public meaning," the Ninth Amendment is best understood as a federalism-protecting measure -- that is, a rule requiring a narrow construction of Congress’ powers to protect the right of the people to collective self-government through their state governments. Like some other sophisticated originalists -- Caleb Nelson, for instance -- Lash is painstaking and fair-minded about evidence and, best of all, original in his arguments. So Lash's work and his recent post provide me with a sort of acid test of whether I could ever subscribe to originalism, seen in its best light. Precisely because Lash's originalism is so good, my dissatisfaction with his argument is explicable only on the ground that even the so-called New Originalism about "original public meaning" is too arid to constitute a satisfying theory of meaning.

Here is my problem with this whole semantic enterprise of "original public meaning." The inquiry into such meaning requires sociology, not lexicology: Constitutional terms like "the rights ... retained by the people" refer not to some trans-historical nugget of meaning, some referent like the Potomac River to which "the Potomac[k] River referred in 1791 and still refers today. Instead, such terms are ideologically loaded markers referring to what Wittgenstein would call a "form of life" -- a vast array of values, beliefs, and points of salience that have often vanished long ago. Assuming that some judge with the powers of Quentin Skinner actually succeeded in reconstructing this array of beliefs, she would never enforce it, because it would be too unpalatable to the modern society that, in the long run, chooses the judges.

Take, for instance, Lash's effort to reconstruct the meaning of the Ninth Amendment's phrase, "rights ... retained by the people." Lash argues -- correctly, in my view -- that this phrase refers (inter alia) to the people's collective rights of self-government. But why believe that such rights are threatened by Congress’ powers but not state legislatures’ powers? One must answer this question in order for the idea of "narrow construction" to have any content. The answer, however, is rooted in a sociology that no modern judge would ever enforce -- specifically, the Country Party suspicion of the influence that chartered corporations (the South Sea Company, the Bank of the United States, the Society of Useful Manufactures, etc) allegedly wielded in metropolitan venues like London, New York, or Philadelphia. The idea was that a cabal of well-connected financiers tended to gain special monopolistic privileges from the national legislature (especially privileges to underwrite public debt) but not at the state level, where muddy yeoman in small-town state capitals (Albany, Harrisburg, Richmond, etc) held sway.

If one has such a conception of centralization the threat to “liberty,” then it is easy focus on subnational government as the antidote. It is also easy to imagine a judicially manageable doctrine that would implement the sociology: Do not let Congress, for instance, charter banks that are majority-owned by private investors and that enjoy immunity from state taxation. Andrew Jackson, indeed, enforced precisely such a constitutional rule.

But does anyone seriously expect a modern court to enforce such a theory today, when there are only 27 million people (out of roughly 300 million) employed rurally and only 2 million family farms? Does anyone expect federal courts strictly to scrutinize federal laws creating or regulating corporations or the banking sector (the special target of Country Party and, later, Jacksonian, wrath)? Of course not. So Lash’s theory of the Ninth Amendment, stripped of its sociological soul, boils down to a vague and non-justiciable requirement that Congress’ powers be “narrowly” construed (whatever that means), without any accompanying account of what such narrow construction is supposed to accomplish.

Could there be a sociologically sensitive originalism? Sure, but it would so enlarge the set of sources that judges would need to consult that the original judge-constraining purpose of the theory would be lost. Instead, one would enter some Larry Lessig-style realm of free-wheeling "translation" of 18th century Country Party norms into 21st century analogues. Country Party priorities in the 18th century, for instance, might translate in the 21st century into an anti-preemption canon of construction, especially if the state law being preempted is regulating a financial corporation. Lash's articles reject such fancy-pants translation and choose choose parsimony of historical sources over sociological depth, consulting only one piece of secondary literature, Saul Cornell's excellent book on the Anti-Federalists).

In short, originalists need to choose between their institutional and interpretative priorities: Constrain judges? Or accurately capture the sociological underpinnings of language? The two goals do not mix, which makes the theory, even when as well-executed as it is in Lash's hands, a dead end for me.

Posted by Rick Hills on September 6, 2009 at 01:16 PM in Constitutional thoughts | Permalink


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Indeed. It doesn't matter very much that the constitution is written. The UK constitution is mostly written, too. The only benefit of having one central document, if that is what the US have (a question of itself, given the mountains of case law that have been superimposed over the two-page bill of rights), is that it makes it easier for the governed to know what it is they're being asked to consent to.

As for the other question, ex hypothesi all of the current constitution has the consent of the governed, because if any phrase did not have such consent, the governed would change it.

Posted by: Martin Holterman | Sep 7, 2009 4:37:45 PM

I'm a form of originalist myself, but I don't think the written-Constitution point all by itself does a lot. For instance, we also have a written common law--the law of torts, for instance, consists in lots of written opinions delivered by judges over lots of generations. Even if these are subject to being overruled by later judges, it's still helpful to have them written down. Similarly, even if the Constitution is just a bunch of common-law concepts that judges can play with later, or a collection of Gallie-style essentially-contested concepts that we have to hash out philosophically over time, or even just a bunch of non-binding advice from the Founders, it's nice to have those concepts or advice written down.

