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Constitutional Change: A Parable
On Monday I say, “Here is a wonderful document. It establishes a federal republic based on checks and balances with the purpose of protecting our natural rights and securing the blessings of liberty. It is a living document, and explains how we can update it if we need to.” And you say, “This is a good document.” On Tuesday I say, “The document has some new sentences. Now it also says we should end slavery.” And you say, “That is also good.”
On Wednesday, however, I say, “Now the document says there are some other rights that overrule some of the old ones.” And you say, “Can I read the new sentences?” I reply: “There are no new sentences. Just a new meaning.” You ask, “Where did the old meaning go, and how did you squeeze this new meaning into the old sentences?”
On Thursday I say, “Now the document says we have the right to marry any way we like. Today two men can marry each other, and tomorrow they can marry five men or five women; after that, perhaps they can marry their mothers and their dogs if they like.” You ask when the document started meaning this, and I answer “Just this morning.” You ask when I updated the words to include this new meaning and I say, “The words have not changed since Tuesday.” It’s hard to say what will happen on Friday, but it probably won’t be good.
The Theory of Originalism
Originalism in law is the theory that the meaning of the Constitution does not change except when the text changes. That is, every change in Constitutional meaning must be accompanied by a change in the words.
A related view is that the meaning of the Constitution is what its authors meant by it. This view is necessarily a version of Originalism, but not all Originalisms entail this. (More on that later!)
Objections Considered
Some objections to Originalism are worth considering, not because they are particularly good objections, but because they help to clarify what Originalism actually is.
Objection 1: The original meaning of the Constitution is outdated.
Response: This is irrelevant because we have amendments.
In fancier language, this objection mistakes the originality in question. An Originalist looks primarily to the meaning of the Constitution at the time of the Founding not because that part of the text is more sacred than its amendments, but because that’s when most of the text was written, adopted, and first read. When interpreting the 14th Amendment, however, he looks to the 1850s and 1860s. For the 26th, he looks to the 1970s. Being a good Originalist does not mean being stuck in 1787; it means looking to the original meaning of all the relevant parts of the constitution when they were written.
In a sense, all citizens are potential, indirect authors of the Constitution; we choose the federal and state representatives who select the original meaning of the next addition to the Constitution.
Objection 2: It’s too hard to know what was in the mind of the authors.
Response: The original meaning of nearly any text can take some work to understand. If it’s ever unclear in a problematic way, we can clarify the matter by adding an amendment because we can be the authors.
Also, this objection applies only to the usefulness of the claim that meaning is located here or there, and doesn’t affect its truth. (It’s hard for me to know what sort of rocks are a mile under my house, but that doesn’t make the sentence “There are granite rocks a mile under my house” either true or false.)
Objection 3: The Founders envisioned the laws applying in different ways than we now know to be necessary.
Response: If these applications are part of the meaning of the text, then this is Objection 1 again. If these applications are not part of the meaning, then this is not an objection to Originalism, but some (perhaps very good) advice on how to apply it.
Objection 4: The Constitution is about law and ethics, and these things don’t allow for clear and precise language of the sort that Originalism requires.
Response: It’s a myth that language about ethics and law is necessarily less clear and precise than language about physics, history, food, football, or pretty much anything else.
Even if it were not a myth, this is no case against Originalism. If it refers to the vagueness and ambiguity of application, then it is a retread of Objection 3 (which is, itself, often a retreat of Objection 1). If it refers to the difficulty of understanding authorial intent, it is a retread of Objection 2.
If it refers to some lack of stable reality with which ethics and law are concerned, then I say exercise your moral relativism consistently and stop imposing it on the rest of us!
Objection 5: Language never has any fixed meaning anyway.
Vernacular response: Eh? What? Speak clearly, laddie. I can’t understand you!
Technical response: If you can communicate your objection using language, Madison should be able to communicate a restriction on the federal government using language.
Extended response: We have annotated copies of Shakespeare explaining the linguistic difficulties. If high school kids can understand Shakespeare, federal judges ought to be able to understand Madison.
On a related note, why don’t we pass out annotated copies of the Constitution and make high school kids read them?
Why I Am an Originalist
I am an Originalist for the same reason a Supreme Court Justice (Clarence Thomas, I believe) is an Originalist: This is the view that should be considered correct by default, and I have no reason to think otherwise. The burden of proof lies with the objector to Originalism.
