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Thursday, September 03, 2009
Originalism and the Fourteenth Amendment
Cases like D.C. v. Heller illustrate the importance of historical analysis and argumentation as legal skills for constitutional lawyers. Where Heller focused primarily on the original understanding of the Second Amendment, the anticipated follow-up case to Heller will inevitably focus on the original understanding of the Fourteenth Amendment—particularly the Privileges or Immunities Clause and the issue of whether that Clause incorporated some or all of the first eight amendments. The high-profile nature of second amendment cases like Heller guaranteed renewed interest in—and criticism of—originalism as a method of constitutional interpretation.
Originalism has undergone substantial change since its first gained wide-spread notice in the 1980s. Earlier efforts sought to identify the original intentions of the framers, with the goal often portrayed as an effort to cabin undue judicial discretion. The approach, however, presented intractable problems with trying to identify and aggregate the private intentions of multiple actors, and seemed to unjustifiably privilege the views of men who, by themselves, had no authority to determine the content of constitutional law. Over time, however, scholars developed a more sophisticated and more defensible form of originalist inquiry known as original public meaning originalism. This approach seeks the likely public understanding of the ratifiers—the group who, according to the Founding theory of popular sovereignty, had the authority to alter or amend the nation’s fundamental law. This approach does not investigate mind-states, but looks for the common usage of words and phrases in an effort to identify how a proposed text was likely to be understood at the time of its enactment.
Two distinctions are key to understanding what is sometimes known as the New Originalism. First, the approach assumes that, at some point, historical information “runs out”—some conclusions about public meaning may be possible, but a degree of original understanding of the text may remain hidden or vague. Application of the text to a modern dispute thus may require judicial construction—the creation of legal rules that do not contradict the original understanding, but are nevertheless not identified aspects of the original meaning of the text. This distinction between interpretation (the discovery of original meaning) and construction (filling in the gaps left by an incomplete historical record) suggests another key aspect to contemporary originalism: The distinction between historical discovery and normative theory. Step one of originalism is the discovery of the original meaning (to the extent possible). Step two is the normative decision regarding how (or even whether) to apply that original understanding to a contemporary dispute. One often finds objections to originalism based not on the idea that texts have meaning which is fixed at the time of their enactment, but instead based on various normative considerations of justice, pragmatism, or other normative theories of constitutional enforcement.
In terms of the Fourteenth Amendment. An originalist investigation of the Privileges or Immunities Clause would look for patterns of usage regarding the words and phrases of the Clause, beginning with how those words and phrases were understood in the years leading up to the Civil War. This would inform the likely understanding of those words by the members of the Thirty-Ninth Congress who proposed the text, and the members of the public who ratified the text. My next post will begin this investigation. But readers are reminded that, even if a degree of original understanding is recoverable, there remains the normative issue of whether and how we ought to apply this understanding to contemporary debates.
Posted by Kurt Lash on September 3, 2009 at 09:13 AM | Permalink
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Comments
Kurt,
Ah, I get it: That is totally different from what I thought you were saying. Thanks for the clarification. FWIW, I agree with others that the second step would seem to come first, as the relevance of the first step hinges on the second step.
Posted by: Orin Kerr | Sep 5, 2009 3:40:40 PM
The first step involves the discovery of the original public meaning of a constitutional text. The second step involves the normative assertion that this original meaning ought to inform judicial application of the clause to a contemporary case. One might agree about an asserted original public meaning, but nevertheless reject contemporary application of that meaning on various normative grounds. Put another way, the first step involves historical work, while the second step involves normative theory.
Both steps do important work, but it is the second step that makes originalism "originalism."
Posted by: Kurt Lash | Sep 5, 2009 12:57:03 PM
"In terms of Orin's original comment, the purpose behind the two-step analysis is to distinguish the fact of original meaning from the normative exercise of constitutional application. This is important for clarity's sake, given the many criticisms of originalism which present themselves as methodological criticisms but are in fact normative objections to the application of (otherwise discovered) original meaning."
