On Saturday, I posted The Fourth Amendment in the Blogosphere & Constitutional Theory, which lamented the lack of theoretical precision in recent discussions about originalism. In particular, I was concerned with the distinction between "original meaning originalism & "original intentions originalism." Sophisticated originalism is not about "original intent" and it hasn't been for quite some time.
My post mentioned a comment by Marty Lederman on a post by Randy Barnett. Lederman has now provided some additional remarks, including the following:
Moreover, I'm not yet convinced by Randy Barnett that the intent/meaning distinction will make *that* much difference in application. After all, as Randy's best work demonstrates, isn't it usually the case that the intent of the framers -- or what they wrote, anyway -- is especially good evidence (often the best evidence) of what the words might have meant to the relevant legal community at the time? To me, anyway, the interesting theoretical questions in this debate are: (i) as Jack explains, determining the proper level of *generality* or *specificity* at which to be pitching the question; and (ii) *why* we should privilege original meaning or intent in constitutional interpretation -- a question that is inextricably tied up with the more fundamental question of why we should feel bound to abide by the constitutional "commitments" established by others at all (on which I think it is fruitful to look, especially, to recent work by folks such as Chris Eisgruber and Jed Rubenfeld).
Let's focus on the following passage: "After all, as Randy's best work demonstrates, isn't it usually the case that the intent of the framers -- or what they wrote, anyway -- is especially good evidence (often the best evidence) of what the words might have meant to the relevant legal community at the time?" Lederman is right that what the framers wrote is evidence relevant to original meaning, but there is lot's of other evidence as well--including the actual words used and evidence about contemporaneous linguistic practice.
I am somewhat surprised by Lederman's assertion that framer's intent is "especially good" or "the best" evidence of original public meaning. There are two reasons for my surprise. First, Lederman's characterization sidesteps Jack Balkin's important point--that original expectations about application is frequently not very good evidence of the public meaning of the text. As Balkin observed (in a post that Lederman endorsed): there are "two related but distinct questions: the original public meaning of the constitutional text, and the original expected application of the text. These two ideas are quite different in practice, and the difference between them becomes increasingly important as we move further and further away from the generation that produced a constitutional text." Second, the best evidence of the original public meaning of a text is the "text" itself and the next best evidence is almost always evidence of contemporaneous usage--the ordinary or plain meaning of the words and phrases.
Lederman says he agrees with Balkin. Does he agree with this passage from Balkin's post?
I myself [i.e. Jack Balkin] believe that constitutional interpretation should be consistent with original public meaning and underlying principles behind the text, but I don't accept that original expected application is binding. I don't think that fidelity to text and principle requires fidelity to the specific set of applications that persons living at the time of adoption would have expected. Therefore I don't agree with Scalia's form of originalism, even though he calls it original meaning. I believe that Scalia engages in precisely the conflation between text and expected applications that I indentified above. My position is closer to Randy Barnett's and Akhil Amar's, with differences that aren't relevant for purposes of this discussion. (emphasis in bold added)
One more point about Lederman. Randy Barnett might have something to say about Lederman's characterization of his work; let me just say that Lederman sketches Barnett with a very broad brush.
Yet another reaction comes from Thom Brooks in a post entitled Against originalism:
In essence, if we claim an originalist position, then we claim that there is "an original intent" to be found. The major problem with this position is that no such creature has ever existed. Constitutions were the product of compromise and historical accidents---no least with the construction of the US Constitution.
I must say that I find this comment especially frustrating. Most originalists agree with this--hence the move from original-intentions originalism to original-meaning originalism. This is the kind of theoretical confusion that my original post found so lamentable.
Another comment comes from Hanno Kaiser on Law and Society Blog, who questions the idea that the "original public meaning" provides the semantic content of the Constitution:
[W]hy should we assume that the constitution derives its authority from its adoption? Why locate the “origin,” to which originalism ascribes special meaning, in 1789 (or the dates of subsequent amendments)? What if we were to re-ratify the constitution toady without changing its text? Presumably, that would reset the date for any originalist interpretation.
