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:
Jun '10
Re: Friday Question: What Type of Originalist Are You?
TeeJaw: 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. · May 6 at 12:32pm
Yes, thankfully William Jefferson Clinton is not on the Court. "It depends upon what the meaning of the word 'is' ...is?"
Ack!!!
Re: Friday Question: What Type of Originalist Are You?
Brian Watt: 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. · May 6 at 12:15pm
Edited on May 06 at 12:17 pm
Brian, I agree that the ratifiers probably had a mixture of motives in voting for the Constitution. But I am not suggesting that we try to discern the "intent" of the ratifiers either. Much as TeeJaw says above, we should interpret the Constitution like any other legal document -- secret intentions don't count, only the words of the approved document. And when I say "the meaning" I refer to the meaning that the words would have conveyed to the ratifiers -- educated men of 1789-91.
Take the term "due process." If you believe in the "living constitution" you'll say that "due process" is a flexible concept that limits the power of legislatures. But if you believe in original meaning, that doctrine (aka "substantive due process") is absurd because "due process" was widely understood to refer only to judicial procedures.
Original public meaning won't answer every interpretive question, but it will answer many.
Nov '10
Re: Friday Question: What Type of Originalist Are You?
That there was disagreement over particular provisions of the Constitution doesn’t mean they didn’t have a common understanding of the meaning of words used in those provisions, does it? Doesn’t that indicate that they perfectly agreed on what the words meant, and some did not like what that added up to?
Jun '10
Re: Friday Question: What Type of Originalist Are You?
Adam Freedman
Brian Watt:
Brian, I agree that the ratifiers probably had a mixture of motives in voting for the Constitution. But I am not suggesting that we try to discern the "intent" of the ratifiers either. Much as TeeJaw says above, we should interpret the Constitution like any other legal document -- secret intentions don't count, only the words of the approved document. And when I say "the meaning" I refer to the meaning that the words would have conveyed to the ratifiers -- educated men of 1789-91.
Take the term "due process." If you believe in the "living constitution" you'll say that "due process" is a flexible concept that limits the power of legislatures. But if you believe in original meaning, that doctrine (aka "substantive due process") is absurd because "due process" was widely understood to refer only to judicial procedures.
Original public meaning won't answer every interpretive question, but it will answer many. · May 6 at 12:39pm
Yes, not arguing for 'secret intentions' only what we can actually discern from as much of the available documented literature or comments of the time. More rather than less.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
TeeJaw
That there was disagreement over particular provisions of the Constitution doesn’t mean they didn’t have a common understanding of the meaning of words used in those provisions, does it? Doesn’t that indicate that they perfectly agreed on what the words meant, and some did not like what that added up to? · May 6 at 12:40pm
True. It does mean that for the most part they disagreed on the actual article or some aspect of the article as written. So, in the context of an interpretation of actual language "original public meaning" is fine but still incomplete to settle constitutional arguments. I also still think that "original public meaning" gives the impression that the ratifiers were all uniform in their agreement of what was acceptable as written which is obviously not the case. That's why I don't think you can ever get away from "original intent" either. One has to discern what "original intent" is in the context of the accepted vernacular of the time and the motivations of the Framers. Arguments will continue to arise on what the Framers intended by what they wrote and there is no escaping it.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
The two (count 'em) branches of service are the Military and the navel (ok Naval, though I really don't understand people who like that much water). The Air Force started out as, and in the main still is, a support arm of the Army, the Military branch of service, and is referred to as being Military.
Now, what passes for leadership in the Air Force, why, that's unconstitutional! (It's been more than 40 years, wherenheck is that tanker?!)
Re: Friday Question: What Type of Originalist Are You?
That meaning didn't include flying machines as a separate branch of service.
There was no original intent or original public meaning for airplane. You are going to have to be an "originalist +" to get the Air Force in the Constitution.
That "+" is going to be a vehicle that allows you to apply the words of the founders to something the founders didn't consider, which takes you out of "intent." Unless you think the Air Force to exist in the penumbra of the Army.
Better to think in terms of "does this violate?" the original intent rather than "was this literally intended?"