I appreciate that, but this assumes that the two steps must always occur, and that the goal is merely to say so; My question is what the second step has to do with originalism, or how much work originalism has to do in this two-step approach.
Posted by: Orin Kerr | Sep 5, 2009 12:12:11 PM
In terms of Orin's original comment, the purpose behind the two-step analysis is to distinguish the fact of original meaning from the normative exercise of constitutional application. This is important for clarity's sake, given the many criticisms of originalism which present themselves as methodological criticisms but are in fact normative objections to the application of (otherwise discovered) original meaning.
As far as triviality is concerned--actually this is not my particular concern. I think getting the original understanding correct is valuable in its own right. It takes a normative theory to make it relevant for contemporary judicial application. Assuming that one embraces such a theory (as I do), then as Chris points out, the "thickness" of originalism very much depends on the degree to which original understanding resolves the case at hand, or leaves a degree of vagueness to be worked out through construction.
Whether this opens the door to judicial adventurism is a question of good faith application of the method and the degree of discoverable original understanding. I certainly agree that Professor Solum has the best response to the claim of triviality and I encourage anyone interested in the subject to consult his monumental work "Semantic Originalism" posted on SSRN
Posted by: Kurt Lash | Sep 3, 2009 7:45:48 PM
I am hopeful that Professor Lash will respond to Raoul's points. In his piece, "A Reader's Guide to Semantic Originalism," Professor Larry Solum responds to the objection from triviality (I take it that his Semantic Originalism is a variety of new originalism) -- i.e., that the new originalism lacks bite and leaves what people fight about unresolved. Professor Solum seems to concede the point that Raoul makes to an extent, but at the same time I think that Raoul is overplaying the degree to which almost all constitutional theorists could sign on to Semantic Originalism (and so to new originalist constitutional theory generally). I wonder whether Professor Lash would agree with Professor Solum's response to the objection from triviality. Here is Professor Solum on triviality:
"It is true that Semantic Originalism, by adopting the interpretation-construction distinction, relocates many of the most interesting and
important questions to the construction zone—the area in which constitutional vagueness is resolved. Nonetheless, the theory offered by Semantic Originalism is nontrivial for several reasons, including the following:
• The hard-wired constitution determines the basic structure of government, and this is normatively contested. Sandy Levinson and others have argued that the structural provisions including equal suffrage of the States in the Senate and
the Electoral College are normatively problematic.
• Semantic Originalism suggests that constitutional methodology should be
revised to emphasize the role of the text, and this may have significant
implications for some areas of constitutional doctrine.
• The main purpose of Semantic Originalism is to offer a true or correct
constitutional theory: accomplishing this task is nontrivial by the standards that are appropriate to constitutional theorizing."
Posted by: Marc DeGirolami | Sep 3, 2009 5:32:10 PM
"But it also means that the historical work, in most cases, isn't doing that much of the work, and that non-historical, normative constitutional theorizing is often (depending on the case) doing a lot of the work."
It all depends how much history you come up with, though, doesn't it? I think history sometimes delivers pretty decisive answers (e.g., here and here).
"After all, how should we define the *subject* of an originalist's historical research: should it be focused on the relevant *clause* at issue, or should it be pitched more broadly, at the structure and more general work the clause is embedded in? Should we, to give an example, look at the P/I clause's meaning in 1868, or at the Reconstruction Amendments' purposes as publicly understood more generally?"
I don't think any New Originalist worthy of the name would think that ultimate purposes or goals are the key. It's historic textually-expressed meaning that counts (at least, it is for me, since that's what I think "this Constitution" is).
Posted by: Chris | Sep 3, 2009 5:18:11 PM
Thanks, Kurt, for your very interesting and lucid post. It leaves me wondering, in the end, how much purchase the New Originalism really has. Let me start with the Old Originalism, then move to the New, raising two wrinkles I see in it.
