How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on such questions in our own time, despite the best efforts of armies of pollsters.  And even if we did know what 18th century Americans were thinking, how would that tell us how to decide questions faced by 21st century Americans?  So much has changed since then, so does it even matter what the Constitution originally meant?

Those are tough questions, but they’re not what is confusing about Originalism.  What’s confusing is that most people don’t understand whose understanding we care about in fixing the meaning of the Constitution.  The people responsible for drafting the document?  The delegates who actually ratified it?  Or the American people in whose name they drafted and ratified?

I submit that confusion about this preliminary who question makes one more likely to conclude that the other problems—determining and applying the original meaning—are just too difficult and thus the Originalist project not worthwhile.  On the other hand, once we get the right answer to the who question, I submit that the importance of the Originalist project becomes clearer.  And while determining and applying original meaning is still difficult, it is central to the American experiment in self-government that we try.

The who question is easy to get wrong because we so often defer to founders like James Madison who drafted the Constitution.  It is natural to assume that the words meant what its writers intended.  But thinking a little deeper, it should be clear this is incorrect.  It was widely understood—including by Madison, by the way—that the American people were sovereign.  Though Madison and the other framers wordsmithed the Constitution, they did so on the sovereign people’s behalf.  This is also what happens when lawyers draft a contract on behalf of their clients.  The lawyer’s meaning doesn’t count—only the parties.  Why?  Because the document concerns the rights and obligations of the parties, not the lawyers.  The lawyers are just their scribes.

In the same way, it is the people’s understanding that controls the meaning of the Constitution, because the Constitution is authorized by the people’s authority and concerns the people’s rights.  The framers were just their scribes.

This, by the way, is the brand of Originalism known as original public meaning.  When I refer to Originalism, I mean specifically original public meaning, which I take to be the only correct variant.

Before asking your further indulgence in this exercise, let me briefly put Originalism in context with that other famous approach to constitutional law, Living Constitutionalism.  Originalism presumes a fixed meaning in the Constitution.  Living Constitutionalism, on the other hand, rejects the presumption that a fixed meaning exists or controls, and instead holds that its words take on new and different meanings to adapt to modern contexts and facilitate human progress.

In this contest, Originalism’s distinct advantage is this:  If the Constitution fails to reflect the meaning of the American people in whose name it was written, negotiated, and ratified, then the Constitution is no longer an act of self-government.  You would not expect to be bound by such a constitution any more than you would expect to be bound by a clever lawyer’s contractual interpretation that you never reasonably could have imagined.  In other words, self-government absolutely depends on presuming a fixed meaning in the Constitution in order to give effect to the people’s will.

Let’s assume for now that you’re with me on Originalism.  We still have to grapple with the “how do we know their meaning” and “how do we apply it” questions.  But since at this point you’ve signed on to my theory, you can’t simply call these questions too difficult and Originalism doomed.  You’d be admitting the defeat of self-government.  You’re not admitting that, are you?

Besides, it doesn’t make any sense to conclude that difficulty in determining or applying the Constitution’s original public meaning suggests the exercise is somehow unimportant.  When has difficulty ever undermined importance?  Quite the opposite.  Ending slavery was both extremely difficult and extremely important.  So was D-Day.  So were Civil Rights.  Nothing was ever drained of its importance by difficulty.

So the Constitution’s original public meaning does not become unimportant just because it is difficult to ascertain its precise meaning or apply it to contemporary problems.  But if we can’t determine or apply its meaning, then isn’t the self-government project doomed just as if we rejected Originalism outright?

To this, I respond that determining and applying Originalism does not require that we know with precision or certainty how 18th century Americans would have voted on specific legislation.   We don’t even know today how a vote on anything is going to come out until it actually happens.  But the 18th century was not a dark age, and there is much evidence of the mood of Americans as to a great number of important subjects that informed their understanding of the Constitution.

Take the National Day of Prayer, about which Mr. Likko recently wrote.  True, we cannot tell how a vote on such an act would have come out in 1791 when the original public meaning of “establishment of religion” presumably was never fresher in mind.  But we do have an understanding of how Americans generally understood the role of religion and government.  For example, the Constitution of Massachusetts in 1780 provided that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion and morality.”  The Northwest Ordinance of 1789 provided that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”  And if the views of John Adams can be said to harmonize with the public’s, “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.”  We should at least be skeptical, then, at suggestions that the Constitution requires that we approach or resolve a question today in a manner that probably would have seemed very odd then.

In other words, approaching a question like a national day or prayer with considerations about whether it falls within Congress’s enumerated powers, whether it violates its role vis-à-vis the states, freedom of conscience, etc., seems to be in line with concerns felt by 18th century Americans.  Approaching it with considerations about categorically keeping anything smacking of religion out of government, on the other hand, is probably pouring new wine into old skins.

But again, certainty and precision are not the touchstone.  In our attempt to glean the original public meaning of a constitution, we are looking at how the people understood the structure of government and the role of man, society, and government. Beyond that, Originalism does not require or suggest that we precisely determine or apply 18th century Americans’ reaction to specific policy proposals.

Instead, what Originalism requires is that we at least pay homage to why the Constitution mattered, what it set out to do—indeed, why it exists at all.  I see much room for discussion in how we answer such questions.  But I find misguided Originalism’s detractors who object that those things are unimportant, that we have better things to do than worry about what the people intended by ratifying the Constitution; better things such as finding new meanings for those words.  Justice Sutherland once wrote that “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”

The good justice was right. The people are no longer sovereign if we cease to interpret their laws.   To reject the original public meaning is to remove the people from the seat of sovereign power and install Webster in their place.

[Cross-posted at Dutch Courage]

[Updated to correct an error pointed out by Mr. Corneille.]

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169 thoughts on “How do you interpret a constitution?

  1. I could go into a variety of little quibbles, but most of those would just be rehashing all those things we fundamentally disagree on, so instead I’ll just say that this was really, really excellent.

    Even if not convincing (for me, a hard case), this is the most compelling picture drawn of originalism I’v e seen in a long, long time.

    Seriously: outstanding.

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  2. This is a very cogent defense of Originalism.

    The next question I might ask, however, is this: even given that I accept the framework for the most part, let me rework this paragraph for you:

    If the Constitution fails to reflect the meaning of the American people in whose name it was written, negotiated, and ratified, then the Constitution is no longer an act of self-government. You would not expect to be bound by such a constitution any more than you would expect to be bound by a clever lawyer’s contractual interpretation that you never reasonably could have imagined.

    To

    If the Constitution reflected the meaning of the American people in whose name it was written, negotiated, and ratified… and it currently, now, reflects the meaning of the American people in whose name it currently establishes legitimacy for the government…

    … why does it matter if our current understanding is not the same as those in the past? Are we not suitably represented in our ideals now?

    If the founders wished “cruel and unusual punishment”, for example, to be explicitly fixed to represent what was regarded as “cruel and unusual punishment” at the time… why use the terms at all? Why not just enumerate the punishments that they regarded as cruel and unusual?

    And if they chose *not* to enumerate those punishments, why should we assume that the explicit meaning of the phrase was intended to be grounded in June 21, 1788?

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    • Let me start with what seems to be the easier of two hard questions:

      “And if they chose *not* to enumerate those punishments, why should we assume that the explicit meaning of the phrase was intended to be grounded in June 21, 1788?”

      Because we must assume that they intended it to mean something fixed — otherwise, why enact it at all? That is, if they wrote “yellow and triangle punishments shall not be inflicted” it would have no less effect. We can empty out the meaning of those words just as well as “cruel and unusual.”

      Putting aside cute responses like that one, the way I’d really respond is again with the approach to punishments. Bearing in mind my lack of expertise as a founding era historian, what I suspect we’d find is that Americans intended to outlaw punishment that fed sadistic appetites. My sense is that modern visions of justice that conclude the death penalty, for example, is cruel and unusual adopt a different view of morality than many Americans during the founding.

      Sorry I can’t offer the longer response this comment deserves. I’ll try to pick it up later.

