Friday Question: What Type of Originalist Are You?
Back in the 1980s when Ed Meese and others revived "originalism" as a way to shake off the hangover of the Warren/Burger courts, the focus was on original intent: what were the Founders thinking when they wrote those words? In recent years, the focus of originalism has shifted from the "intent" of the Founders to original public meaning: that is, what did the Constitution's words mean to those who ratified it?
I'm a fan of the newer version, but a recent essay by historian Saul Cornell tries very hard to trash the concept of "original public meaning." His point seems to be that there is so much information potentially bearing on public meaning, it leads to "cherry picking" the evidence to suit your argument. Cornell doesn't particularly like originalism of any kind, but he thinks the "intent" school is less arbitrary. (See comment at NRO).
What do you think? I realize that I'm assuming that my fellow Ricocheterians are broadly sympathetic to "originalism" of some sort, but if not, please jump in and say why.
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Comments:
Jul '10
Re: Friday Question: What Type of Originalist Are You?
I've always been reluctant to impute motives or try to read people's minds, so I go with original public meaning.
Aug '10
Re: Friday Question: What Type of Originalist Are You?
I think a whole lot more people need to read The Federalist Papers and The Anti-Federalist Papers prior to answering such questions.
Jul '10
Re: Friday Question: What Type of Originalist Are You?
I agree that would be instructive, but at the end of the day, when all the debates were over, the document was the document.
To focus on the debates leading up to the final document is sort of like saying that one equivocated about marrying one's spouse - but, in the end, one did.
Aug '10
Re: Friday Question: What Type of Originalist Are You?
My rebuttal to that argument would be: "So what?" If people do cherry-pick evidence to further a certain meaning that won't discount that there might be a larger body of evidence that deny's that interpretation. In fact, the more evidence that might be available the more accurate an interpretation one can reach, in my mind.
I don't know enough about the intricacies of both to lay claim to supporting one or the other. Each has its merits. Perhaps a mixture of both is good.
May '10
Re: Friday Question: What Type of Originalist Are You?
I prefer original intent to living constitutionalismbut I'm not entirely content with original intent either. Despite my oath to support and defend the Constitution, I don't endorse everything it stipulates.
Aug '10
Re: Friday Question: What Type of Originalist Are You?
I think that you have to attempt to understand what the original public meaning was because that is what was being ratified by the people. You should certainly take into account the arguments put forth by the proponents of the Constitution as a lens to help you understand the common understanding of the document.
The key point is that we live in a democracy and when it comes to foundational documents, how the people at large would interpret the document is more important than how a scholar would.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
Apparently, it's in the penumbras of the emanations, or the emanations of the penumbras, that you find exactly what you were looking for all along in the document. It's like a juridical séance. And it doesn't matter what you're looking for. You'll find it. Words, with discreet definitions...so old-fashioned.
Apr '11
Re: Friday Question: What Type of Originalist Are You?
Steven Potter
My rebuttal to that argument would be: "So what?" · May 6 at 10:39am
Agreed. Virtually any school of interpretation is going to open itself up to the possibility of cherry picking. The living constitution school is immune to that.
I recognize that public meaning may sometimes yield a range of answers rather than one perfectly unambiguous answer. At least a range of answers is limited by the evidence in support of each position. You do the best you can with the facts.
What the critics are looking for is a free-for-all unconstrained by evidence of any kind: "Facts and analysis are hard and don't always yield a magic answer so we'll assign whatever meaning we want to words."
Then you have to pray that the people doing the assigning don't sell you down the river.
Nov '10
Re: Friday Question: What Type of Originalist Are You?
Having never been asked to consider the difference, this is a gut feel answer, but I go with the intent of the founders (drafters) of the document. Either, however, is vastly superior to just about any other criteria, especially the "living" constitution that is said to capture the evolving standards of decency in a maturing society. Oy!
BTW, there's an excellent speech given by Antonin Scalia on Constitutional Interpretation that he gave at the Wilson Center a few years ago. In it, he defends originalism (I know, big surprise) and does a good job of exposing why it is the proper way to interpret the constitution.