This is how written language normally works when people with some facility for reading read things written with at least a modicum of clarity. It’s why, if you disagree with me, you are able to disagree with me and not merely with the words you are reading.
(There are other reasons to accept Originalism in law. Michael Paulsen makes an argument in “Does the Constitution Prescribe Rules for Its Own Interpretation?” Robert Delahunty and Ricochet’s John Yoo make another one in “Saving Originalism.”)
But It’s Not All About the Authors!
Let’s first note this possible theory that can be added to Originalism: There is one meaning, but there can be many applications. Alternatively: The meaning of the Constitution is controlled by the author, but its application is not.
Now let’s make a distinction between Originalist Textualism and Originalist Intentionalism. According to the former, meaning is in the text; according to the latter, meaning is in the intent of the authors.
Now, as it turns out, sticking to authorial intent alone can be problematic. We need a subtler understanding. For an analogy, consider Professor Dumbledore in the Harry Potter series, whom author J. K. Rowling announced is gay after the series wrapped up. The text of her series contains no support for this (nor, any information regarding his sexuality at all). If authorial intent is all there is to meaning, then Dumbledore has always been gay; but if Rowling changes her mind later, then he will have never been gay; so it will be true and false that he was gay yesterday, which is impossible. The better answer is that the question has no definitive answer, as it is not provided or supported in the text.
So the best view is probably an Originalist Textualism. The meaning is in the text, although is shaped by the author. In practice, seek for meaning in the text itself, but always allow your understanding of it to be revised by a better knowledge of the author’s mind.
But the authors aren’t the only relevant people to consider here.
James Madison tells us that the Constitution is given its authority by the people:
[The Constitution] was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.
Accordingly, he also tells us that the only sense in which the Constitution is “legitimate” is “the sense in which the Constitution was accepted and ratified by the nation.” Those are powerful reasons to also consider the adopters of the Constitution, rather than the authors alone, to be a source of its meaning.
In the history of contemporary Originalism, that is precisely what Originalists did. Contemporary Originalism began with Judge Bork, who emphasized the original intent in writing on the part of the Constitutional authors. Originalists later shifted to emphasize the original understanding in approving by the Constitutional adopters.
But they didn’t stop there, and I don’t think we should either. The authors matter, and the adopters matter. But what matters most is not authorial intent, nor what the adopters thought it meant, but what the text itself means. That’s the real significance of Madison’s sense-in-which-it-was-accepted. There’s less need to ask “What was so-and-so thinking in year such-and-such?” The bigger question is “What did these words mean in year such-and-such?” That question should be answerable in most cases; in those where it is not, perhaps an amendment is in order.
So Originalists have shifted again: to an emphasis on the original meaning in reading by reasonable and informed readers. The story of these shifts in Originalist legal theory has been told by Mike Paulsen in “The Interpretive Force of the Constitution’s Secret Drafting History” (pages 1134-1148) and by that article from Delahunty and Yoo (pages 1088-1097).
Paulsen in these articles and others has some wonderful commentaries on what Originalism means. Gary Lawson’s article “No History, No Certainty, No Legitimacy … No Problem” is superb.
One Last Puzzle
The puzzle: If the authors control the meaning, it should be impossible for the authors of the Constitution to disagree on its meaning. Yet they did, for even the Founders disagreed with each other on constitutional matters when they came to power.
Response: Even if Originalist Intentionalism is true, there is one plausible way to handle this puzzle: They do not disagree on meaning but on application. In much the same way, I could agree with my wife that “We should take the best route to Houston” and still find room to disagree on what the best route is.
Given Originalist Textualism, it is easy for some authors to be partially mistaken regarding the meaning of their own texts, for the same reason that any person, speaking unclearly, can accidentally and without even noticing say something he does not mean. Even more than this, a person can fail to understand the full meaning of his own words. I could say to my son “Be good and virtuous,” and think I have a pretty good idea what that means, but years later he might know better what they mean. (And hopefully he will.)
Published in General
If by skepticism you mean that I harbor the suspicion that anyone who delves into “history, linguistics, political theory, economic theory, [and] philosophy” in order to answer a legal question is likely to come away with whatever conclusion they were inclined to support in the first place, then you are absolutely correct. That’s why it’s just like “the living Constitution.” It gives judges (or anyone else) a license to justify whatever interpretation they want to find.