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      • Because we must assume that they intended it to mean something fixed

        To be clear, they certainly may have intended it to mean something fixed. But we don’t have to assume that, because presumably a good number of them had studied history, being educated men and all, and they all were certainly aware that there was a difference between what Aristotle meant by the political life and the nature of man and what Locke meant by the political life and the nature of man. They knew Hume rejected innate ideas (Franklin, I’m given to understand, was a fan of David Hume). So they were certainly aware of the idea that there were diverse philosophical and political frameworks and the imprecision of language.

        So certainly they may have intended for it to have an implicit meaning in 1780, and an implicit meaning in 1850, and yet another implicit meaning in 1912, with all of those meanings being accepted as correct by the body politic at the time, without explicit law giving provenance to the changes in meaning.

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        • Patrick,

          Here’s my view: The people enacted constitutional provisions because they understood them to mean something. What was that something? Depending on the provision, sometimes we can know pretty clearly, sometimes not clearly at all, and sometimes somewhere in between. But in addition to understanding them to mean something, they also understood them to mean something. That is, whatever the “something” is, it had to be within their ken, it had to be predictable, ascertainable, meaningful to them.

          That’s what I mean when I ask the rhetorical “why enact it at all?” Because if the words are taken to mean something entirely outside the potential understanding of those who enacted it, then they might as well not be English words at all, and they might as well not have enacted them at all. It was a futile, worthless act at best. At worst, it’s a launching off point for those who would assume power to themselves by making use of words in the constitution that, while philosophically meaningless for the reasons I’ve urged, nonetheless hold psychological power over the people who don’t realize their philosophical meaninglessness.

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          • Because if the words are taken to mean something entirely outside the potential understanding of those who enacted it… It was a futile, worthless act at best.

            This strikes me as an all-or-nothing approach. Surely if we take one or two words to mean something entirely outside the potential understanding of the authors, the effort as a whole was not futile, was it?

            And if we don’t read them that way that until many many years later, then their effort still wasn’t futile, was it, given that it worked for their time and for many years afterword?

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            • There’s futile and worthless, and then there is “good enough to get a job done”.

              Banning cruel and unusual punishment on paper hasn’t stopped us from using cruel and unusual punishment probably since day 1. That doesn’t mean it hasn’t stopped us from many incidents of cruel and unusual punishment that we would have had otherwise.

              I mean, a framer – regardless of how they felt about slavery – certainly wouldn’t have regarded flogging somebody as unusual, and only would have regarded flogging as “cruel” if it were employed indiscriminately. There were certainly crimes that merited flogging in the minds of nearly all of the framers, I’d guess. For some of them, there might have been significant distaste about the subject and for others, maybe they’d flog just about anybody, but the advantage of framing punishment bans on “cruel and unusual” types of punishment is that we don’t need to get everybody on board with enumerating instances.

              We get everybody to agree that cruel and unusual sounds bad, and then we go around the maypole for a few hundred years arguing about what constitutes cruel and unusual, and most years that will come down with more things winding up on the wrong side of cruel and unusual than on the other.

              I’m not sure I’d call that a futile or worthless outcome. It’s certainly *not* optimal.

              But I’m not sure optimal is something we can shoot for. Least crappy is probably workable, though.

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              • Very well said. This is what I like about Barnett’s approach to originalism, the idea of focusing on their goals, and using our growing (or at least changing) understanding of certain things (like cruel and unusual punishment, or equal protection of the law, or due process, or freedom of the press) to interpret the Constitution in a way that helps to pursue those goals. (If our goals change, then obviously it gets fuzzier.)

                But too much of originalist thought seems–to me, anyway–to rest in a kind of scripturization of the Constitution, treating it as, if not the actual word of God, as some uniquely exalted, almost sacred, document crafted by men of unique and unequaled wisdom. I think that’s a romantic view, and worse, something of an inhuman view.

                Oddly enough, the view at the time seemed to be more of a “good enough to get the job done” approach. Certainly the document was reviled in certain quarters (we don’t read the anti-federalist papers enough these days), Franklin supposedly said they’d managed to create a republic, “if we can keep it,” from which it’s unclear if his doubts were about the people, the document, or both. Washington thought it would last about a generation. And Hamilton was highly dissatisfied, but realized it was better than the status quo and as good as he was likely to get.

                To be sure, it’s managed to hold up, albeit with some severe challenges, so it would be unfair to say that they didn’t do a pretty good job. But it’s arguably the case that a part of the reason it’s held up is the ability to reinterpret it without having to undertake the arduous amendment process. I wouldn’t ask someone like Tim to be comfortable with that, and truth be told I’m not really comfortable with that either. But it may be true nonetheless. And then folks like us have to ask ourselves, “what are we more uncomfortable with, a constitution whose meaning changes as a bare majority of 9 follows the election returns, or a constitution that gets chucked because it’s too rigid?” I’m not happy with either outcome.

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                • I think the “spirit not the letter” approach is at least more honest.

                  The thing is, when people do Constitutional analysis, originalist, textualist, or something else, they always seem to end up right where they wanted to end up. This, I imagine, is more directly related to our ideas about what the founders were aiming at than it does with any analysis of the meanings of the text and supporting texts.

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                  • The thing is, when people do Constitutional analysis, originalist, textualist, or something else, they always seem to end up right where they wanted to end up.

                    I’d say this: if you can take three different approaches to Constitutional analysis and always wind up where you wanted to be, the problem isn’t the approaches, per se.

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              • Patrick, this

                We get everybody to agree that cruel and unusual sounds bad, and then we go around the maypole for a few hundred years arguing about what constitutes cruel and unusual, and most years that will come down with more things winding up on the wrong side of cruel and unusual than on the other.

                I’m not sure I’d call that a futile or worthless outcome. It’s certainly *not* optimal.

                But I’m not sure optimal is something we can shoot for. Least crappy is probably workable, though.

                is one of the most amazing comments I think I’ve ever read. I’ve written two full responses to it and begun a third and remain unable to hit “submit”. So I’ll just let the content of my comment remain what it is so far: flabbergastration that you could actually write it.

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                • Maybe give one more try to trying to put something into words? Because, while I may not agree with the approach fully, it seems like a pretty reasonable and valid one nonetheless; in any case I’m not at all flabbergasted.

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                  • Well, for starters, Patrick said “We get everybody to agree that cruel and unusual sounds bad,”. Who’s the “we”? Who’s the “everybody”? More to the point, tho, is that the phrase “cruel and unusual punishment” isn’t intended to require any propagandistic accompaniments in order to get people to concede that it’s bad. The “badness” is a constitutive part of the presentation.

                    On a different level, what Patrick wrote sounds to me like a form of apologetics for punishments that might (or might not!) go over the line wrt an established standard of cruelty or unusuality. But that strikes me as a bizarre way to look at punishment. The safe, prudent, rational perspective seems to me to be one in which the default position is that all punishment requires meeting a substantial burden. Cruel and unusual ones requires meeting a standard far above that of ordinary (whatever that means!) punishment.

                    So the comment seems to trivialize a very serious issue by playing politics and propaganda with it.

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                    • That’s not what I got from it. Rather, I read him to be describing the way this sort of thing actually works, which is to say that a set of concepts, perhaps produced with certain examples or even a more or less principled idea of what they might allow and exclude, are produced and thrown into the social and political sphere, at which point a process of ebbing and flowing consensus refines or even redefines entirely the denotation of the concepts. Viewed through the lens of history, some of these ebbs and flows will look extreme to us, or unjust, or immoral, or downright cruel, while others will look like progress.

                      I think this is actually how morality works, and to the extent that it is “objective,” that is, to the extent that exists outside of any one subject, this is how it is so. Some of the earlier comments in this thread treat morality very similarly to the Platonists, only for them it doesn’t enter our minds from the realm of the Ideas, but from the realm of Natural Selection, perhaps in the form of intuitions or moral emotions. I think this leaves out an important determiner of our thinking and behavior, one that, to be sure, “evolved,” but which then helps to guide evolution both biologically and culturally: language.

