The New Originalism: Answering the Questions Nobody Asks?

constitution_thumb_295_dark_gray_bg.jpgOriginalism is back in the blogs. Michael Dorf posted a brief column on Findlaw, Who Killed the “Living Constitution”?, followed by a comment from Larry Solum, a rejonder from Randy Barnett, a response from Dorf, and another reply from Barnett. (This follows the flurry of activity a couple of weeks ago on the meaning of “natural born citizen” — see Jim Lindgren, Solum, Jack Balkin, and Solum). This debate is over “New Originalism,” and how much New Originalism differs from Old Originalism or from “Living Constitutionalism” (presumed to be the only other choice — more on that in some other post).

Balkin, Barnett, and Solum are all “New Originalists” — originalists who stress, not the original intent of the authors of a particular legal text, which is unrecoverable in many instances, but rather its “original public meaning” — the meaning that a given sentence would have been assigned by its audience at the time it was drafted. Over the past few years, in a book by Barnett, in two articles by Balkin, in numerous blog posts, and in various other places the general contours of New Originalism have been delineated. Broadly, New Originalism looks to original public meaning to the extent that is helpful; if not, then the interpreter of a constitutional provision is free to look elsewhere for meaning, such as the structure of the text, court precedents, or what have you. That latter process, drawing from the work of Keith Whittington, is called “construction,” to differentiate it from “interpretation” of the Constitution, which (the story goes) requires looking only at original public meaning. New Originalism can therefore be thought of as a kind of Chevron two-step analysis for constitutional law: (1) Is there a clear original public meaning? (2) If not, is the proposed interpretation reasonable under other interpretive methods?

Dorf argues that, to the extent the analysis stops at Step One, New Originalism can produce some “odious” results, a remark Barnett takes him to task for. I would modify Dorf’s concern to add that the problem is not so much “odious” results, but bizarre results; results not only out of step with where the law is, but out of step with any plausible account of where it’s going–which is what would distinguish, in my mind, Sweatt v. Painter from a decision finding, for example, that the original public meaning of the letters of marque clause was to permit Congress to require the entire citizenry to wear chicken costumes on Sunday. Sure, that’s ridiculous; but suppose we dug up incontrovertible evidence that that’s what the public would have understood by it (what else could “letters of marque” mean?). Barnett is apparently willing to bite the bullet and say, well, if that’s what the original public meaning was, we’re stuck with it, until the Article V amendment process runs its course. Break out the chicken suits.

But although that debate is philosophically interesting, I don’t think it’s where the real action is, so resolution of that particular criticism of Dorf is not terribly important. Rather, my impression is that Barnett, Balkin, and Solum believe relatively few controversial questions will actually get resolved at Step One. (I should note that Balkin’s Step One, by explicitly incorporating “principles,” can be Step-Two-like. I don’t think that fundamentally changes my analysis.) Rather, most questions will be proceeding to Step Two.

And Dorf’s criticism there is, Step Two is not a heck of a lot different than Living Constitutionalism. Nearly all of the interesting constitutional interpretation issues jump immediately to Step Two–the nonoriginalist part of New Originalism. That is, all of the phrases of the Constitution that produce actual litigation–“equal protection of the laws,” “due process,” “commerce,” “necessary and proper,” “freedom of speech,” “cruel and unusual punishment,” etc.–all are vague, and therefore not susceptible to Step One resolution. Original public meaning can do nothing to resolve any of those disputes.

This, according to New Originalists, is actually a feature of their theory, not a bug. Original public meaning gives us the bedrock on which constitutional interpretation rests; it tells us that when the Constitution says “thirty-five years old,” it can’t be read to allow a president who is only thirty; it tells us that the obligation of the national government to protect states against “domestic violence” does not refer to spousal abuse. The problem is, no one argues those issues. There are no cases in which someone petitions the Supreme Court for a ruling on whether states should get three senators. New Originalism answers the questions no one asks.


That’s actually fine, if New Originalism were meant as a blow in the battles between philosophers of language. Philosophers of language have been struggling for decades to figure out how simple sentences such as “The cat is on the mat” or “Water is wet” come to have the meanings they do (assuming they have any meaning at all). But I think it’s fair to say that the promise of originalism has been far different than that. Rather than a theory of constitutional language, originalism has long been billed as a theory of interpretation–a theory that, when skillfully applied, will give us the answers to the really hard questions in constitutional law: is there a constitutional right to privacy? Why is Brown v. Board of Education rightly decided (or is it)? Is campaign spending free speech? Is it “necessary and proper” to the Commerce power for Congress to regulate home-grown wheat? What level of notice of a proceeding is required by due process?

The originalist part of New Originalism–Step One–does not provide answers to those questions. It only, as far as I can tell, makes us jump through an extra hoop before getting to where the action really is: non-originalist Step Two of the analysis, where courts and other interpreters can look at precedents, structure, history, context, public policy, and other sources of meaning.

