Legal Commentary

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.