                      Undoubtedly we have certain innate intuitions, but how they are represented, their level of abstraction, is I think the key issue. In recent years, in the field of moral psychology, there’s been a sort of Chomskyan turn (hence the Platonism), with several psychologists and philosophers believing that we have an innate moral grammar upon which our more concrete ethical intuitions are built. But I think that if these theorists considered the direction that generative grammar has taken in the last 30 or so years, they’d find that this ultimately raises more questions than it answers. Within linguistics, the models of the basic building blocks of language include more and more abstract entities (there’s an old half joke that for the Chomskyan, language eventually becomes just x-bar and change). It’s likely that, whatever innate building blocks we have for morality, with the exceptions of perhaps some basic emotional components (e.g., reciprocity and guilt), and some basic cognitive abilities (e.g., counterfactual reasoning, which is important for our ability to assign blame). Whatever those basic computational elements are, unrecognizable to anyone as of yet as anything morality-like (we don’t have even a hint of a semblance of the beginning of a start to a computational model of morality comparable to those of language produced over the 60 years history of generative grammar), they are going to be highly culturally and, more directly, semantically malleable, so that our language, our cultural and epistemic space (as Chalmers calls it), do the bulk of the work in determining how those basic elements manifest in thought and behavior.

                      This is, of course, why propaganda works, and why ethics evolve a fair amount over time, and why ultimately the production of specific moral ideas and intuitions is a discursive process, one of consensus building. In today’s western liberal societies we talk about murder in an expansive way that Europeans of 500 or 1000 years ago wouldn’t have understood at all. Human life was not, even within the Christian tradition, always sacred or inherently valuable. Killing was OK for a lot of reasons that, today, we would consider completely out of bounds (too far out of bounds to even think of). If it is in fact the case that we have an innate moral grammar, the same moral grammar produced these two different standards, as well as the standards that allowed slavery, raping and pillaging the vanquished, and all manner of other things we consider horrible (and still does in some parts of the world), often in the name of a moral superiority.

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                    • More to the point, tho, is that the phrase “cruel and unusual punishment” isn’t intended to require any propagandistic accompaniments in order to get people to concede that it’s bad.

                      Propagandistic? Ah, I think I see… wow, this is a way of reading the comment I didn’t anticipate. No, essentially what I’m saying is that it’s perfectly reasonable to pass a bit of legislation based upon common-sense terms with the *presupposition* that fifty years from now people will have a different interpretation of those common-sense terms… and that’s possibly a workable approach.

                      On a different level, what Patrick wrote sounds to me like a form of apologetics for punishments that might (or might not!) go over the line wrt an established standard of cruelty or unusuality.

                      The argument could certainly be used that way, sure, but you’ve got heavy lifting to do on that score. I mean, if the default understanding of “cruel and unusual” is “whatever we currently think is cruel and unusual”, then the burden is properly on you to show that it’s neither currently regarded as cruel or unusual (granted, that’s not historically how it turned out, and also granted, under that system of assigning possible sentences, we’d have an entirely different penalty phase to certain types of trials).

                      But that strikes me as a bizarre way to look at punishment. The safe, prudent, rational perspective seems to me to be one in which the default position is that all punishment requires meeting a substantial burden.

                      It strikes me as how the legal system has looked at punishment, historically. I’m not sure it’s bizarre; I think it’s kind of predictable in hindsight, really. To be clear: I agree with you that the rational, safe, and prudent course is to enumerate what is allowable and under what circumstances, but this presupposes that you can predict all the exigent circumstances. So what happens when someone does something you didn’t predict?

                      So the comment seems to trivialize a very serious issue by playing politics and propaganda with it.

                      I’m pretty sure that our system of punishment is entirely embedded in politics… like, up past its eyeballs… from the system of policing we have to the way we determine what constitutes criminal behavior to what we allow the government to prosecute and so on… so I’m not sure how pointing this out is trivializing it.

                      I think some people would be mildly perturbed, sure.

                      On the other hand, this, I would think, drives you to the originalist position, not the living constitutionalist. If you’re perturbed, that is.

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                    • Don’t assume that just because I’m talking about how I think the thing has worked that I’m endorsing it as a methodology.

                      On the other hand, it’s not necessarily an unworkable methodology, was my point. Sure, it has drawbacks. But so does attempting to use very specific language, too.

                      Here, an example:

                      “You bundled up mortgages, knowing that each individual one of them was risky, and then put them through a mathematical risk distribution formula and out the other end came financial instruments that you said were not risky, right?”

                      “Yes, because our model showed that it wasn’t risky.”

                      “But it was. How is this not fraud?”

                      “Because our model said it wasn’t. How can we be charged with fraud when our model said the product wasn’t risky?”

                      “Uh, because (a) it *was* risky and (b) you wrote the model that said it wasn’t?”

                      “There’s no fraud statute against that! No regulator ever said that this was an illegal way to sell mortgage-backed securities!”

                      Now, sure, if you don’t have very specific fraud laws, you can get away with *other* types of gaming the system, too. But very specific crime and punishment laws are just as susceptible to being gamed by those mechanisms, as well.

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      • While you’re at it . . .

        I came upon a SCOTUS case dealing with judicial immunity, which had a rather lengthy explanation of the various courts of the King’s Bench, and how Coke sought to bring them all under the common law. (I’ll link if I can find it again)
        What I’m getting around to here is that “cruel and unusual” seem to be the scienter requirements that we know today as “malicious” and “sadistic.”
        However, both judicial immunity & prosecutorial immunity (and witness immunity) exempts those most likely (with the exception of the police) in enacting malicious or sadistic punishments.
        Further, state actions are barred from review by all but the SCOTUS by the Rooker-Feldman doctrine.

        Ergo, Fourth Amendment rights are very limited (on a practical level); and the rights secured offer no manner of accountability for the wrong-doer.
        Also, mandamus was done away with at the federal level by the Federal Rules in 1938.

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      • Because we must assume that they intended it to mean something fixed— otherwise, why enact it at all?

        I don’t see the second clause as a sound argument for the first clause. I’ve written rules–organizational constitutions and academic policies–and I take it as a simple fact that whatever I intend the rules to mean, future people will interpret them in ways I did not intend, and may not even be able to anticipate. So I try to write them–as best I can in a process that includes other people–to be relatively constraining, to be more likely than not to be interpreted in ways that lead away from outcomes I don’t want to occur. And I know, even then, that my ingenuity is no match for the determined ingenuity of a large number of future interpreters, so that I have no guarantees.

        So by the logic of the quote, have no reason to participate in these activities. Believing that the rules I help create, even when interpreted differently than I and my co-authors intend, are likely to create better outcomes than the current rules is apparently not enough?

        I wonder if perhaps you are interpreting their constitution writing as being primarily forward-thinking, big-idea focused, when it was actually an exercise in trying to solve an immediate problem more than anything else. There was no claim to have created some kind of ideal system, but a claim tht it was a significant improvement on the status quo.

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        • Subjective and objective intent/meaning is an important distinction here. In your view, do those who interpret the rules deviate from your subjective meaning only? Or do the words you chose reasonably extend to the application they’ve chosen? This distinction is important for the 14th Amendment. It might be argued that Equal Protection was only “intended” to apply to blacks, and not other minorities. But that possible subjective meaning was not made clear in the words of the 14th Amendment. The original public meaning implies an objective, reasonable person standard. The Equal Protection clause, for example, thus applies beyond just black people and guarantees equal protection of the laws to all Americans.

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      • Because we must assume that they intended it to mean something fixed — otherwise, why enact it at all?

        I think this is correct. I also think it doesn’t resolve the issue under discussion.

        You’re suggestion appears to be that the words employed at the time of ratification had fixed meanings and it’s in virtue of that “fixed-ness” that the provision was enacted. But fixed in what sense? It seems to me you’re arguing that speakers of English in those days used the phrase “cruel and unusual punishment” to refer to a complete list of all and only cruel and unusual punishments, but also – and this is the point – that everyone implicitly agreed with that comprehensive list.

        Personally, I don’t think language works that way. It seems to me what they meant by the phrase “cruel and unusual punishment” was a (potentially) determinate list of necessary and sufficient conditions which define that phrase, and that actions which meet those (presumably) identifiable criteria are unconstitutional. And if that’s the case, then the set of actions which constitute C&UP isn’t – and can’t be – fixed.

