« The remedy to be applied (Updated) | Main | The Initially-Foreign-Trained Law Student and the Legal Academic Job Market - Lubin Guest Post »

Saturday, May 30, 2020

Original Intent vs. Original Public Meaning

I'm still writing the portion of my book on Ogden v. Saunders (more on that to come). Here is one thought that flared up after reading Justice Washington's opinion.

He said there that his task was to discover the intent of the framers of the Constitution. There is a great deal of literature on the distinction in originalism between original intent, original understanding, and original public meaning. What I'm struck by is that original public meaning is a far more democratic understanding than original intent. To seek the latter, you are looking at the views of a small number of people. For the former, you are supposed to look at everything written at the relevant time and go more with a broader understanding that does not give special weight to the views of the drafters. This is, for example, a way of contesting John Bingham's view of the Fourteenth Amendment. Sure, he was the drafter, but were his views widely shared or even known.

To what extent, though, does original public meaning represent an anachronism by taking a more democratic view of original meaning? Maybe the answer is that original intent is the right approach to the Founding because that was a more elitist project. And the 14th Amendment, by contrast, should be read more in line with original public meaning because America was more democratic by then. Or maybe neither period should be viewed that way: only modern constitutional amendments (such as the 25th and 26th) can be so read because they were the only ones ratified by a very broad electorate.

Posted by Gerard Magliocca on May 30, 2020 at 10:18 PM | Permalink


You have to be careful how you understand original public meaning. For instance, I’d argue that the public meaning of the term “benzene” is “whatever the experts understand benzene to mean”. Similarly, it seems plausible the original public meaning of much of the constitution is “it’s whatever the trusted legal experts in my states understand it to mean” with their vote being basically an expression of trust in their leaders.

Posted by: Peter Michael Gerdes | Jun 2, 2020 12:36:34 PM

"OPM originalism is essentially Textualism as applied to the Constitution"

I'm not sure if the capitalized form is suggestive, but "textualism" to me would include using the text to interpret the Constitution and to me personally that is separate from originalism, which at best is a form of textualism. But, since the two are often combined, there seems to be a specialized usage out there too.

Posted by: Joe | Jun 1, 2020 1:27:35 PM

There are some words in the Constitution that were not known to average people, such as “letters of marque.” This tends to support Blackstone’s rule that “what that law is, every fubject knows ; or may know if he pleafes : for it depends not upon the arbitrary will of any judge ; but is permanent, fixed, and unchangeable, unlefs by authority of parliament.” So the meaning was not what John Doe would understand at first,but rather what John Doe could find out if he investigated the matter using publicly available materials.

Posted by: Andrew Hyman | Jun 1, 2020 2:55:43 AM

It strikes me that to the extent that OPM originalism is essentially Textualism as applied to the Constitution (which is pretty much what I understand Larry Solum to be arguing), the questions you raise are beside the point, b/c they deal with a different type of meaning. That suggests that the kinds of understandings you are talking about would be relevant only in the Construction Zone, where the object is no longer to determine original meaning.

Posted by: Neal Goldfarb | Jun 1, 2020 2:46:21 AM

Originalism's a bad idea, but it seems to me that original public meaning originalism doesn't really have the problem with anachronism that you suggest, so long as the public is understood as the relatively sophisticated class of persons that took part in the ratification conventions, not, say, the rather large numbers of illiterate Americans who wouldn't have participated. That said, the participants in the ratification process were diverse enough that the Constitution was actually translated into Dutch and German so that people who primarily spoke German and Dutch could read it before voting on it. See: https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1023&context=concomm

Posted by: Asher Steinberg | May 31, 2020 5:38:28 PM

It might be notable that he was writing at a time when people were still alive who could personally tell you want the intent of the framers were.

The literature includes a lot of criticism including how to determine such a thing as "the intent" when there was conflicting understandings and so many parties (including state ratification). "Original public meaning" is somewhat more realistic in that sense.

As to the elitism issue, not sure how much that adds. The "public" might be smaller but "original public meaning" still would be different from intent. Are we talking electorate here, for instance? The Constitution also seems a bit curious to be too elitist. It speaks of "the people" and they in some sense was understood to ratify by means of conventions. Elitist would be more a matter of HOW it operated in various respects including the Electoral College or Senate.

OTOH, even there, it seems a bit novel to not count let's say women because they didn't vote as if they didn't have any influence at all on the meanings of things. Elite women at the very least has some influence.

Anyway, I wonder if the 1820s and 1830s was a bit of a turning point where the ties to "original" understanding started to weaken more as the final framers died off in lieu of precedent etc.

Posted by: Joe | May 31, 2020 1:07:23 PM

Important issue. But, the statistical aspect, has nothing to do here. It is not question of quantity or majority, but, of relevancy and expertise:

The right terms are: subjective intent(of the framer)which is the starting point in every legal analysis. But, the subjective intent, must be synchronized, with current days, and objective intent. Means: how it is settled or reconciled or harmonized with constitutional principles, and other codes or statutes. It is simply, evolutionary process by its nature.

As brought in the past, very simple and even brutal illustration, I quote the fourth amendment:

" The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Reading it, we can clearly observe, that, the fourth amendment provides, that no search without reasonable cause or suspicion, or without warrant indeed, shall be carried out. Yet, even at the time, had to be violated, in light of the need, to conduct unconstitutional searches in borders. No suspicion, no warrant, how to search on one person or his baggage or whatever he would carry on him, while crossing borders ? This is a warranted exception, not mentioned by the founders, yet ruled so by courts. But, the evolution goes further:

What about, searching and screening, electronic devices(like cell phones, and laptops) while crossing the borders. Is it the same? to search, the belongings of someone like suitcases as so forth... or, inside cell phone, while the very core of privacy and intimacy is searched and exposed. And further:

Is is the same, like, screening actually the body, in and within? All this must be constantly synchronized by experts of law(courts).

Yet, when starting the process of synchronization in a given case, the starting point, is the law( fourth amendment)and the intent (the subjective, as they view at the time). From there , one reaches further, to the current, and objective intent. Objective means, like in the case of the fourth amendment, that:

Although the framers, didn't address the issue of checks in the borders, we must assume, that that was their intent, to exempt the border crossing ( which is the objective intent actually).


Posted by: El roam | May 31, 2020 5:25:42 AM

Post a comment