Under old-fashioned originalism, the framers' intent governed, and that was the end of the story. If the framers did not speak to the question contemporary judges were called upon to ask, the judges had nothing to draw on and had to affirm the validity of the legislation in question. Thus originalism was at the end of the day of a piece with judicial restraint; it served to bolster one understanding/version of the New Deal Settlement. (I once asked A.G. Ed Meese, at a Q&A with students, how he could embrace original intent and judicial restrait at the same time, and he answered by saying they were really the same thing.)
By contrast, under the new originalism, the public meaning at the time of the relevant clause's enactment governs. When meaning runs out -- and you guys agree that meaning will run out eventually -- you turn to "construction." With this move, you have severed the tie between originalism and judicial restraint. You permit what Old Time Originalists did not -- judges to do some non-historical work (you just name it construction instead of interpretation). New originalism, then, is less a constraint than an order of operations rule: just as Mom says eat your vegetables before your pudding, New Originalists say to judges, "Do your historical work first, and only do your fun theory stuff if there is still room left." This is all well and good. But it also means that the historical work, in most cases, isn't doing that much of the work, and that non-historical, normative constitutional theorizing is often (depending on the case) doing a lot of the work. Which suggests that you've saved originalism only by thinning it out so much that it's not terribly objectionable. It's like defining textualism as applying the text when it's perfectly clear (The President has to be 35, period), but as permitting the use of other methods when the text isn't pellucid. This is an originalism, in other words, that you, me, and Ronald Dworkin can all line up behind. Which is great, of course, but does not give it a lot of bite.
Moreover, one can go further, I think, and question even if a judge has to apply the the historical results you dig up, even when they are perfectly clear. After all, how should we define the *subject* of an originalist's historical research: should it be focused on the relevant *clause* at issue, or should it be pitched more broadly, at the structure and more general work the clause is embedded in? Should we, to give an example, look at the P/I clause's meaning in 1868, or at the Reconstruction Amendments' purposes as publicly understood more generally? In other words, the choice of whether we should be clause-bound or non-clause-bound is inevitably prior to, and shapes the scope of, the originalist historical inquiry.
Given these two "wiggles" in the New Originalism, we can all embrace it, I'm pretty sure. I just don't think it's going to stop or even slow disagreement on constitutional meaning.
Posted by: Raoul | Sep 3, 2009 3:47:01 PM
As a practical matter, I think step 2--whether to stick with the original meaning of the Constitution--is actually prior, at least for officials who have already sworn an Article VI oath to be bound by "this Constitution." If "this Constitution" refers to the historic meaning expressed in the constitutional text (as I think it does), then normative considerations are really just considerations about whether to take a job with an Article VI oath, not considerations about what people who have taken such an oath should do.
Posted by: Chris | Sep 3, 2009 3:44:22 PM
I agree with Orin. Originalism can only go so far, and to make it a viable form of Constitutional interpretation, it must be able to function in a modern courtroom--a courtroom that contains cases the framers could not have imagined, and judges who are not of the originalist persuasion.
Posted by: GJELblogger | Sep 3, 2009 2:34:55 PM
Kurt writes: "Step two is the normative decision regarding how (or even whether) to apply that original understanding to a contemporary dispute. One often finds objections to originalism based not on the idea that texts have meaning which is fixed at the time of their enactment, but instead based on various normative considerations of justice, pragmatism, or other normative theories of constitutional enforcement. "
I wonder if it is less accurate to say that this is "step two of originalism" than to say this is " a step that several theorists who purport to be originalists agree is necessary to have originalism become a workable theory of constitutional interpretation -- and thus one more appealing to judges and likley to be adopted by them." Maybe there is no practical difference between these two formulations, but I think it draws out what might be a key dynamic: That the step 2 is less about originalism itself than it is about addressing the practical need for originalist-inspired judges to work with judges who have no interest in originalism. Or am I way off here?
Posted by: Orin Kerr | Sep 3, 2009 10:36:12 AM
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