        That criticism aside, I think you’re right in viewing Originalism from this angle. It seems to me that the main substantive claim argued by originalists is that the meanings of terms and the intentions of the Framers was fixed. That’s a metaphysical concept, in a way. The dispute – or part of the dispute, anyway – is over determining what those fixed meanings in fact are. I think that’s a difficult task, myself. So even if it’s the case that the meanings of terms actually are fixed the question of interpretation remains open.

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        • I think Originalism also misses out on the fact that the Constitution itself arose through a process of bitter, partisan politics and that the Bill of Rights was basically a bribe to pass the thing in the first place, a sop to a particular group.

          Pick three Founders and you’ll probably have at least two different — especially at the edges — view of any given aspect of the Constitution, which makes Originalism just flat-out moot.

          The Constitution was written and voted for by individuals, each of whom had their own understanding and goals, and I’d put money on the fact that a lot of the vague rhetoric we struggle with was written vaguely simply to pass, because specifics wouldn’t have.

          It’s nice to know what Madison thought — or at least what rhetoric he used when arguing in print — but what about the rest of them?

          You just can’t treat the Constitution as akin to the Word of God, with a specific, universal meaning handed down from on high. It’s not. It is and was a political document, a compromise between factions, written vaguely — either because of an eye towards the future or an eye towards the current politics or an eye towards the vote count.

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          • You just can’t treat the Constitution as akin to the Word of God, with a specific, universal meaning handed down from on high.

            To the contrary, you, or we, can, and, much more important, must and do “treat the Constitution as akin to the Word of God.” That is the story of the replacement of the divine and then the monarchical sovereign with the “popular sovereign” or the People, or the founding of the American civic religion. When we truly no longer treat the Constitution as a divine or quasi-divine excrescence, interpreted for citizen-believers by the oracular Supreme Court, defended by supreme sacrifice, object of sacred oaths, and so on, then we will be under some other system or under no system at all.

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            • Either you missed the point or ignored it.

              The Constitution isn’t divine writ, with a single inspiration and guiding hand behind it. It’s a vaguely worded document that was the end product of a large number of authors, working at occasional cross purposes, then sold through rhetoric to a population.

              It is indeed the highest binding law of the land.

              But you cannot look at it and divine some perfect truth from it. There is not “What the Founding Father’s meant” — because they meant myriad different things, and ended up with a lot of vagueness to cover it up. There is only the words on paper, subject to interpretation.

              And wars have been fought over the correct interpretation of the Bible, wars by sides who both viewed it as inerrant writ by a single author.

              The Constitution — binding as it is — is still words on paper. It will always be read by people colored by their culture, their current culture. They might obfuscate it by cherrypicking a given rhetorical nugget of the past, but they’re doing the same thing living Constitutionalists do. They’re reading the vague language, and fitting the specific problem into a context of culture and precedent.

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              • Didn’t miss the point at all, or didn’t in my opinion. Nothing you say about the manifold contingency of the writing and ratification of the Constitution interferes in the least with a conception of its divinity or holiness or qualified divinity/holiness or as-sacred-as-anything status as font of all sacredness and sacrifice. The Popular Sovereign works in mysterious ways, and the writ is true, or divine, because we believe (in) it, as much as the other way around. We find out what the Founding Fathers meant, sometimes without their recognizing they meant it, when the Oracle on First Street reveals what they meant or meant to mean or would have when the Spirit was with them, and forever after or until the next pronouncement that’s what they always meant to mean, and, if you don’t like it… I think you know the rest. As for adaptation to new contexts, that’s part of the quasi-divine plan, too, and it’s where I part company with Mr Kowal, since under my theory of meanings there can be no “fixed” ones. Every today’s resultant is a resultant of multiple vectors including the vector of Originalism as understood by Originalists, though this goes for any word or concept. Most of the time, it’s not really a matter of meaningful dispute, since there’s no great constituency for radically curtailing freedom of the press or establishing Anglicanism or selecting Senators by national lottery instead of by the crappy and unfair holy process we have. Some matters seem more vexing, or not susceptible to consensual solution. So we live with the imperfections, and will continue doing so until we don’t anymore, and accept the only final solution of dissolution.

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                • since under my theory of meanings there can be no “fixed” ones. Every today’s resultant is a resultant of multiple vectors including the vector of Originalism as understood by Originalists,

                  But if one of the vectors is the Originalist’s meaning of a term, then why can’t they assert – even argue! – that that’s the one that matters? Which is what they’re doing and want to do. But on a more philosophical level, it’s something they are justified in doing, yes?

                  Personally speaking, I find nothing objectionable with that practice. My reluctance in accepting it is that there’s no definitive way to determine what that specific meaning-vector actually is.

                  And even that’s not quite right. It’s that there is no definitive way to determine a unique meaning-vector shared by all the individuals involved in the ratification process. I just don’t think that can be done without begging questions.

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                  • Btw (and Chris will understand what I mean!) have you read any of the Analytic work on natural kind terms? The prevailing view is that the meaning of those terms is actually fixed. Lots of compelling arguments on that front, actually.

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                    • Haven’t delved into that question, though it’s my impression that the work is more on a peculiar class of (possible) terms rather than on linguistic morphology, or actual systems of signs. So when I referred loosely – yes, I confess, loosely – to “my theory of meanings,” I was thinking of signification and context, “the definition of a word is another word” and the gap between description and described, not those Quinean matters. From what I’ve gleaned from the discussion, for instance in that long comment of Chris’s on the question of a “natural morality” or a morality or moral tendencies or capacities inherent in the biological organism, is that they’re looking for love in all the wrong places – beings on the level of “mere being” rather than the being of beings – because that’s what bourgeois science is all about.

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                  • I think we’d have to distinguish between a pure inceptionary Originalism, holding the Originalist “vector” to be the sole determinative vector regarding the Constitution and its amendments, and a realist or concrete or plural or self-revising Originalism, acknowledging the pure inceptionary Originalism as a moment, but not the only moment or even the only originalist moment, in other words understanding constitutional governance as a system at all times, even at any theoretical inceptionary point. Under both views,”original public meaning,” as I understand the concept, would be a “reasonable person” standard, and, as such, would always return us to particular cases and preponderances of evidence or sheer political power, since the degree of reasonable lexical exactitude available on any particular matter as it actually arises will inherently vary. Their very existence indicates the lack of an adequate general rule, and presuming to know ahead of time what they require of us or of the system as a whole will tend to presume a general rule of exceptions to general rules.

                    So sometimes there obviously is a for all intents and purposes “definitive way to determine a unique meaning-vector shared by all… involved” and comprehensible to anyone mentally competent and citizenship-capable then as well as now: “Two Senators” means neither one nor three of an officeholder called “Senator,” the seven letter make up a word, and the word is the same word regardless of where it appears in the document, etc. Every case where such exactitude is lacking contains within it the seeds of a crisis of the state, because it points to problems in the concept of the state, whose actual practical-political or concrete force or authority is crucially a product of its asserted ideal perfection – its status as a government of laws, which are impartial and exact, “not men,” who are neither. So every decision to supply a deficit in original exactitude with interpretation reminds us of contingencies always submitted to politics, and angers those who believe they have been lied to, or those who happen to be on the losing side and must endure the further indignity of seeing the views of their adversaries being quasi-eternalized, put in theory beyond politics by politics. Since the formal political-juridical system is not the whole system or the system of the whole, it is well-defensed against or has many ways of dealing with the multiplication of fuming losers and disillusioned idealists.

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          • I’d put money on the fact that a lot of the vague rhetoric we struggle with was written vaguely simply to pass, because specifics wouldn’t have.

            Like legislation still is often written. It’s easy to get agreement that we should have clean water, but much harder to get agreement that the standard for pollutant #39178 should be a maximum of .002 microns for cubic liter of liquid effluent. So that kind of rule gets chucked down to the EPA, so elected officials can wail and gnash their teeth to the complete satisfaction of their constituents.

