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Academic

: Legal Theory Blog

Originalism Here & There

By Lawrence Solum

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Originalism popped up hither and yon yesterday:

In the New York Times, Rammesh Ponnuru opined:

Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it.

In fact, none of the justices ? not even Justice Thomas, the most originalist member of the court ? discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary.

I'm not sure that I disagree with the thrust of this comment, but the execution is certainly sloppy. Original intent? Where has Ponnuru been? The Op/Ed form does not lend itself to careful legal analysis, but this is pure hand waving.

Ari Shapiro had a very thoughtful piece on NPR with a version on the website. Here is a taste:

Yale law professor Reva Siegel is one of the progressive legal scholars at the forefront of this debate. She argues that judges can neither ignore the past nor give it unquestioning loyalty.

"The Constitution is neither an agreement that was made by persons long dead, nor is it something that simply reflects the understandings of living Americans," Siegel says. "In fact, it's a living tradition that links the struggles, commitments and beliefs of Americans past, present and future."

Siegel co-edited the new book The Constitution in 2020 with Yale law professor Jack Balkin.

Balkin argues that the Founding Fathers intentionally made some passages of the Constitution very specific ? such as the requirement that the president be at least 35 years old ? and other passages intentionally vague.

And Michael Dorf had a fine post:

What if popular values have changed? Why can't that warrant a changed constitutional reading? Suppose that just about everybody thought that there was no denial of equal protection to forbid same-sex marriage in 1868 but that today people understand this to be unequal. If the meaning of a "reasonable" seizure under the Fourth Amendment depends on the technology available at the time the seizure occurs, why doesn't the meaning of "equal protection," or "cruel," or, for that matter, "reasonable," depend on the values commonly held at the time the issue arises?

Dorf onto the crucial issue, but I wish he had avoided the difficulty that plagues debates about originalism, the failure to clearly specify the sense of the word "meaning"--which is notoriously ambiguous. Originalists are right to insist that the linguistic meaning or semantic content of the constitution is fixed--at the time each provision is framed and ratified. But the fact that linguistic meaning is fixed does not imply that applications are fixed--as Dorf points out, circumstances change. Can a change in values support a change in constitutional doctrine? Jack Balkin's point about vagueness in the NPR story suggests that it can: where the constitutional language is vague and the case at hand falls into zone of underdeterminacy, then "constitutional construction" is required. Originalist constitutional interpretation can tell us that the linguistic meaning was vague, but something more is required to resolve the vagueness and decide the case at hand.

Full post as published by Legal Theory Blog on June 25, 2009 (boomark / email).