Yesterday's The Fourth Amendment in the Blogosphere & Constitutional Theory is part of an ongoing conversation about originalism and constitutional theory. Here are some the reactions in blogosphere:
Ilya Somin has a nice comment, Distinguishing Original Meaning and Original Intent:
"I definitely share Larry Solum's frustration. Sadly, the confusion is not confined to the blogosphere and "contemporary constitutional scholarship." Supreme Court Justice Stephen Breyer also does not get the distinction between original meaning and original intent (or at least does not realize its importance) . . . "
Brian Leiter reiterates his belief that originalism lacks theoretical foundation in his post, "Originalism Redux" Redux:
I thought it might be timely to remind folks that originalism, the reigning pathology of American constitutional law, is the theory of constitutional interpretation without any theoretical justification.
Jack Balkin has a truly excellent post, Confusion About Originalism?:
Larry Solum asks why nonoriginalists still talk about "original intentions" when in fact most legal theorists who are originalists have long ago moved on to some variety of original public meaning. There are two reasons. One is that most nonoriginalists don't see much difference *in practice* between the positions of those who used to talk about the intentions of the framers those who talk about original understanding and those who talk about original meaning, even though these positions are theoretically distinct and have different theoretical weaknesses.
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The second reason for the conflation by nonoriginalists, however, is far more important. Many people who call themselves original public meaning originalists-- and here I have Justice Scalia particularly in mind-- tend to conflate 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.
Just a few comments. Jack Balkin's second point is very important, and too often ignored by originalists. The original public meaning and the original expected application are two diffferent things--this point, which Balkin has made before, is absolutely crucial. Of course, "original expected applications" may provide evidence about "original public meaning," but it is just evidence--the two are not equivalent.
On Balkin's first point, let me offer what might be called a "confession and avoidance." Much originalist scholarship (and originalist discourse outside the academy) does collapse the distinction between original meaning and original intent, both in theory and in practice. In fact, my post from yesterday was motivated in large part by several originalist papers posted recently on SSRN, which simply failed to acknowledge the theoretical difference between original public meaning and various kinds of original intent. Balkin is right about this--and originalists should pay heed to his point. But this is no excuse for scholars who make arguments about originalism in constitutional theory--whether they are originalists or nonoriginalists. Theoretical debates only make progress if theories both defended and attacked in their strongest, most viable forms. The community of constitutional theorists will get nowhere if we view debates in constitutional theory as "moots" or "debating contests," where the lapses of our opponents are taken as justifications for failing to discuss the best and most sophisticated versions of various theoretical positions. I suspect Balkin would agree with this, but I would be interested in his reaction.
I would like to point out that there is a certain tension between Balkin's first and second points. Recall his first point: "most nonoriginalists don't see much difference *in practice* between the positions of those who used to talk about the intentions of the framers those who talk about original understanding." And now juxtapose that with his second point: These two ideas [original public meaning of the constitutional text, and the original expected application of the text] 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. I say "tension" rather than contradiction, because Balkin is consistent. His first point goes to flawed executions of originalist theory--where "original intentions" are conflated with "original public meaning." His second point goes to a theoretically more sophisticated and consistently executed version of originalism, where the "practical" difference between original intentions (or expectation about application) and original public meaning can be quite substantial. To me, this is the crucial point--as Balkin shows--original meaning originalism and original intentions originalism are very different, both in theory and in practice--if we are discussing these theories in the most sophisticated forms and if they are correctly and consistently applied.
Finally, a word about Brian Leiter's comment. Let me quote a passage from Leiter's earlier post:
In general, originalists fail to come to terms with the question of why original meanings or intentions should be authoritative, and opt instead for instrumentalist arguments of the form, "We need originalism to constrain judges." But there are multiple ways to constrain judges (make their decisions appealable; permit legislative overrides [as, e.g., the Canadian Charter does in certain contexts]; adopt a simple rule like, 'Appellant always wins' [this last being far more efficient than originalism!]; adopt a more complex rule like "the plain, current meaning controls," and where it is unclear, do a Gallup poll to see what the "people" want), and so what is needed is some clear explanation of why originalism should be the preferred way of achieving constraint (why is constraint a value? how much constraint can originalism deliver compared to alternatives? etc.).