            I’m reminded of when the FDA tried to ban saccharine (at the time the only artificial sweetner widely available), because lab tests showed it caused cancer in rats. The dieting public went nuts, so their representatives went nuts. The FDA said, “the wording of the law is clear, any food additive found to be carcinogenic is to be banned,” to which the elected officials responded, “but we didn’t mean for you to do this.” Apparently banning saccharine wasn’t Congress’s original intent.

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          • I think Originalism also misses out on the fact that the Constitution itself arose through a process of bitter, partisan politics

            That’s nice. Is the verbiage prescribing elections every two years thus subject to creative interpretation?

            and that the Bill of Rights was basically a bribe to pass the thing in the first place, a sop to a particular group.

            Is it your conception that renders it more compelling or less?

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            • It’s amazing how specific the Constitution is in places — and yet in others, vague rhetoric.

              Elections every two years — but no “cruel or unusual punishment”. Full stop.

              Picking apart the places where the Founders went for vague and trying to form a functioning government out of it started with Marbury v Madison. Now you can be sarcastic and deliberately miss the point all you want, doesn’t change the fact that during the Founder’s own lifetime the Supreme Court carved itself out a nice little role that the Founding Father’s had not explicitly spelled out — but neither did they object.

              You can spend weeks just poking at the Commerce Clause (another vague one) — or the First Amendment, or anyplace two or more rights conflict.

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    • One more point on the 8th Amendment. I’m no authority on it, but it seems to me of the same nature as habeas corpus. Re habeas, I share Hadley Arkes’ view (as far as I understand it) that it is compelled by natural reasoning (we can have no meaningful understanding of what “law” or “due process of law” is without it) and that its textual guarantee is basically surplusage. Similarly, I think there’s an argument that, even without the 8th, natural reasoning prohibits “cruel and unusual punishment” as out of line with the very nature of justice and punishment. (If I recall correctly, “cruel and unusual” was a term of art, and didn’t strictly prohibit punishments that were “unusual” — otherwise, many concepts under the modern trend of Restorative Justice (e.g., having the perp apologize) might be considered unconstitutional.)

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  3. “Beyond that, Originalism does not require or suggest that we precisely determine or apply 18th century Americans’ reaction to specific policy proposals.”
    But isn’t that what most proponents of Originalsim do and why it becomes contentious today? They suggest we govern now based on their Originalist interpretation of the the Big C.

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    • Ya know, I was thinking about this the other day. . .
      I believe that most people vote for a candidate based on positions, and more on hot-button issues. Supposedly, such things can “define” a candidate.
      But I think this approach is wrong.
      I think it’s more important to be able to have a fairly good idea of how a candidate might vote on something that just came up, something that’s not a hot-button issue at all; business-as-usual.
      It seems to me that far more ordinary things happen than extraordinary things.
      Much is made into conveying extraordinary significance into ordinary things (remember the talk of HRC downing a shot on the campaign trail, and everyone blabbered about what brand it was, as if this was determinative of something-or-other?).
      Or, you might say, that people who like to carry their asses high in the air are more inclined to smell farts.*

      * A proverb from the French, slightly modified.

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    • “Beyond that, Originalism does not require or suggest that we precisely determine or apply 18th century Americans’ reaction to specific policy proposals.”
      But isn’t that what most proponents of Originalsim do and why it becomes contentious today? They suggest we govern now based on their Originalist interpretation of the the Big C.

      There are roughly three sets of contentions.

      Once concerns the specific delegations in Article I. That does tend to suggest that there are powers not delegated. Why are they now delegated due to the passage of time? Why is it amendments to alter the specific delegations are sickly bad form? Keep in mind, these delegations are only incidentally policy statements. They fix a locus of discretion, not the content of an exercise of discretion.

      A second set concerns the degree of immunity a person has from state action. What sort of magic ‘twixt the 18th century and today renders capital punishment a violation of constitutional provisions (given that the application of capital sentences is regulated in the text itself)? Mr. Justice Brennan insisted it was; Mr. Justice Kennedy insists it is when capital sentences are applied to the likes of Kipland Kinkel.

      A third set concerns the application of the 1st section of the 14th Amendment, which is not an 18th century text.

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  4. OK, I’ll bite. Which religion? Why only Judaism and Christianity? Which sects? Does that mean that Pagans should have no rights? Or atheists? Or of course, like a lot of the GOP would prefer, Muslims should have no rights?

    The problem with adding religion into the mix is that it unfairly grants one over another. And the only reason the social conservatives want to add religion into the school day and into the government. It’s not to respect people’s diversity in regards to their religion or lack of it.

    It’s to single out the non-believers and humiliate them and intimidate them. Period. And my proof? North Carolina’s idea of establishing a state religion.

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    • The most bizarre bit of historical religious revisionism that seems to go on a lot is to try to shoe-horn judaism into the publicly accepted religious structures of the Enlightenment. Or for that matter to try make “Christianity” into some sort of monolith in an era of severe sectarian repression of Catholics in anglosphere politics.

      The US didn’t have its first Jewish congressional rep until 1840. The Clarendon Laws forbade Catholics from holding civil or military office in England until Catholic Emancipation.

      Hell if we want to go with originalism, when the Framers spoke of “religion” they were pretty much explicitly meaning “Protestant Christianity”. Not Catholics, not Jews, and certainly not anyone else. Hell, well past the ratification of the Constitution there were sectarian restrictions on holding public office in the states, artifacts of both the Penal Acts and the restrictions of say Jews from actively holding a Parliamentary borough.

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  5. Sorry for ignoring the cross posting….here’s a comment I wrote on your sub-blog:

    Pierre Corneille May 10, 2013 at 11:54 pm

    I fear you have the following point a bit backwards:

    Originalists sometimes refer to their method as an interpretive approach to the Constitution, as it presumes a fixed meaning to be interpreted. Interpretive approaches are distinct from, no surprises here, non-interpretive approaches, chief among them being Living Constitutionalism. Living Constitutionalism rejects the presumption that a fixed meaning exists or controls, and instead contends that its words take on new and different meanings to adapt to modern contexts and facilitate human progress.

    It seems to me that orginalism–as you define it or as most others define it–is about uncovering or discovering a certain “meaning” to the constitution. Living constitutionalism is about interpreting the constitutionalism as a text, in light of subsequent (that is, subsequent to 1787) developments.

    On a different note, and concerning religion and a national day of prayer, we don’t necessarily know much. The Massachusetts Constitution does not necessarily say much about the relationship of the federal constitution to a “national” day of prayer. And the Northwest Ordinance is a law enacted by Congress–that might suggest a certain “public” understanding of religion in national governance, but it is mediated through the drafter of that ordinance and the congresspersons who voted for it. And its reference to “religion” is pretty general, so much so that it’s hard for me, at least to discern a “public” understanding of it.

    I’ll note two other items. One it is difficult to discern intention from how people vote. Two, we need to consider subsequent amendments, not only the first ten, but also, for example, the 14th, and the “general gist” of the amendments that followed the 14th, which I interpret as being for an expansion of rights (save for Prohibition.).

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  6. If the Constitution fails to reflect the meaning of the American people in whose name it was written, negotiated, and ratified, then the Constitution is no longer an act of self-government

    This is a key claim. I could wish to see it explained and defended at greater length.

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    • It’s a particularly a key claim since those people are no longer around to self-govern. It seems weird to demand that it be an exercise in self-government for and by people who have been dead for a couple centuries. What if it doesn’t reflect the meaning of the American people who are supposed to be self-governing today?

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        • I think this is a valid response, but I have two issues with it.

          1.) It doesn’t really address how the unamended text is read. Again, if we are limited to the meaning supplied to it in a time which lack 200+ years of knowledge, meaning change, and language evolution (I won’t get into problems of reference and meaning that I think make the whole exercise untenable… where’s Ridgely when you need him?), how can it be reasonably said that we are self-governing now? If it can be reasonably said that we are self-governing now while being bound to 200+ year old representations of often abstract concepts, then “self” has lost all meaning for me.
          2.) The one you mention. If 2/3 majorities in both houses, and then ratification by 3/4ths of the states is what is required to change the meaning to one on which at least some of the selves who are supposed to be self-governing can agree, otherwise we are stuck with meanings that potentially none of us agree on, how does this count as self-government?

