Legal Commentary

Rick Hills? recent post honored my work as providing an example of originalism ?in its best light? and providing an acid test regarding the originalism as a workable theory of constitutional interpretation.  Given the outstanding nature of Rick?s own work, I?d hate to be the one responsible for his concluding that originalism is a ?dead end.?  Thankfully, it appears that Rick has actually rejected a form of originalism which has been abandoned by contemporary originalists themselves?original intentions originalism.  If I have convinced Rick that that form of originalism is a dead end, so much the better.

Originalism as described and defended in the 1980s sought to determine the original intentions of the framers of the Constitution.  Edwin Meese and others defended this approach as a means of limiting judicial discretion.  This is what Rick means by ?the original judge-constraining purpose of the theory.?  The search for original intentions, however, was abandoned in the face of withering criticism regarding the impossibility of identifying and aggregating the private intentions and motivations of the framers.  For example, as multiple sociological historical works have pointed out, there were myriad views at the time of the Founding regarding the dangers of the national government ?fears which often (though not always) tracked the so called country-court populations and interests.  Trying to make the text reflect any or all of these multiple ?intents? is simply impossible.

But original meaning originalism does not claim that the ?meaning? of the text can be found in the private intentions of the framers, much less their personal expectations regarding how the text would be applied to particular contemporary disputes (like chartering a national bank, etc).  This would indeed be a sociological?and not a semantic?historical enterprise.  Original meaning originalism claims that the meaning of the constitution ?is fixed by the original public meaning of the text?the conventional semantic meaning of the words and phrases in context.? (Solum).  This is a semantic enterprise, for it looks for patterns of common usage of words and phrases.  Historical motivations and expected applications can play a role in determining common understanding of words and phrases, but they are not the central concern of the approach. 

More after the break:

Rick indicates that modern judges, even if they were able to recover original meaning, would never apply the original intentions or follow the original expected application of the text.  This is, of course, an overstatement.  There is no difficulty applying the original understanding of a variety of texts in the Constitution, including provisions that use terms that have changed meaning over time, like the power to protect against ?domestic violence.?  Rick must mean that sometimes the original meaning is so divergent from contemporary constitutional practice that one cannot possibly expect contemporary judges to apply the original understanding.  This is an important point?even if one can recover the original meaning of a text, there may be good reason not to apply that meaning to a contemporary dispute.  This might include normative reasons of justice, or rule of law values (including stare decisis), or anyone of a number of normative theories.  But these theories do not change the original meaning of the text.  This is why original meaning originalists distinguish the recovery of original meaning from the actual application of such meaning to contemporary disputes?this last step requires a normative theory.  My personal view is that the political theory of popular sovereignty provides normative justification for contemporary application in most situations, but even if I am incorrect about this, this does not change the fact of original meaning.

Finally, as should be clear by now, original meaning originalism is not wedded to earlier theories which used history as a tool for limiting judicial discretion.  It is possible, after all, to conceive of a text which was originally understood as providing for (or greatly expanding) judicial discretion over any number of issues.  Or not.  It all depends on the original meaning of the text.  It is possible, of course, that the original meaning of a text is lost, or that the text lacked any commonly understood meaning (even at its core).  These situations may require judicial construction, as opposed to judicial interpretation (a concept developed by scholars like Keith Whittington and Randy Barnett).  On the other hand, we may find that original meaning is recoverable to some extent and, to that extent, we can know something of the original meaning of the clause.  This partial knowledge may be?indeed, often is -- enough to resolve contemporary disputes for judges who follow original meaning originalism.

To take a simple example, a judge committed to original meaning originalism would decline to read the Ninth Amendment?s reference to ?rights . . . retained by the people? as constraining state government because the phrase ?retained by the people? in the context of the proposed Bill of Rights was understood by its drafter and its ratifiers (and everyone else for the next 150 years) as a term binding only the federal government.  This meaning is recoverable through historical investigation of how the words and phrases of the Ninth Amendment were used and understood at the time of their enactment?this is a semantic, not a sociological, endeavor. 

In terms of judicial application, the words of the Ninth Amendment declare that there are additional limitations on federal power beyond those ?enumerated? in the Constitution (indeed, there is no other coherent way to understand the text).  Applying the original understanding of these words requires courts to reject any attempt by the national government to claim that the only limitations on the scope of its power are found in the specifically enumerated rights of the Constitution.  Judicial enforcement of the clause thus necessarily requires some kind of limited construction of federal power beyond the specific limitations in Article I section 9, or in the Bill of Rights.  Rick may not like the term ?narrow? or ?strict? construction, but such a rule seems inevitable, given the necessary implications of the original meaning of the text.

In sum:  Rick is quite right to conclude that the sociological enterprise which constituted original intentions originalism is a dead end.  Nothing in his post, however, calls into question the theory or application of original meaning originalism.