Thats why I look at Article 1 Section 8 in conjunction with Necessary and Proper clause to get Constitutionality for the Air Force. It's an interpretation of the document in toto, which might not fit well with an "orginialsts" rigid rule of literal textual meaning.
Perhaps I'm assuming too much. Does your originalism require exacting literalism?
Edited on May 6, 2011 at 10:14pmSep '10
Re: Friday Question: What Type of Originalist Are You?
May I mention Thomas Pangle:
Here, here and here?
Dec '10
Re: Friday Question: What Type of Originalist Are You?
How can any idea form, good or bad, without intent? How can any unintended consequence, such as the Air Force, be judged good or bad, without an understanding of what was intended?
Distasteful demagoguery besmirches the 3/5 provision of Article 1, Section 2, Paragraph 3 when criticism of its effect suppresses the understanding of its intent.
Secularists have a purpose for suppressing intent because anyone searching for the Judeo-Christian traditions inscribed in our Constitution will find them everywhere in the history of its making.
Just as the word liberal now longer means laissez-faire, and blue states are no longer the symbol for Republican, collectivist sympathizers and our tribal media continue to tell us the Constitution is not an agreement to protect individual freedom and to govern federal power; it is a pact among career politicians empowering them to reward their allies and punish their rivals.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
Tommy De Seno
That meaning didn't include flying machines as a separate branch of service.
I didn't see the world "cavalry" in there, nor "artillery" either. They seemed to have slipped by the framers somehow. Yet they were part of the Army of the day. Did you know the French Air Force is call the Army of the Air? If it's any consolation the first uses of air power, in the form of kites, certainly known to the learned men of the day, date back to ancient China.
Re: Friday Question: What Type of Originalist Are You?
Robert E. Lee
Tommy De Seno
That meaning didn't include flying machines as a separate branch of service.
I didn't see the world "cavalry" in there, nor "artillery" either. They seemed to have slipped by the framers somehow. Yet they were part of the Army of the day. Did you know the French Air Force is call the Army of the Air? If it's any consolation the first uses of air power, in the form of kites, certainly known to the learned men of the day, date back to ancient China. · May 6 at 1:51pm
Nor are "cavalry" and "artillery" separate branches of the military.
That's my point. We aren't talking about an advancement in technology. We are talking about the power to set up another branch of the military.
The framers set up two. If you are an "originalist" and I suppose a "literalist" you can't make an argument for government power to set up a third.
Since I'm an orginalist in toto, and not a literal textual originalist, I can.
Edited on May 6, 2011 at 11:32pmApr '11
Re: Friday Question: What Type of Originalist Are You?
I seek clarification:
Is the issue whether the Air Force can be a separate branch of the military or whether air power is allowed at all under the Constitution, even under the aegis of the army or navy?
To me, the first is a fair question, although even if it were a problem, it could be solved by some bureaucratic shuffling. The second is just silly. I would be very surprised if Clauses 11-15 of Article 1, Section 8 were understood or intended as a technological limitation on the military. Although I would defer to someone who did the research, I would suspect that the reference to armies and a navy were designed to encompass all of the military power available, not to exclude future forms of power, whether or not it allows for that power to exist in a separate department.
Jan '11
Re: Friday Question: What Type of Originalist Are You?
The constitutional debate over interpretation parallels the philosophical debate over meaning. It's a meta-debate. It isn't about the words themselves, but on how to use the words. And because of that, the words themselves can't decide the issue.
That's why we constantly talk about "consent of the governed." That is what decides the interpretation. Consent is what authorizes action. If you don't have consent, you don't have authority.
If the interpretation is unclear, or if there is dispute, the default interpretation is that government doesn't have the power. Government can't proceed as if they had consent when half of the country disputes that they gave consent. That's why the "living constitution" argument fails. Even if the words are "ambiguous," the ambiguity means there is no authority.
____
Besides, most of the words are easy to understand. We can understand Plato easily enough, even though he wrote in a different language, thousands of years ago. So it's facetious to suggest that we can't possibly fathom what people of our own language were thinking just a few decades ago.
Dec '10
Re: Friday Question: What Type of Originalist Are You?