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            • I lie. I’ll add these two points:

              1. If we struggle with knowing what “public understanding” of particular words, concepts, or ideas are today, how can we put forth a serious claim to know what it was in centuries past? I think we do this only by “flattening” the range of understanding back then, imposing what is likely to be an artificial homogeneity on it.

              2. If we’re going to claim it’s public understanding, not Madison’s understanding, then folks like Scalia are going to have to stop treating the Federalist Papers as dispositive, or there’s a fundamental contradiction between theory and method.

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              • On your 1, there’s another layer to the issue. We’re left interpreting a 200 year old text by trying to interpret… other 200 year old texts. What’s more, these other 200 year old texts, as well as the one we’re using our interpretations of them to interpret, are based on both linguistic and discursive contexts that are, if not lost to us today, known only by a few experts who have a deep understanding of the intellectual climate of the time. I’m not sure which is worse , those contexts being lost to us, or the nature of our political system being entirely reliant on the opinions of a few historians of ideas.

                Here’s another way to look at the problem. Consider the word justice. Justice an abstract term that refers to behaviors and events, and not to things that you can simply point to and say, “Look, a justice” (“Look, a gavagai, or undetatched rabbit parts”… this parenthetical written entirely for Stillwater). This means that the meaning of the symbol “justice” only makes sense in a larger symbol system, comprised of a bunch of other abstract concepts the referents of which can’t be pointed to. Little alterations to the extensions or intensions of one or two of the symbols results in changes to the whole system of symbols, which further results in more changes (it’s a dynamic system with non-linear relationships operating on multiple time scales), which changes aggregate over time. So it’s not simply a matter of trying to figure out how to translate the symbol “justice” as it referred in the late 18th century into symbols that we understand today, but a matter of figuring out the system of symbols upon which the meaning of “justice” is dependent in the late 18th century and translating all of that into symbols that we understand today. This is an intractable problem, and it’s only the first layer.

                It’s not surprising, then, that when these translations are performed, they tend to turn out to look very similar to the existing political ideas and ideals of the translator.

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              • Regard #2, not at all. The point of using the Federalist as a guide to interpreting the Constitution is not that it was Madison’s, Hamilton’s, or Jay’s personal opinion, but rather that it documents the claims they made to convince states to ratify the Constitution. If those claims were false, then the Constitution was ratified under false pretenses. It also sheds light on what the primary points of contention were at the time.

                For example, in Federalist 41, Madison said in no uncertain terms not only that the “general welfare” language in the tax and spending clause was not a blanket grant of authority to Congress to spend money on anything they thought would promote the general welfare, but that those who were characterizing it as such were just spreading FUD. This tells us that:

                1. The ratifiers had been assured very publicly that this was the correct interpretation.
                2. The idea that it was actually a blanket grant of broad spending authority to Congress was an argument against ratifying the Constitution, not for.

                Note also that in Federalist 42, Madison touches very briefly on the interstate commerce clause, mentioning only those aspects of it that are now referred to as the dormant commerce clause, i.e. the restrictions on states’ authority to regulate interstate commerce. It isn’t mentioned anywhere else in the Federalist. If it were really understood as granting Congress the broad spending and regulatory powers that leftists today claim, it would have been a huge fishing deal, the way the “general welfare” language was. Since it wasn’t a huge fishing deal, it clearly wasn’t understood that way.

                Madison’s private writings—personal correspondence, journals, etc.—and anything he wrote after ratification would be irrelevant, on the other hand.

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                • Brandon,

                  More than anyone at the time, Madison knew whereof he was writing. But at rock bottom the Fed papers were advocacy. And Hamilton woukd have lied his ass off to get the Constitution ratified. And they were only written for New York–they were not nationally read. I make great use of them, too, because nothing else from the period is comparable to them. But you’re putting far more weight on them than they were ever intended to bear.

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              • Of we could get a bit more familiar with the period, since they did write their thoughts down in English, a language we still speak. Heck, even Shakespearian English is still perfectly understandable with just a modicum of effort. To claim we cannot understand people from another time, who expressed themselves perfectly well, is little different from claiming we can’t understand people from another region today, which would mean that the Supreme Court couldn’t rule on a law written in someplace like Alabama.

                But I would also argue in agreement that not everyone back then would share exactly the same understanding and interpretation of various provisions and clauses, and look to what understandings they might have had, and what understandings they almost certainly wouldn’t have had, so that we’re trying to gain an understanding of what they were supporting, instead of writing a period fantasy novel.

                To do this we have to understand their experiences, their fears, the common topics of political conversation and how they regarded government and its abuse, corruption, and other things that pissed them off.

                For example, I would argue that the Commerce Clause, given that a common complaint under the Articles of Confederation was that states were setting up trade barriers to protect their local farmers and industry from nearby rivals, was an attempt to stop governmental meddling in interstate trade and decrease the amount of legalistic BS by removing the temptations, bribes, payoffs, and pandering from politicians at the state level. It would be hard to argue that the people were demanding greater interference in their buying and selling, or that they just wanted to concentrate absolute, arbitrary power in a central government.

                Anyway, a little immersion in their writings, letters, and diaries conveys period knowledge quite well for anyone who speaks English and has some understanding about changes in language since then, so that we don’t misinterpret what they said, mistaking compliments for insults or not knowing whether tabling an issue means to bring it up or let it die.

                Another example is “Cuts like a double-edged sword”, which used to mean attacking an argument rapidly and effectively from both sides, like delivering a series of one two punches (both edges are used for attack, and often the back edge was used for the killing blow) but now means a self-defeating argument or one that badly damages both sides. (After we quit using two-edged swords, we forgot how they were used.)

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          • Chris – There are actually two sides of Burt’s response. First, as he put it, modern Americans “can amend the Constitution to more accurately reflect their present intent.” The second is a corollary to the first: to the extent modern Americans choose not to amend the Constitution, they are implicitly adopting and ratifying the original intent. In either event, they are self-governing.

            One possible objection might be: It’s too hard to amend, and thus the “original” intent is basically forced on modern Americans. Thus, it cannot be said that we moderns consented to that understanding. This appears to be your objection. Randy Barnett’s book Presumption of Liberty spent several chapters dealing with this objection, and I wish I had it handy so I can recall the blueprint of his response (my copy is in storage). But the very rough outline of my response is that the American founding did not regard democracy as the sole source of authority. Indeed, democracy is simply a derivative of the doctrine “might makes right.” It is a feature, not bug, of our Constitution that it is difficult to amend, because it was designed to prevent “might” from overwhelming the subtle wisdom of its structures – whether that might would come from fleeting majorities or special interests or popular leaders. To deny the majority its will is no objection on its own. The majority needs something else to show it is right, not merely might. The founding generation felt that a 2/3 majority and 3/4 of the states would be evidence enough that the opinion was not borne by merely a fleeting majority. Or, even if it was, there is a certain point where the will of even a fleeting majority cannot be denied.

            Has the majority produced anything short of a 2/3 of Congress and 3/4 of the states to show its opposition to the original meaning of a particular Constitutional provision is more than fleeting? If so, I think that’s the basic rubric in which to make the case.

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            • But the very rough outline of my response is that the American founding did not regard democracy as the sole source of authority. Indeed, democracy is simply a derivative of the doctrine “might makes right.” It is a feature, not bug, of our Constitution that it is difficult to amend, because it was designed to prevent “might” from overwhelming the subtle wisdom of its structures – whether that might would come from fleeting majorities or special interests or popular leaders. To deny the majority its will is no objection on its own. The majority needs something else to show it is right, not merely might.

              That may or may not be a valid claim about the desirability of a difficult amendment process on its own merits. But it’s not a refutation of the claim that such a feature results in the fact that “the Constitution is no longer an act of self-government”.