Once again, I must say that I am disappointed. This move, which Kaiser takes to express a criticism of originalism, actually is made by originalists themselves. For example, in Kurt Lash's very interesting originalist work on the religion clauses, he argues that since the clauses were applied to the states in the 14th amendment, the relevant evidence of original public meaning must include the understanding of the clauses that prevailed at the time the 14th was adopted--even if that varies from the understanding of 1789. Lash calls this "the second adoption." (See The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle, 27 Ariz. St. L.J. 1085 (1995))
The conversation has continued in other directions as well. Brian Leiter has graciously replied to my More on Constitutional Theory and Originalism in a modified version of his "Originalism Redux" Redux (with a reply to Solum).
Before I go any further, let me note some potential areas of agreement with Leiter. First, I suspect that Leiter and I would agree that many originalists have very little to say about the theoretical justifications for originalism. Second, I suspect that we would agree that much originalist scholarship is theoretically imprecise--failing to articulate the specific version of originalism that guides the work--I tried to make that point earlier. Third, I supect we agree that any theory of constitutional interpretation stands in need of justification. One cannot simply "assume" that any version of originalism or of nonoriginalist theory is correct--arguments are needed.
But we seem to disagree about something important. Leiter apparently believes that there is no version of originalism for which normative foundations have been provided. I don't agree. And I'm still not sure I understand what Leiter means. That is, I am not sure what kind of foundations Leiter believes to be missing.
Let me see if I can move the ball forward a bit by paying close attention to Leiter's most recent post. I will quote Leiter's very helpful post in blue, with my comments and questions in red. Please note that this is a departure from my usual convention--where my own comments are frequently blue.
I confess to being puzzled by Larry Solum's puzzlement, but shall try my best to clarify the question. In my original post, I wrote (this was not a part Professor Solum quoted):
[T]he fundamental question is why a particular meaning has a justfied claim of authority over us, i.e., why we should comply with that way of construing the meaning rather than some other. It is very hard to answer this question without some explicit account of what confers normative authority.
Notice that Leiter formulates the question as "why a particular meaning has a justified claim of authority over us." At this point in the post, Leiter might or might not be conceding that the constitution itself has a justified claim of authority over us. In my post, I suggested that if Brian were making this concession, then it would entail that that it is the "semantic meaning" of the constitution that has a justified claim of authority. If so, there must be some theory of what the semantic meaning is. Originalism offers a such a theory, and I've argued this theory is plausible for Gricean reasons. Leiter doesn't respond to any of that--so it seems likely that he thinks these points were not responsive to his concerns. So now our task is to limn Leiter's post with the aim of determining how Leiter's remarks might nonetheless be responsive to my queries.
I'll proceed by suggesting two interpretations of Leiter's remarks:
Interpretation One: The Two-Step Theory of Justified Authority. Leiter might be suggesting that a two-step theory of justified authority is required. In step one, the authority of the constitution is justified. In step two, the authority of "a particular meaning" of the constitution (or perhaps "a particular meaning of a particular provision" of the constitution) is justified. But the requirement for the second step is quite odd. Once we've established the justified authority of the Constitution, the usual thought is that the work of justifying authority is done. We don't need a separate account to establish the justified authority of particular interpretations, provisions, or meanings. The authority of the particular meaning derives from the authority of the constitution.
Interpretation Two: Theories of Meaning Must Follow from Theories of Justified Authority. But perhaps Leiter means something else. For example, his formulation of the question, "why a particular meaning has a justified claim of authority over us," might have been a bit off. His real point might be that one's theory of constitutional meaning must fall out from one's theory of justified constitutional authority. Then the picture would be like this. First, justify the authority of the constitution. Second, determine what theory of constitutional meaning follows from one's theory of justified constitutional authority. Interpretation Two seems consistent with the following passage from Leiter's post:
To be committed to constitutionalism is to be committed to be bound by the meaning of the words in a foundational social and political document of some kind. Constitutionalism itself requires an account of its normative authority, and it is possible such an account would entail originalism. I am not aware of a compelling account of this kind offered by originalists, but surely if there is one, someone can articulate it or reference it.