If that’s how New Originalism would work in practice, it’s not even a second-best interpretive choice, as Barnett puts it. In most cases, it’s simply an unnecessary hoop before the main action — figuring out what the Constitution means today.

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14 Responses

  1. 2L says:

    You characterize “Step 1” problems as easy, like how old the President needs to be. But you ignore the part of Barnett’s post where he says that “Step 1” actually resolves many supposedly difficult constitutional issues (e.g., commerce clause).

  2. Bruce Boyden says:

    I’m not sure that’s what he says, although maybe it’s what he believes. Here’s the relevant section of the post:

    [H]owever large or small is “the domain of construction” is to be decided after we decide what meaning is conveyed by the text. I believe (a) that a great many cases would be decided by this meaning, (b) choices within the remaining domain of construction would still be bounded by this meaning, and (c) a good deal of constitutional law would still be required to put the meaning of the Constitution into effect.

    What I’m not clear on is whether “a great many” cases is a large percentage or not. There are an awful lot of constitutional issues raised every year so even a small percentage might be “a great many.” I’m also not clear on what percentage of the “great many” are hard cases, not “thirty-five means thirty-five” type cases. Looking through The Lost Constitution, the interpretation of “commerce” seems to me to be the one area where Barnett has a clear argument that the original public meaning alone can determine the outcome of widely contested cases.

  3. TJ says:

    Although this has been pointed out; as we know from Chevron analysis, a lot also depends on how you draw the line around Step One. If you exhaust every device of figuring our the supposed public meaning, and have small armies of historians looking at it, you will predictably get two things: (1) some evidence of original public meaning at some level of generality; and (2) conflict within the evidence. And good lawyers can pretty much always find ways to spin this additional data either for or against going to Step Two.

    For example, until the John McCain flap showed up, a clause that most people might think would be subject to Step One analysis would be the “natural born citizen” clause.

  4. Chris says:

    “That is, all of the phrases of the Constitution that produce actual litigation–‘equal protection of the laws,’ [&c.] … all are vague, and therefore not susceptible to Step One resolution. Original public meaning can do nothing to resolve any of those disputes.”

    For one example of how original-public-meaning interpretation (though I’d prefer “textually-expressed sense”) can make a difference to the clauses that people really care about, see here and here, arguing that the historic textually-expressed sense of the Equal Protection Clause is an entitlement to the “protection of the law,” i.e., law-enforcement and remedial services. (The Privileges or Immunities Clause is what protects against second-class citizenship.)

  5. Chris says:

    The extensive discussion of the original meaning of the Second Amendment in Heller also illustrates the importance of original meaning in actual litigation.

    For Brown, see the second half of this.

  6. bdg says:

    Not to get all Monty Python here, but is there anyone who thinks that historical inquiries into the beliefs of those who lived in the past are really objective enterprises that can be resolved without major interjections of the contemporary values of the historian? In which case, what exactly is the difference between steps one and two? And isn’t that largely the point that’s been made about Chevron?

    Or is deconstructionism “out” again among historians? It’s been a while for me since my sophomore tutorial.

  7. Joseph Slater says:

    You don’t have to be a deconstructionist to believe that serious history frequently raises at least as many questions as it answers, or at least that it often cannot provide the type of certain answers that lawyers would like it too.

  8. Chris says:

    “[I]s there anyone who thinks that historical inquiries into the beliefs of those who lived in the past are really objective enterprises that can be resolved without major interjections of the contemporary values of the historian?”

    [Tentatively raises hand.] I don’t think that understanding what someone has said in a previous generation is any different as a conceptual matter from understanding what someone said across the breakfast table. It might be difficult, but that’s no excuse for not making an effort. If it’s possible to ascertain the beliefs of blog commenters in an objective way, then it’s possible to do the same thing with the 39th Congress (or the 42nd).

    I think we need an extremely powerful showing to support a claim that the historical record cannot establish what particular language means. That said, I think an assessment of the referent of constitutional language generally depends on factual determinations about which the framers could be ignorant, or even wrong. See here.

  9. frank cross says:

    I would add that the issue is not whether the historical record cannot establish meaning. It is whether it will not. Hercules isn’t walking through that door. The historical record will be assessed by justices (and researchers) with their own preferences. Is there any reason to think that they will get it right in an unbiased way. When Calabresi and Barnett disagree so much on original meaning, is there any reason to think it will be determined with any objectivity?

  10. Chris says:

    “Hercules isn’t walking through that door.” That’s a reason to spend more time working to put better historical material before judges, not a reason to give up the effort as hopeless. As I see it, the legal academy ought to be working to make the judiciary more Herculean.