Figuring out what words would express if spoken today might be hard, but I imagine Meikelejohn would say it's no harder than figuring out what they expressed in 1787 or 1867. I think he'd probably infer consent from acquiescence, even if provisions might poll poorly.

Sticking with the original meaning does seem more stable, but the non-originalist would presumably say that other values, like avoiding the dead hand, are more important. (Again, for my money, I think the clearly predominant value is fidelity to the Article VI oath, and that gives us a form of originalism.)

Posted by: Chris | Sep 7, 2009 3:55:45 PM

In response to Martin and Chris' excellent comments to my question, I have the following. If a written document's meaning changes as long as "The People" continue to abide by it (thus continually adopting it), then why do we have a written constitution in the first place? England has had a lovely unwritten constitution that preserved individual freedom for centuries (and arguably continues to today). Its "meaning" changed as new tradition built on old tradition, and as Parliament changed written laws through simple bicameral majorities with Royal consent. It's meaning therefore changed in response to societal and technological change, both semi-spontaneously at the common law level, and purposively at the Parliamentary level.

But that's not what "we" in this country have. We have this _written_ Constitution that is very hard to change. The public meaning of the phrases in the Constitution does change, but, again, through random changes in the meaning of American English, not through a common law response to changing needs. If we are going to follow this "Constitution" at all, instead of going to the English model and just looking to Parliament's pronouncements and the current common law (both of which are, after all, much closer to today's "People" then a 200 year old text) then the Constitution needs to have a "meaning" that doesn't change. Otherwise it's the English system with a lot of hocus pocus. (By the way, I can see why a Strausian would like that, but not if we're being honest about it.)

Further, if you take a step back, how in the gods' names can we ascertain that all of the many phrases, and their original vs. current public meanings, are "consented to" by those currently living? (I've never read Meiklejohn, so forgive me if he explains this.) It may well be that the current public meaning of a constitutional phrase IS at odds with what "The People" want, e.g. jury trial in federal court vs. public mistrust of "runaway" juries or double jeopardy even when defendant found not guilty and then admits to guilt. Should judges then not enforce these phrases because "The People" don't want to enforce them anymore? Or would that only count if "The People" don't want a majority of the Constitution's text? 75% of the text? Ascertaining the original public meaning of the Constitution and simply applying it, sometimes with needed additional construction, seems simple, and much more stable, by comparison.

Posted by: anon | Sep 7, 2009 3:12:02 PM

I don't think that Meiklejohn ever came to grips with the problem Article VII poses for his theory. As for legitimacy, the Constitution only has to be binding today on people who have personally sworn an Article VI oath, so to that extent there's no dead hand problem. But if "this Constitution" in Article VI is properly understood to refer to something historically embedded, then people who swear such oaths aren't at liberty to construe it differently. They can refuse to swear the oath, of course. But if they swear the oath, and if they think they're swearing the actual Article VI oath, then I think they've got to take "this Constitution" on its own terms.

Posted by: Chris | Sep 7, 2009 3:05:33 PM

I should really review my comments before posting...

@Chris: O, clearly using verbs like adopt, ratify, etc. for both the original fixing and ratification of the text and the later continuous reaffirmation would not work. If one were to develop a detailed conceptual model on this basis, as Meiklejohn has apparently done, one would have to develop a vocabulary to deal with this distinction. But the idea that the constitution derives its legitimacy from the consent of the governed, i.e. those currently living, and that this consent can only be based on how those currently alive understand the constitution, seems pretty hard to refute.

Posted by: Martin Holterman | Sep 7, 2009 1:18:45 PM

@Chris: O, clearly using the verbs like adopt, ratify, etc. for both the original fixing and ratification of the text and the later continuous reaffirmation would not work. If one were to develop a detailed conceptual model on this basis, as Meiklejohn has apparently done, one would have to develop a vocabulary to deal with this distinction. But the idea that the constitution accepts its legitimacy from the consent of the governed, i.e. those currently living, and that this consent can only be based on how those currently alive understand the constitution seems pretty hard to refute.

Posted by: Martin Holterman | Sep 7, 2009 1:16:40 PM

As I say, I spend 10 pages responding to Meiklejohn's view (and others). For instance, Article VII doesn't fit with his view of the Preamble, because it says that ratifying conventions perform the Preambulatory act of establishment. "Now existing" in Article I section 9 clause 1 has to refer to the Founding. If Arnold Schwarzenegger can't be President, then "the time of the Adoption of this Constitution" in Art. II section 1 clause 5 can't be today.

Posted by: Chris | Sep 7, 2009 12:57:34 PM

@Chris: That's what I was thinking reading anon's comment. For whatever reason, the American people are extremely reluctant to amend or rewrite their constitution. That is the reason this whole mess has come up in the first place. Almost everywhere else in the world, the constitution is revised often enough that originalism is both a no-brainer and entirely unproblematic.