The key is the second sentence: "Constitutionalism itself requires an account of its normative authority, and it is possible such an account would entail originalism." If this is Leiter's position, he hasn't done the necessary work to establish it. It's true that one' theory of constitutional meaning must be consistent with one's theory of justified constitutional authority, but it does not follow that a theory of meaning will be derived from the theory of justified authority. Indeed, it would be quite odd if it did. The normative authority of a constitution and the semantic meaning of a constitution are quite distinct. How could one derive a theory of semantic meaning from a theory of normative authority?
Take a small scale and hugely simplified example: suppose we have a theory of democratic legitimacy that justifies the authority of the City of Austin in enacting ordinances regulating the times when citizens may use the public parks and that an ordinance is enacted. How would the theory of justified authority answer the question as to how we interpret the ordinance? There is a conceptual mismatch between the theory (about democratic legitimacy) and the question it would have to answer (about the meaning of statutory language). A much different kind of theory would be appropriate. For example, the relevant theory could hold that the meaning of statute is the plain meaning of the words to an ordinary citizen.
Let me put this point a bit differently. Once we have established the authority of the statue, there is a factual inquiry about semantic meaning. When we ask, "What do the words 'Use of the park between the hours of 10:00 p.m. and 6:00 a.m. is prohibited' mean, it seems unlikely that we will find the answer in a theory as to what justifies the authority of municipal ordinances. Instead, we will be asking questions about the role of plain meanings, the intentions of city council members, and so forth in determing semantic meaning. In doing so, we will be addressing an ultimate question of fact, "What was the semantic meaning of the statute?" That question is distinct from "What is the normative justification for the statute's authority?"
And one more try at expressing my puzzlement. I am puzzled by what I take to be a very odd picture of the relationship between a Constitution and its meaning. The notion seems to be that the Constitution is one thing and its meaning is something different. Of course, there is a distinction between constitutional syntax (the letters and spaces) and constitutional semantics (the meaning), but any decent theory of constitutional authority will aim at justifying the constitution as a semantic entity and not as "mere syntax." Originalism is primarily a theory of semantic content.
Of course, there are other questions. Should the original public meaning give way to precedent? Should judges be authorized to give constitutions "amending constructions"? Should judges have power to add to the Constitution by creating new rights and powers in response to considerations of political morality and changing social conditions? A complete theory of constitutional interpretation must answer these questions as well. It may be that some critics of originalism believe that originalists do not have answers to these questions. What I would like to suggest is that these questions go beyond the conceptual core of originalism--they are additional questions about which originalists can disagree. For example, there is currently quite a bit of debate among originalists about the role of precedent. Some originalists endorse a fairly strong theory of stare decisis. Others argue that precedent should play a more limited role.
There is another difficulty with Leiter's argument on the second interpretation. Normative constitutional theory can address the question as to what justifies the authority of the Constitution, but it is likely that the answer to this question will be controversial, as most questions of high political theory are. As a practical matter, legal practice can assume constitutional authority but it must answer questions of constitutional meaning. This gives us good reason to develop theories of constitutional interpretation that are "independent" (in Rawls's sense) of theories of constitutional legitimacy.
The problem with originalism is that it has no answer to this "fundamental question" because originalists don't grapple with the question of normative authority; indeed, they don't even seem to recognize it as a question!
Because I'm still not sure what Leiter's "fundamental question" is, I'm not sure whether originalists grapple with it.
If Leiter's "fundamental question" is about the normative authority of the constitution, then it is surely an error to think that no originalists have grappled with it. Barnett's theory of constitutional legitimacy is just one example of such grappling.
If the question is the normative authority of "particular meanings," then I think that Leiter may be right, but I am not aware of any nonoriginalist constitutional theorists who have grappled with the "justified authority of particular meanings" question either. Indeed, that question, as interesting as it may be, seems to be unique to Leiter.
Leiter has another argument:
Originalists often act--this may be the subtext of Larry Solum's puzzlement--that originalism is the default or unavoidable position. But that is nonsense, and that it is not recognized as such is one of the reasons why I describe originalism as the "reigning pathology" of current constitutional scholarship. As I noted in the original posting, I have heard originalists express the view that to interpret a constitution is necessarily to interpret its original meaning. This is false, and not only as a conceptual matter: Canadians have a constitution, but originalism is barred as an interpretive method.
Several points here, reserving the Canadian case for the end.