That is not to say that “history, linguistics, political theory, economic theory, [and] philosophy” are all out of bounds. They might be legitimate considerations. But they should be approached with a healthy skepticism.
To take a current example, Prof. Tribe claims that Ted Cruz is not a “natural born citizen” based on Tribe’s examination of what citizenship meant under British Common Law. I think that Tribe’s conclusion is ridiculous. Under U.S. law as it existed at the time Cruz was born, he was a citizen at birth. That makes him a “natural born” (as opposed to naturalized) citizen. Tribe delves into history, and finds the conclusion he likes. I try to adhere to what (seems to me) to be a more commonsense meaning.
Your list is incomplete. There is another sense in which originalism sometimes fails, which is the sense I am talking about – sometimes there isn’t any “original meaning.” All four of your propositions presuppose that there is an original meaning, if only we can find it. But sometimes (especially in the Bill of Rights) the Founders stated a general principle, having no idea of precisely what it meant. As Axeman has said, there is no provision of the Bill of Rights that is, or could be, construed to mean exactly what it says. None of our rights are unlimited. Yelling fire in a crowded theater, human sacrifice in a religious ritual, etc. But there is no evidence that the Founders ever tried to figure out exactly what those limits should be. The Founders left that task to the good sense of future generations. We of future generations shirk that task if we insist that only the intent or the words of the Founders define Constitutional meaning.
Also, Auggie, I want to mention that I congratulate you for being calm and responsive in the face of my critique. Why, you even “liked” one or two of my comments. That is a good disposition for a philosopher. I often disagree with your analysis, but I appreciate your engagement and spirited discourse.
Let me add an example of a legal provision that has no specific meaning, taken from outside of Constitutional law. Section 1 of the Sherman Antitrust Act, which forms the basis of American antitrust law, is short, simple, and pretty much meaningless by itself:
The drafters of this provision certainly knew that every contract, by definition, restricts trade or commerce. If I contract to sell you my car, then I can’t go sell it to someone else. It restricts my ability to trade.
What the drafters of the Sherman Act intended, though, was to leave it up to the Courts to decide, on a case by case basis, what practices were anti-competitive.
Ironically, the fact that the Founders did the same thing – stated general principles and left it for the Courts to figure out the meaning on a case by case basis – is entirely consistent with your appeal to history. The Founders approach to the law was based on the British Common Law tradition, which relied on case by case resolution of specific disputes. In fact, if there is anything that we can say with confidence about original intent, it is that the Founders intended the Courts to interpret the meaning of the very broad and very general principles that they laid out in the Constitution.
Yeah, thanks!
More or less. I meant your view that knowledge of these matters is so frequently (or always) impossible.
I would agree–using a weaker sense of the word “skepticism” denoting caution and suspicion of error rather than your view that knowledge isn’t possible. (That’s an unhealthy skepticism you got there.)
Well, good for you. So don’t you think you know that, according to the standard (whether or not you accept it) of original public meaning, Tribe is wrong?
If that’s what you mean, then the list was clearly complete. Either all Constitutional meaning is original meaning, or it isn’t. If it isn’t, number 4 on my list covers that sort of incompleteness. If it is and you’re talking about places where original meaning still isn’t there, that’s number 3 on my list. (I suppose in your view 3 and 4 might be the case.)
I don’t believe I’ve given a set of four propositions anywhere in this thread. I did give a list of four ways Originalism might be said to be incomplete, the third of which is that there is sometimes not an original meaning!
Great. With respect to the limitations of intentionalism, see the opening post above where I address precisely this!
That presumes that we’re talking about Constitutional meaning here. We need not make that presumption; we could be talking about other legal questions that are operative in the absence of Constitutional meaning. I don’t make that presumption, and have already addressed the possibility of such questions in the absence of original meaning; see comments 34, 39, and 40.
This, if I’m not mistaken, is consistent with an Originalist textualism.
More importantly, what do you mean? That the Founders left it to the Courts to figure out the meaning of the Constitution? Or that they left it to the Courts to figure out what to do with the “huge region in the middle where the Constitution doesn’t tell us anything”? If the latter, I say it’s a job of legislation at least as much as a job for the Courts. But I agree that it was left to others by the Founders, and this is a view entirely consistent with Originalism.