(For comparison, the Dutch constitution was written in 1814, meaning that it is almost as old as the American one. While the structure has essentially remained the same, there have been major overhauls in 1815, 1840, 1848, 1887, 1917, 1922, 1948, 1953, 1963 and 1983. Wiki. Usually these overhauls were motivated by the desire to change something specific, but in the process they tended to rearrange the articles, update the spelling and choice of words, etc, etc.)

The fact that the American people leave their constitution alone can be explained quite pragmatically that the US constitution is so difficult to amend. But as a matter of legal theory, I'm not sure if that counts. The idea that the constitution obtains its legitimacy from the decision of the people to leave it - as they understand it, and including the current canon of constitutional case law - alone seems a reasonable one.

That means that a seminar for new judges focuses on constitutional case law above everything else.

Posted by: Martin Holterman | Sep 7, 2009 11:51:00 AM

One justification we might have for enforcing the contemporary meaning of constitutional language is Alexander Meiklejohn's theory that the words of the Constitution are re-adopted with each passing moment. People today look at the Constitution and decide to leave it in place--because that's the key action, on Meikejohn's view, the key meaning is what we mean today by the text: "[The Constitution] derives whatever validity, whatever meaning, it has, not from its acceptance by our forefathers one hundred and sixty years ago, but from its acceptance by us, now. . . . What do We, the People of the United States, mean when we provide for the freedom of belief and of the expression of belief?" He says of the Preamble, "In those words it is agreed, and with every passing moment it is reagreed, that the people of the United States shall be self-governed." (See here at 1634 & 1657.) So it's not just random language change alone; it's random language change plus the acceptance of people today that produces constitutional meaning, as Meiklejohn sees it.

Now, I reject Meiklejohn's view, but only because it doesn't fit with the details of how "We the People" and "now" and terms like that are used in the Constitution (see here at 1657-66). But it seems like a coherent explanation for using contemporary meaning.

Posted by: Chris | Sep 6, 2009 5:48:38 PM

Here's a simple take on Originalism that, I feel, cuts through all the pros and cons for the theory. I'd be curious as to Rick's reaction to it (but, again, no obligation to respond): A written document, such as the Constitution of 1787, as amended, was written and adopted because of what it said. That is, it had some meaning in 1787 that people could talk about and have, to a large degree, a meaning that would make it more or less likely that they would want it adopted as law.

Now, say the meaning of a phrase in the document changes over 200 years, just as language is expected to always change. It may be hard to figure out what the "meaning" was in 1787, but it's often different than that 200 years later. "Commerce" is one example, "$20" another. (Of course, other phrases, e.g. "35 years old," haven't changed.) Why would a judge enforce the contemporary meaning of the words instead of the 1787 meaning? The document was not put into law because of the meaning of today. The meaning of today is what the words have, basically randomly, come to mean. So why should a judge enforce this meaning which is only arguably "law" through random changes in language? The judge may like the policy outcome of enforcing today's meaning rather than the 1787 meaning, but that isn't an argument for today's meaning being law, just an argument that the judge disagrees with enforcing the written document, in this case the Constitution.

The response to this usually is that the meaning of today is more relevant to current circumstances, so it should be enforced. That would be true if we were interpreting a statute that had just been passed, or the words in a judicial opinion that had just been handed down. But today's meaning of the Constitution was never adopted as law. It's here through a random change in language. If you don't like enforcing 200 year old meaning that has "outworn" its relevance, fine, just ignore the Constitution, but don't pretend that you are enforcing anything ever adopted as law.

So, instead of trying to seek justification for Originalism, I ask what justification is there for judges enforcing a meaning which only exists through random language change, not because "the people" ever adopted it. If you think the Constitution was never legitimately adopted anyway (women or minorities couldn't vote, etc.), or shouldn't bind people centuries into the future, then just ignore the dang thing, but don't pretend to be "interpreting" and "enforcing" it when all you're doing is enforcing a random change in meaning. I understand it might not be politically useful for a judge to say "this Constitution is too old, I won't interpret it anymore" but it seems the only honest thing a judge can do other than apply Originalism, as legitimately difficult and murky that might be. Perhaps we should not be bound to the dead hand of the past, but we shouldn't be bound to random changes in language that no one wrote into law either.

Posted by: anon | Sep 6, 2009 4:42:32 PM

If you think the Constitution defines itself as a historic textual expression of meaning, these are reasons to give up on the Constitution (or to refuse to take an Article VI oath), not reasons to give up on originalism.

"...the original judge-constraining purpose of the theory..." Not my purpose, and I'd suspect, not Lash's.

Posted by: Chris | Sep 6, 2009 3:48:12 PM

So, Rick, what are your suggestions for how judges should go about the business of implementing the Constitution? Genuinely curious: if there were a Rick Hills-led seminar for new judges, what would be on the reading list as guides re: things to know and to do? Are there any presently sitting jurists (or recently retired) jurists we should look to as rough guides?

Feel free to ignore this request for this post, since it's totally fair for your post to take a critical rather than a prescriptive bent, but in case you have something at the ready, I'd love to hear it.

Posted by: Dan Markel | Sep 6, 2009 2:06:07 PM

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