Let me begin my reply by taking several issues off the table. Originalism certainly isn't the only method for resolving constitutional cases. For example, I believe that the Supreme Court ought to follow precedent and respect settled constitutional practice, even when it is inconsistent with the original meaning of the Constitution. And I don't think anything important hangs on the question whether originalism is the "default" method--see yesterday's Legal Theory Lexicon: It Takes a Theory to Beat a Theory. And judges certainly can disregard the constitution or change its meaning through judicial fiat--surely Leiter doesn't wish to accuse originalists of being unaware of that possibility.
So with those issues out of the way, let's return to the question that I tried to pose to Leiter in my earlier post. That question was whether he had an account of constitutional meaning that could be compared to original-meaning originalism. Until he produces such a theory and explains how that theory does flow from the theory of justified constitutional authority, it is going to be very difficult to discern what it is that Leiter believes originalists are not producing. If Leiter is right and there are many such theories of constitutional interpretation with corresponding accounts of justified constitutional authority, then mentioning them would surely make this discussion more concrete and increase the chances of mutual understanding. We can see how these theories answer his fundamental question, and this will illuminate what Leiter believes is missing from originalist theorizing.
As to Leiter's assertion that "Canadians have a constitution, but originalism is barred as an interpretive method", Leiter was referring to the Supreme Court of Canada's decision in Re B.C. Motor Vehicle Act,  2 S.C.R. 486, in which the Court rejected to the use of "legislative history" as an aid to interpretation of the Charter and reaffirmed the "living tree doctrine." Here is the key pasage from the opinion:
Another danger with casting the interpretation of s. 7 in terms of the comments made by those heard at the Special Joint Committee Proceedings is that, in so doing, the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs. Obviously, in the present case, given the proximity in time of the Charter debates, such a problem is relatively minor, even though it must be noted that even at this early stage in the life of the Charter, a host of issues and questions have been raised which were largely unforeseen at the time of such proceedings. If the newly planted "living tree" which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt its growth.
This is a judicial opinion--not a work of constitutional theory. So we should be cautious about reading theory into the opinion. Some things seem clear:
First, this opinion rejects "original intentions originalism." Of course, the fact that originalists have large abandoned this form of originalism was the major thrust of my original post.
Second, this opinion rejects the idea that the meaning of the Charter is fixed by what Jack Balkin calls "the original expected application of the text." Of course, I agree with Balkin when he distinguishes application from meaning, and in fact, the post to which Leiter was responding explicitly endorsed Balkin on this point. As I've argued, original expected applications are only evidence of the meaning of the text--they do not fix the meaning. But the Canadian Supreme Court's rejection of fixation by original expected application is not equivalent to a rejection of original-meaning originalism.
Third, it seems very unlikely that the Court was rejecting "original meaning originalism"--e.g., the idea that the meaning of the constitutional text is its "original public meaning"--to use Balkin's phrase. Several reasons: (a) this form of originalist theory was first prominently articulated in 1989 (see my prior post) and not fully developed until the late 1990s but Re B.C. Motor Vehicle Act was decided in 1985; (b) the opinion doesn't explicitly reject the authority of the text or discuss anything like "original public meaning"; (c) the actual methodology of the opinion is textualist and its deployment of that method is consistent with original-meaning originalism. (In part, this consistency is an accident of history. The case was decided shortly after the adoption of the Charter, so the contemporary meaning the text was also the original public meaning.)
Fourth, it is possible that the living tree doctrine is inconsistent with original meaning originalism. That is, it is possible that the Court sanctions judicial authority to alter the meaning of the Charter or to interpret the Charter in light of contemporary language if there has been a shift in the meaning of words or phrases since the time the Charter was adopted. I would need to know more about the doctrine and its application in other subsequent cases.
Fifth, whatever is going on in Re B.C. Motor Vehicle Act, that opinion does not articulate a theory of constitutional interpretation. There may be other Canadian decisions that do this--I have only a passing knowledge of Canadian constitutional jurisprudence. That is, Re B.C. Motor Vehicle Act does not articulate a view of constitutional semantics that could be considered as an alternative to original-meaning originalism.
On a hopeful note, sometimes when originalism is discussed in the blogosphere, progress is made in clarifying the issues and shaprening the theoretical distinctions. I hope this has been one of those times.