The Constitution was written, revised, and finalized after much discussion, debate, and compromise amongst many individuals.
The authors did not include a glossary. Nor did they reference a particular edition of a contemporaneous dictionary.
It was then ratified only after much discussion and debate.
When discussion of "original public meaning" is distilled it essentially becomes a discussion about the original intent of the authors and their definition of the words they used. Unless one thinks the authors were speaking in code.
Nov '10
Re: Friday Question: What Type of Originalist Are You?
Perhaps there are a few things that need not be expressly stated in our Constitution, or any founding document. Any sovereign nation must defend itself from foreign attackers and invaders. From the first flight at Kitty Hawk it was clear that flying machines were going to be used as weaponry in future wars. Airplanes and an air force, whether part of the army or a separate military branch, are therefore authorized by the U.S. Constitution, or any constitution as the founding document of any sovereign nation, whether expressly stated or implied as a matter of necessity.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
Nickolas: The Constitution was written, revised, and finalized after much discussion, debate, and compromise amongst many individuals.
The authors did not include a glossary. Nor did they reference a particular edition of a contemporaneous dictionary.
It was then ratified only after much discussion and debate.
When discussion of "original public meaning" is distilled it essentially becomes a discussion about the original intent of the authors and their definition of the words they used. Unless one thinks the authors were speaking in code. · May 6 at 5:12pm
Thanks for the making the point more succinctly than I was able to. I don't see how "original public meaning" doesn't inevitably lead to "original intent" especially on the thornier issues. Even Adam acknowledges that original public meaning won't answer every interpretive question (#22 above). That's why I would advocate a more inclusive due diligence on those areas of dispute...which is what I hope the justices and their clerks engage in.
Jun '10
Re: Friday Question: What Type of Originalist Are You?
Tommy De Seno
Nor are "cavalry" and "artillery" separate branches of the military.
That's my point. We aren't talking about an advancement in technology. We are talking about the power to set up another branch of the military.
Ah, but to the military cavalry and artillery are indeed separate branches of service, designated by their own, different color-coded uniforms: yellow for cavalry, red for artillery, and light blue for infantry. Even today the Army wears their branch of service insignia and colors on their dress uniforms. Air power was originally assigned to the signal corps, though it has a strong relationship with artillery.
The branches themselves are of importance to the services, to be sure, but I believe to the framers of the Constitution the "Army" signified sum and total of the land forces of the day and not their specific make up.
Nov '10
Re: Friday Question: What Type of Originalist Are You?
Brian Watt
Arguments will continue to arise on what the Framers intended by what they wrote and there is no escaping it. · May 6 at 1:01pm
Right. But original public meaning allows us to resolve those arguments by looking to what they wrote and avoids the useless task of trying to figure out what they may or may not have intended, which leads to endless disagreement, and mischief.
Dec '10
Re: Friday Question: What Type of Originalist Are You?
TeeJaw
Brian Watt
Arguments will continue to arise on what the Framers intended by what they wrote and there is no escaping it. · May 6 at 1:01pm
Right. But original public meaning allows us to resolve those arguments by looking to what they wrote and avoids the useless task of trying to figure out what they may or may not have intended, which leads to endless disagreement, and mischief. · May 6 at 9:54pm
What was the original public meaning of the provision in Article 2, Section 1, Paragraph 5 for “natural born Citizen”?
Nov '10
Re: Friday Question: What Type of Originalist Are You?
Charles Gordon
TeeJaw
Brian Watt
Arguments will continue to arise on what the Framers intended by what they wrote and there is no escaping it. · May 6 at 1:01pm
Right. But original public meaning allows us to resolve those arguments by looking to what they wrote and avoids the useless task of trying to figure out what they may or may not have intended, which leads to endless disagreement, and mischief. · May 6 at 9:54pm
What was the original public meaning of the provision in Article 2, Section 1, Paragraph 5 for “natural born Citizen”? · May 6 at 10:07pm
I’d say the Naturalization Act of 1790 offers guidance on the original public meaning of that phrase. That Act established the United States citizenship of children of citizens, born abroad, without the need for naturalization. It said "the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”.
Original public meaning wins again. Heh.