Good question. Thanks for getting the Ricochetois involved.
Jul '10
Re: Friday Question: What Type of Originalist Are You?
It's Coca-Cola (original public meaning) vs. New Coke (original intent).
And We All know how that played out.
Re: Friday Question: What Type of Originalist Are You?
Quinn the Eskimo
Steven Potter
My rebuttal to that argument would be: "So what?" · May 6 at 10:39am
Agreed. Virtually any school of interpretation is going to open itself up to the possibility of cherry picking. · May 6 at 11:10am
Yes, that's my view too. We'll never get perfection, but I think original public meaning will minimize the scope for abuse. And as Nathaniel points out, it has the virtue of at least trying to keep faith with the elected representatives who ratified the Constitution and its amendments -- no small thing in my opinion.
Re: Friday Question: What Type of Originalist Are You?
If originalism is sacrosanct the Air Force is unconstitutional.
The author's focus on disagreements between the founders is moot - the disagreements were settled with the adoption of the document.
I certainly believe the intention of the men who drafted the document are important pieces of legislative history when interpreting the document. That would cast me as an originalist more toward the "original intent" side rather than the "original public meaning" side.
However, I keep in mind that the Constitution is a granting of specific powers (the original text) and a reassurance that certain powers it shall never have (the Bill of Rights).
Therefore I get to look at the whole document, as opposed to individual clauses in a vacuum. Accordingly, if I read Article I Section 8 in conjunction with the Necessary and Proper clause, I can conclude that the Constitution empowers the government to have a military, and do what is necessary and proper to protect me, so we can have an Air Force without need to amend the Constitution.
I'd like to know how you pure "original intent" or "original public meaning" guys can get me a constitutionally legitimate Air Force.
Edited on May 6, 2011 at 8:38pmJun '10
Re: Friday Question: What Type of Originalist Are You?
Adam Freedman
Quinn the Eskimo
Steven Potter
My rebuttal to that argument would be: "So what?" · May 6 at 10:39am
Agreed. Virtually any school of interpretation is going to open itself up to the possibility of cherry picking. · May 6 at 11:10am
Yes, that's my view too. We'll never get perfection, but I think original public meaning will minimize the scope for abuse. And as Nathaniel points out, it has the virtue of at least trying to keep faith with the elected representatives who ratified the Constitution and its amendments -- no small thing in my opinion. · May 6 at 11:22am
In addition to the arguments posited in the Federalist and Anti-Federalist Papers that were trying to influence the ultimate ratification decision or push for necessary revisions to the Constitution, Pauline Maier's book Ratification offers another perspective covering the lively debate that ensued by the ratification groups themselves in each state and some of the final votes were very close. I think her book also helps to frame the parameters of "original intent" as understood by a wider class of people.
Re: Friday Question: What Type of Originalist Are You?
Tommy - the Air Force thing? Come on, that was used by Lisa Murkowski, for pity sake! But since you ask, Article I of the Constitution does not purport to limit the armed forces to two branches - army and navy. Nobody at the time would have read it, for example, as prohibiting "marines" even though Marines aren't mentioned. The original public meaning of "army" was that of a volunteer or mercenary fighting force, as distinct from the "militia" (one reason why I think a federal draft is unconstitutional).
Air power is not inherently a separate branch, it's just a technology available to the armed forces. Article I is indifferent to the organization of the branches, except to give Congress the power to regulate the armed forces. Thus, Congress initially did fold the Air Force into the Army, but later made it a separate branch. Either approach is perfectly constitutional.
Re: Friday Question: What Type of Originalist Are You?
Adam Freedman: Tommy - the Air Force thing? Come on, that was used by Lisa Murkowski, for pity sake! But since you ask, Article I of the Constitution does not purport to limit the armed forces to two branches - army and navy. Nobody at the time would have read it, for example, as prohibiting "marines" even though Marines aren't mentioned. The original public meaning of "army" was that of a volunteer or mercenary fighting force, as distinct from the "militia" (one reason why I think a federal draft is unconstitutional).