Most of Leiter's post was directed at McGinnis & Rappaport's supermajoritarianism, but I would like to focus on a preliminary question. What question is Leiter asking, when he asks for a justification of the authority of the original public meaning of the constitution? Here are three possibilities:
He might be asking why law is authoritative. This seems unlikely & I won't discuss this possibility further.
He might be asking why the constitution itself has authority. Why should we be bound by "dead hands"? It is possible that this is Leiter's question, but I take the tenor of his remarks to suggest that it is not his question. I believe that Leiter assumes the constitution is authoritative but that there is a different question as to whether its original public meaning is authoritative.
- So, let's assume that Leiter is asking why the authority of the constitution extends to its original public meaning.
Assuming, I am right and that Leiter's question is question three, then I am still in need of clarification. What is the precise nature of Leiter's query? Leiter might have the following picture--the constitution is authoritative, but the authority of the constitution is limited to its "syntactic properties," that is, the authority of the constitution only extends to the letters and spaces that make up the text, but not to their meaning, i.e. not to the "semantic properties" of the constitution. This is an interesting possibility, but it seems highly implausible. If the constitution has authority, then it seems most reasonable to think that the authority it has attaches to the semantic properties. For example, if the United States were to adopt Spanish as its new official language, it would be reasonable for the Constitution to be given an authoritative translation from English into Spanish--the semantic meaning and not the just the "markings" are what is authoritative.
So let's assume that Leiter concedes that the semantic meaning of the constitution has authority. The question then arises, "what is that semantic meaning?" Some answer to this question is required. One possibility is that the judges are free to assign any semantic meaning they choose. That is, the constitution is authoritative, but the authority of the constitution does not attach to the semantic meaning of the constitution itself, but instead attaches to whatever meaning judges chose to assign to the constitution. Again, this view seems implausible, for familiar reasons. The idea of an authoritative constitution is usually understood to include the idea that the constitution is authoritative for judges--it binds them and therefore it cannot be that their interpretations exhaust constitutional authority.
Another possibility is that the semantic meaning that is authoritative is what the philosopher Paul Grice calls "speaker's meaning," or in the context of constitutional interpretation, what we might call "framer's meaning." This sort of meaning depends on the audience having knowledge of the speaker's intentions. In the case of a constitution, it would require that the citizenry have knowledge of the framer's intentions. But since the records of the Constitutional Convention were secret at the time the Constitution of 1789 was ratified and first applied, the conditions for speakers meaning are not satisfied. Add to this, the litany of problems with "original intent" as a theory of constitutional interpretation. I think it is fair to rule out "framer's meaning" as the semantic meaning that is to be given authority.
Yet another possibility is that semantic meaning of the constitution is analogous to what Grice called "sentence meaning," which we might dub "clause meaning" in the context of a constitution. Sentence meaning is the meaning that the audience would attribute to a speaker knowing that the speaker was aware those to whom the speaker's words were directed would not have any access to information about the speaker's intentions--other than the words themselves and the context in which they appear. This is the idea of "public meaning." In the context of the constitution, the "public meaning" is the meaning that would be attributed to the clauses of the constitution by the audience--the polity of 1789 (for the original constitution before amendment)--without any special knowledge of the particular purposes, plans, expectations, or hopes that motivated the members of the Philadelphia Convention. That is, the "clause meaning" is the "original public meaning." Original meaning originalism is the view that the "clause meaning" or the "original public meaning" accords with the best theory of the "semantic meaning" of the constitution that is authoritative. When we say "the Constitution is authoritative" that is shorthand for "the semantic meaning of the constitution is authoritative" and that, in turn, is shorthand for "the clause meaning [or original public meaning] of the constitution is authoritative."
Doubtless there are other possible theories of the semantic meaning of the constitution. And I'm sure the Leiter has a theory or plausible range of theories. And I'm also sure that his has criteria for justified authority that pick out his theory (or that would justify a range of possibilities) but that fail to justify "clause meaning" or "original public meaning." But until these arguments are on the table, I am not quite sure what Leiter is asking for. And a caveat, Leiter may well have had more to say about this--and I'll be very interested in that as well.
Good posts all from Somin, Balkin, and Leiter. Read them!