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    • You can end up with a 100 plus post discussion about constitutional legitimacy. I would have liked to see this expanded upon too because this is where non-intepretivists can provide the most pushback and make the argument that non-interpretivisist methods are equally if not moreso legitimate. John Hart Ely’s theory of judicial review in Democracy and Distrust hinges its legitimacy on participation in the political process with certain protections geared towards politically disadvantaged groups. Justice Breyer’s emphasis is on democracy not strict adherence to the text. I may disagree with those methods, but those books defend their respective turfs well.

      There’s also a wrinkle when discussing originalism and that’s the fact that just because I consider myself an originalist and can make an argument for its legitimacy, I neither have an interest in rolling back modern constitutional doctrine nor in the event we drafted a new one advocate limiting the powers of the federal government to those things listed in 1787. My defenses are strictly normative in nature.

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  7. Tim, a most excellent rejoinder to my textualist approach. As if I didn’t have enough to do this weekend. I promise a more thorough reply, although I must away tonight to entertain my wife.

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  8. How do you square the Adams statements with something like Article 12 of the Barbary Treaty with Tripoli?

    As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

    This was a treaty ratified by the Senate and drawn up by President John Adams’s state department.

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  9. The several US states did indeed like to establish religious practice in government. They were, however, suspicious of each other’s religiosity, which is why they tried to prevent the federal government from centralizing religious practice, even as their own state constitutions may have mandated Christianity (oath of office as written in the Delaware Constitution of 1776: “I, [name], do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration”). At founding the states were already of differing sects and levels of secularity.

    What then happened was incorporation against the states via the 14th Amendment, which extended all those restrictions on the federal government down to the state level. The generation of 1776 certainly did not foresee that happening. You are worrying about the wrong generation of the public. You should be thinking of the public of a century later, the public in which name it was amended that ‘… no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…’. That is the public which looked upon the irreligiosity of the federal government and said: yes, I’d like to have that extended to all levels of public life.

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  10. Another question.

    How do you square the lack of strict definitions of judicial review within the Constitution and a need for originalism?

    By the 18th century, the doctrine of Parliamentary Supremacy had been firmly entrenched within the English constitutional tradition and Common Law that if the US government was intended to function with an originalist supremacy clause, one expects them to have done that very thing when building the constitution.

    The fact that no one really entertained the notion of congressional supremacy, and there was insufficient support to pass an amendment to overturn the assumption of judicial review of legislation assumed by the Marshall Court, would it actually be safe to assume originalism was even something the Framers themselves would have recognized as a legitimate reading rather than textualism?

    (And let’s not even get into how parliamentary supremacy and later “Wednesbury Reasonableness” have totally defanged judicial review in the UK…)

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  11. How about the simple fact that the people during the early Republic lived in a very different world? They simply would not be able to contemplate our world even if you showed it to them as destiny.

    The early American Republic like the rest of the world was largely pre-Industrial, largely agricultural/rural. Most people were farmers. Harlem was a small fishing village in upper Manhattan. Greenwich Village was even considered rural and beyond the barriers of New York City.

    Our world is different, the world changes.

    I also think you can make an argument that civil rights was indeed difficult because so many people adhered to an early Republic concept that the Constitution applied to whites but not to African-Americans and other minorities.

    Things change, they have always changed and always will change. We should not be held captive by the past forever and allowed to forge our own interpretations and histories. Some traditions are good, others are not so good. It should never be an justification to keep something because “that is the way it has always been done”. A process or interpretation needs to defend itself as good on grounds beyond “tradition”. And I am not very sentimental about the dead after a while. They are dead. They do not interact with the living. We should not be bound in deference to the dead in perpetuity.

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  12. What about the black folk living in America in the 1780s? Do their views count given that they weren’t part of the ‘sovereign people’? Originalism, like its cousin ‘states rights,’ is just a euphemism for ‘whites only, please.’

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    • And how do you figure that today’s appellate judges – commonly Ivy League educated and invariably meeting in secret with other members of the bar – are better suited to represent the interests of late 18th century slaves, indentured servants, and others without property than are today’s municipal councillors?

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      • Simple answer is that they don’t. Anyone claiming to speak for the average 18th century citizen is by modern standards an ass-hole… which is the problem with originalism.
        Do you think that it’s a coincidence that Originalists just happen to interpret the Constitution in a way that coincides with the political preferences of white supremacists?

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        • The alternative to ‘originalism’ is the judicial annulment of duly enacted legislation according to preferences pulled out of the air. Judicial review is not congruent with electoral and deliberative government unless it is very circumscribed. It has not been for fifty-odd years.

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          • If only the evil liberals hadn’t abandoned Originalism… then we could have stuck with the founder’s vision of a white male propertied electorate keeping everyone else subordinated.

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            • This may come as a surprise to you, but there have been five duly enacted amendments to the federal constitution altering the boundaries of suffrage. Nearly every state had removed property qualifications for suffrage by 1836. No judicial decrees mandated any of this.

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              • But the premise of the OP was the ‘people’ as constituted in the 1780s… which bears no resemblance to the contemporary voting population.
                Plus, Brown v Board was a violation of Originalism… they would have been scandalized by Negroes having equal rights, much less women, gays, or Jews. Black folks can read your code: Originalism=white supremacy.

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                • But the premise of the OP was the ‘people’ as constituted in the 1780s…

                  ??

                  Brown v Board was a violation of Originalism…

                  D.C. had segregated schools ca. 1866, so it would be an involved argument to say that segregated schools per se were a violation of constitutional norms. The question would arise as to whether a given distribution of public works and services would violate a constitutional provision. That is a difficult thing to remedy through adjudication as it would require a functional trusteeship over not only the school system but the water works, sewer system, &c. Attempts by federal judges to supervise local school systems make for an unedifying history.

                  Black folks can read your code: Originalism=white supremacy.

                  My code? You have confused my arguments with your rancid imagination. I think there is a distinct term for that in clinical psychology…

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                • Plus, Brown v Board was a violation of Originalism… they would have been scandalized by Negroes having equal rights, much less women, gays, or Jews. Black folks can read your code: Originalism=white supremacy.

                  Plessy v Ferguson was wrong the day it was decided and as wrong on originalist grounds as Brown was correct.

                  You are obviously not up to speed on what does and does not constitute originalism, especially the contributions from both libertarian and liberal legal scholars.

                  Art Deco and I have strong disagreements about what is and what is not originalism. Neither of us find the other correct, but we both believe to argue from the originalist standpoint. You may want to consider that.

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          • “The alternative to ‘originalism’ is the judicial annulment of duly enacted legislation according to preferences pulled out of the air”

            Well, when you phrase it that way, there really is no other option–either we interpret the constitution according to dubious history understanding, or we’ll have no standards at all! Color me convinced.

            Also, last I checked judicial review was a pretty popular tool to strike down economic regulation around the turn of the century, but then again, the constitution did enact Herbert Spencer’s Social Statics.

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          • If “originalism” is meant to take the preferences of the people who actually drafted the document, then judicial review of legislation is in fact, a feature, not a bug, and is very much part of the original intention of the Framers.

            Federalist 78 and the fact that you know, Secretary of State James Madison seemed perfectly content with the ruling in Marbury might give us some insight on whether the Framers and the chief architects of the Constitution thought judicial review was a good thing.

            Moreover, the fact that they explicitly broke with English common law tradition of parliamentary supremacy suggests this was intentional, not some unfortunate by-product of not thinking it through.

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          • The alternative to ‘originalism’ is the judicial annulment of duly enacted legislation according to preferences pulled out of the air.

            Eh? Originalism requires judicial annulment. Judicial deference to blatantly unconstitutional legislation far, far more common than judicial annulment of constitutional legislation.

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            • Brandon, the phrase ‘preferences pulled out of the air’ refers to something other than constitutional text (e.g. articles by Ronald Dworkin in the New York Review of Books).

              As for courts invalidating ‘blatantly unconstitutional legislation’, good luck with that. One problem is that stare decesis is often an authentic consideration. Robert Bork offered the example of the Bureau of Engraving and Printing conjoined to the Federal Reserve. He said one could make a passable argument that the authority to print paper money is not a delegated power – only the authority to issue coin is delegated. However, a judge who attempted to enjoin the Bureau of Engraving and Printing from operating would not be a meticulous adherent to text and history; he would be a madman. The same applies to Social Security, also a dubious bit of business in law (though a passable policy decision).