  11. anon says:

    Its not so much that we can’t divine what particular language meant in the late 18th century, but that the most controversial issues of political morality and the proper role of the federal government were as contested then as they are now. In that sense, there often isn’t an answer, historically speaking, to the sorts of questions that get litigated. As Merrill Jensen has written in The New Nation: A History of the United States During the Confederation, 1781-1787,

    “Since the founding fathers themselves disagreed as to the nature of the history of the period and as to the best kind of government for a new nation, it is possible to find arguments to support almost any interpretation one chooses. It is not surprising therefore that conflicting interpretations have filled thousands of pages and that all this effort has never produced any final answers and probably never will, for men have ever interpreted [the Constitution] in terms of their hopes, interests, and beliefs rather than in terms of knowable facts. . . . When the Constitution was submitted to the public in October 1787 the controversy rose to new heights. Men talked in public meetings and wrote private letters and public essays in an effort to explain, justify, or denounce what the Convention had done. . . . Some said there would be chaos without the new Constitution; others said that there would be chaos if it were adopted. . . . The two basic interpretations may be simply stated. Jefferson held that the central government was sharply limited by the letter of the Constitution; that in effect the states retained their sovereign powers except where they were specifically delegated. Hamilton argued in effect that the central government was a national government which could not be restrained by a strict interpretation of the Constitution or by ideas of state sovereignty.”

  12. Chris says:

    “[T]here often isn’t an answer, historically speaking, to the sorts of questions that get litigated.”

    I don’t think we can say this confidently unless we’ve dug through the evidence ourselves. It will also depend on the issue, of course. Above I linked to my two papers offering an answer to the basic interpretive question about the Equal Protection Clause, and explaining why that answer would be relevant to lots of litigation today. Having looked at the details on that issue, there are some bits of evidence that considered in isolation favor the traditional view, but I think that they are swamped by evidence in favor of a duty-to-protect view. Similarly, I don’t think we can infer just from the fact that Hamilton and Jefferson disagreed that neither of them had a better argument on the basis of the constitutional text. The existence of reasonably strong arguments on both sides isn’t the same as evidentiary equipoise.

  13. MichaelN says:

    As regards USC Article II “natural born Citizen”….

    Consideration for eligibility for the office of POTUS was only afforded to persons who were already native-born “citizens of the United States”.

    Since the SCOTUS opinion in the Wong Kim Ark case (a “single question” on the application of the 14th Amendment), it has since been commonly held that native-birth in US and some degree of allegiance on the part of the native-born child’s parents (i.e. “subject to the jurisdiction thereof”) grants a person the status of “citizen of the United States”, NOT “natural born Citizen” (see the final summary of the “Opinion of the Court” in the Wong Kim Ark case, here http://www.law.cornell.edu/supremecourt/text/169/649#writing-USSC_CR_0169_0649_ZO )

    Since consideration for the office of POTUS only applies to those who (as a prerequisite to being considered at all) are already native-born “citizens of the United States”, and since Article II of the USC makes a clear distinction between a “citizen of the United States” and a “natural born Citizen”, clearly recognizing differing degree of allegiance to the US, then …….

    the question is,

    what measure of allegiance must be taken into consideration which would result in some native-born “citizens of the United States”, being of a higher or more complete allegiance, and be recognized as “citizens of the United States” who are also “natural born Citizens”, where other native-born “citizens of the United States” may not be also “natural born Citizens”?

    Nowhere in English common law (i.e. benchmark English case, Calvin’s case, cited to by the SCOTUS in the Wong Kim Ark case) nor American law was it ever held that native-birth alone sufficed to make a subject/citizen, let alone a “natural born Citizen”/subject.

    Parental allegiance has always been the deciding factor.

    Sir Edward Coke per Calvin’s case….

    “And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born:”

    http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106337&layout=html&Itemid=27

    Allegiance of the parents has always been the deciding essential factor in determining basic subject/citizen eligibility and it become clear that in the US parental allegiance is the deciding factor when it come to determining eligibility of a citizen for the office of POTUS.

    With this in mind, we may get a clear picture by weighing the allegiance of parents as follows….

    To be recognized or granted US citizenship (not to be confused with eligibility for POTUS)……

    native-born in US to alien parents with some measure of incomplete, dubious, weak allegiance = native-born “citizen of the United States”

    native-born in US to US citizen parents with complete and certain allegiance = native-born “citizen of the United States”

    Now, eligibility for the office of POTUS… (aside from the residency and age criteria)

    First, as a prerequisite, one must be a native-born (not naturalized) “citizen of the United States”

    Second, one must have a higher allegiance than other “citizens of the United States”

    Which native-born “citizen of the United States” has the higher allegiance?

    The one with alien parents of weak, uncertain, dubious, incomplete allegiance?

    Or the one with US citizen parents of certain and complete allegiance?

    Now you can easily deduce what makes an Article II “natural born Citizen”

    Go here and get informed.

    http://puzo1.blogspot.com/

  14. MichaelN says:

    ping