Air power is not inherently a separate branch, it's just a technology available to the armed forces. Article I is indifferent to the organization of the branches, except to give Congress the power to regulate the armed forces. Thus, Congress initially did fold the Air Force into the Army, but later made it a separate branch. Either approach is perfectly constitutional. ·
Is this an originalist's argument?
You've adopted today's technology with yesterday's words. That's not originalism, but a "living breathing document" argument.
I happen to agree with you - the Constitution is no dead scroll.
But yours is not the arguement of a pure originalist.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
Adam - Given the definitions of "original intent" versus "original public meaning" wouldn't one conclude that the ratifiers were attempting to discern "original intent" from the Framers who delivered the document to them?
So, aren't the the ratifiers themselves in the "original intent" group?
The consensus from the ratifiers wasn't unanimous or uniform. There was a lot of heated argument in each ratification committee, so "original public meaning" can only be based on the final view from the majority of the ratifiers but not all of the ratifiers.
And it has to said that some of those who voted for ratification felt the need to do so out of necessity to bolster the confederation of colonies by establishing more rational terms of commerce, currency and defense - because they knew that failure to do so would invite disintegration and weakness in the face of a looming threat from Britain or other threats in the future - even though they still had many unresolved issues with aspects of the final ratified document.
So, "original public meaning" is a bit of a ruse since the public were arguing many provisions of the final document before, during and immediately after ratification.
Edited on May 6, 2011 at 9:17pmNov '10
Re: Friday Question: What Type of Originalist Are You?
As a written document it seems the Constitution should be interpreted as any other contract would be and that usually looks to the intent of the parties at the time the contract was made. On closer look the manner in which the intent of the parties is found appears to be closer to original meaning Constitutionalism than original intent. Courts often says things like, “It doesn’t matter what the parties might have intended to say but what they actually did say,” and that "unless the contract is ambiguous the intent of the parties will be found in the plain meaning of the words they used.”
In case of ambiguity extrinsic evidence may be consulted to resolve the ambiguity. That seems close to original meaning where historical investigation of how words were understood at the time is deemed proper if there is sufficient indication that they might have been understood differently then than now.
The subjective intent of the parties is irrelevant in contract interpretation because there is no way to actually know it, and the same should be true for interpreting a constitution written more than 200 years ago.
However, original meaning is possible to know, which recommends it.
Re: Friday Question: What Type of Originalist Are You?
I disagree Tommy. I think you're creating a straw man originalist: you know, the guy who believes that the Constitution requires us all to march around in breeches and tricorn hats. Military technology and organization change all the time, in the 18th century as today. My argument is that the ratifiers of the Constitution would not have understood Article I as limiting the federal government to a two-branch military. The word "army" had a broader meaning than "infantry."
Jun '10
Re: Friday Question: What Type of Originalist Are You?
The challenge for the Supreme Court is to sort out now new eventualities or new information can be processed in light of a document written 230 years ago. One would hope that the justices and their clerks would have done their due diligence by not just referring to the Federalist, Anti-Federalist Papers, James Madison's comprehensive notes of the deliberation of the Constitutional Convention, correspondence between many of the Framers and other original source material, but also the debate and discussions amongst the ratifying committees themselves. To ascribe a label of "original public meaning" is to make the inference that the public agreed uniformly on what the meaning of various aspects of the document were, which doesn't stand up historically since the ratification votes aren't unanimous and arguments back and forth were quite animated.
Nov '10
Re: Friday Question: What Type of Originalist Are You?
Some words in the Constitution are susceptible to a “plain meaning” approach. No historical context need be considered to understand what was meant by “Congress shall make no law...”, whereas the words, “A well regulated militia being necessary to the security of a free state...” needs to be understood in the context of the events taking place in the times it was written. We don’t need to rely upon or even know the subjective intent of any one of the participants of those events to know the common understanding of the whole people.
Our problem today is that some of our people think “Congress shall make no law...” is an ambiguous phrase.