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            • OTOH, I doubt you would have much trouble in the realm of political economy if a judge ruled that growing vegetables for home consumption does not fall under the heading of “commerce among the several states” or that a drug deal going down outside a local high school does not fall in that category either or that the business of ‘public accommodations’ not found at inns or at transportation hubs or at Interstate exits or along U.S. Routes does not either (though the reaction to that last would be neuralgic to say the least, even if it had no practical effect outside of Forsyth County, Ga).

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  13. Take the National Day of Prayer, about which Mr. Likko recently wrote.

    Take the 14th amendment, sleep on it, and call your lawyer in the morning to get updated to the present day.

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  14. I believe I’m stealing from something mr. Kuzniki posted in a comment thread long ago, but suppose we have a text on mathematics that defines an even number as one that can be evenly divided by 2. By way of example, it states that 3 is an even number. Which do we follow – the principle as we understand it, or the clearly erroneous application of it?

    I think this is most easily seen in the case of first amendment jurisprudence. “Freedom of the press” had a specific legal definition in the colonial period, and it was highly circumscribed: it only referred to a prohibition against a censor preventing publication – you could still face legal penalties for what you wrote after it was published. This is likely what the public had in mind when it ratified the first, and it’s probably why the alien and sedition acts escaped constitutional scrutiny. Nevertheless, I think that it’s pretty clear that a polity where you can be executed for criticizing the president is not one where freedom of the press regins. So we have a choice: do we consider 3 an even number, or consider the alien and sedition acts consistent with freedom of the press? I don’t think so. The constitution is purposefully broad, enshrining far-reaching principles, rather than taking on the prolixity of a legal code. It didn’t have to be so; if the American people had wanted to enshrine their particular definition of freedom of the press, they could have written the amendment more narrowly, something along the lines of “no censor shall prohibit publication.” But they didn’t, which tells me that their intention was to enshrine certain principles that future generations would of course have their own take on.

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    • Mr. Vonder Haar,

      I am sympathetic to this view. I believe words have a fixed meaning, but I don’t mean that words mean a limited number of things. As I said upthread, the public might have understood the 14th Amendment to extend Equal Protection under the law to blacks only, but the plain language doesn’t so limit the application. The approach, I think, would be this: If you were to go back in time to a day before ratification and point out the breadth of the language they proposed, would they say “oh, yeah, I didn’t think of that, but that is the effect of those words”? Or would they say “no, I have no idea what you’re talking about, you must be giving those words a different meaning than I do”? I think it would be the former, and thus applying the original public meaning (as opposed to perhaps original subjective intent) still gets you with a 14th Amendment that applies to all people, not just blacks.

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  15. Consider Tim’s assertion here:
    “In the same way, it is the people’s understanding that controls the meaning of the Constitution, because the Constitution is authorized by the people’s authority and concerns the people’s rights. The framers were just their scribes.”

    So who are these “people” whose meaning we are trying to ascertain? Martha Washington? A landless Irish laundress?

    If the Founders are only “scribes” then the Federalist papers, and all their other writings are irrelevant- who cares what the lawyer’s private musings are, if we are discussing the client’s meaning?

    Shouldn’t we be researching Sally Hemming’s private correspondence and diaries to determine her understanding of the “public welfare”, so as to be clear about what the original client wanted?

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    • I didn’t participate in this thread earlier, but I think the strongest support for Mr. Kowal’s claim goes to this question that left-liberals or progressives continually make. I should add I’m q – I’m not sure why we don’t call them “Vitalists” or have some other shorthand for ’em, unless Progressives does the trick –

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    • LWA – oops, accidentally hit “Submit.” I’m not sure I want to do anything with that Monday morning first coffee thought on “Vitalists,” but there’s a difference between revising or junking the Constitution or constitutionalism via a theory of interpretation or interpretive skepticism, and “Progressivism,” since the Progressives, though they generally believed that constitutions should be updated to suit the times, they overall remained committed to some kind of constitutionalism.

      On a basic level, we know that the People don’t despise the Constitution enough to ignore it, and the vast system of positive law grounded on it. In fact, we know that, when called upon, the People will not merely obey, but enthusiastically support, kill and die for, the flag and the republic for which it stands. We know that the political class, and lawyers and judges, and the press, and everyone else active in the political world pays attention to the Constitution, and seeks to ground arguments on some version of constitutionalism. So, if we consider constitutionalism desirable or irreplaceable (because we lack an alternative and fear chaos, or because it would be too difficult to decide on whatever alternative or even how to decide on an alternative, and replace the current system with it), how could a constitutional system function at all without some version of Originalism?

      Mr. Kowal refers to “original public meaning” so that we don’t have to consult Sally Hemming’s private correspondence. It’s obviously a generalized and functionalized theory of meaning, “good enough for government work.” Its relevance is that, on every one of ca. 236 * 365 days since the original document was written, people trying to determine what various fundamental provisions meant had to consult the day before’s understanding of the day before’s understanding etc. eventually back to the time of composition. A main source of control, of preventing the process from turning into an historical game of “Telephone,” in which “freedom of the press” on day 1 might by the infelicities of communication turn into “total control of the press” or some complete absurdity by day 86,000, is to consult the original message and, where appropriate, any modifications that, either by amendment or by customary use over an extended period time (one of the many lawyer’s here may be able to provide the precise term here), have entered into consensual understandings.

      Though I disagree with Mr. Kowal on many things, and though I think he overstates things when he says that “self-government is doomed” without acceptance of a “fixed meaning,” I think there is a good argument that constitutionalism and originalism, properly understood, are virtually the same thing. If you don’t have a doctrine of originalist interpretation, then you cannot have a system of government constrained by a quasi-contractual written text. You would need some alternative scheme. In short, “public meaning” is the subject of the entire debate: How in very fundamental and practical ways do we define the character of, understand the meaning of, our (re)-public. Conceptually, public meaning at any given moment is made up of diverse elements. The possibility of constitutional government at all implies initial reference to texts written (or amended) and published at a certain place and time, and interpretable according to common usages in whatever place and time.

      If our radical skepticism of language or a radical historicism prevents us from trusting such interpretations, or our radical skepticism of institutions prevents us from accepting those charged with deciding between conflicting interpretations, then we cannot have constitutional government at all. In this respect I think Mr. Kowal’s main argument is sound and persuasive.

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  16. Judging (heh) by its practitioners, originalism is the doctrine under which the Supreme Court has the power to decide presidential elections, but legislation to enforce the 15th Amendment is unconstitutional (apparently because the original meaning of “The Congress shall have power to enforce this article by appropriate legislation.” is different from the present one.)

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  17. I enjoyed this, it’s a fine piece of writing. Now, explain to me how it applies to the Postal Clause: “The Congress shall have power… To establish Post Offices and post Roads;”. Not operate a postal service, even though most — but not all — people have agreed that’s an implied power. Lots of argument over whether it meant the federal government could build roads, or was limited to designating them. IIRC, at least one court case early on challenging the federal government’s authority to transport mail by ship. Sometimes interpreted by Congress as giving the federal government a monopoly on mail service. Nothing in there about door-to-door delivery. Nothing about money orders, where the Post Office Department provided what were essentially banking services. Nothing about creating the air mail service, whose primary purpose was to subsidize the fledgling airline business. It’s also led to occasional silliness, like Congress explicitly declaring that all waters on which steamboats provide regular service to be postal roads (eg, the Atlantic Ocean). And then to declare that all railroads are post routes. And eventually to declare that all public roads are post routes.

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    • I’m happy to try a response, but I’m afraid I don’t have a very good idea what the original public meaning of the Postal Clause was. Are you suggesting that the power to “establish” was not understood to include the power to operate? Assuming we got past that, I tend to think, judging by the advocacy in the Federalist Papers for a more vigorous federal government to facilitate commerce among the states, seems to me that a Post Office adapting to new technologies and circumstances to serve that purpose is not obviously out of step with that original public meaning, though very, very roughly and broadly stated.

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