This is the Part II of a series of posts on Heller and Originalism. The other posts in the series, so far are:
This post addresses the question: where did the constitutional theory articulated by the majority in Heller come from? How did "original public meaning" originalism emerge in the discourse of constitutonal theory?
Original Intentions Originalism
One way to start our story is with Robert Bork, William Rehnquist, Raoul Berger and Edwin Meese. In 1971, Robert Bork wrote Neutral Principles and Some First Amendment Problems, the article that might be considered the opening move in the development or contemporary originalist theory. In 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers. In 1977, Raoul Berger wrote Government by Judiciary, which argued that the Supreme Court’s interpretations of the Fourteenth Amendment to the United States Constitution were contrary to the original intentions of its framers. In 1985, then Attorney General Edwin Meese put originalism on the political agenda in a well-publicized speech before the American Bar Association. Meese’s speech included the following passage:
In reviewing a term of the Court, it is important to take a moment and reflect upon the proper role of the Supreme Court in our constitutional system. The intended role of the judiciary generally and the Supreme Court in particular was to serve as the "bulwarks of a limited constitution." The judges, the Founders believed, would not fail to regard the Constitution as "fundamental law" and would "regulate their decisions" by it. As the "faithful guardians of the Constitution," the judges were expected to resist any political effort to depart from the literal provisions of the Constitution. The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.
Bork, Rehnquist, Berger, and Meese implicitly endorsed what we now call “original intentions originalism,” the view that constitutional interpretation should be guided by the original intentions of the framers. Neither Meese nor Berger explicitly considered the distinction between normative and semantic versions of originalism, and none of them seems to have been aware of the possible divergence between original intentions and original public meaning. Perhaps they assumed that it was obviously true that the semantic content of the constitution was given by the intentions of the framers. Alternatively, they might have viewed originalism as primarily a normative theory. It may be that the best explanation is that they did not grasp the distinction, and hence that their claims are ambiguous, sliding between the normative and the semantic, intentionalism and textualism.
The Misconceived Quest & the Original Understanding of Original Intentions
Following Berger’s book, but five years before Meese’s speech, Paul Brest wrote The Misconceived Quest for the Original Understanding (one of the most cited articles on constitutional theory ). Brest’s article advanced a variety of criticisms of original intentions originalism, including: (1) the difficulty of ascertaining the institutional intention of a multi-member body in general and the particular problems associated with identifying the intention of the members of Philadelphia Convention and the various state ratifying conventions in the case of the original constitution and of Congress and the various state legislatures in the case of amendments, (2) the problem of determining the level of generality or specificity of the framers’ and ratifiers’ intentions, (3) the problem of inferring intentions from constitutional structure, (4) the difficulty of translating the framers’ and ratifiers’ beliefs and values given changes in circumstances over time, (5) the problem of the democratic legitimacy, i.e., that the Constitution of 1789 was drafted and ratified without the participation of women and slaves, (6) the problem of instability, that an inflexible constitutional order cannot adapt to changing circumstances. Brest had much more to say, and there were many other critics of originalism, but this list is sufficient to illustrate the reception that originalism received from constitutional theorists in the late 1970s and early 1980s.
Brest also raised the problem of the framers’ and ratifiers’ interpretive intentions, and his remarks anticipated Jefferson Powell’s 1985 article, The Original Understanding of Original Intent. The premise for Powell’s article was the assumption that that original-intentions originalists believed that the framer’s themselves expected that the constitution would be interpreted to conform to their intentions. Although Powell conceded that there were references to “original intention” and “intent of the framers” in the constitutional discourse of the founding era, those phrases did not represent an early version of original-intentions originalism. Instead, “The Philadelphia framers’ primary expectation regarding constitutional interpretation was that the Constitution, like any other legal document, would be interpreted in accord with its express language.” Both the evidence for Powell’s thesis and its implications are controversial, but its effect on scholarly opinion was profound. The strongest implication would be that original-intentions originalism is a self-effacing theory: the theory requires that the framers’ intentions regarding interpretation be respected, but those intentions require that the framers’ intentions be disregarded.
Brest and Powell were hardly the only critics of original-intentions originalism, but their arguments, combined with others, helped form the scholarly consensus of the era. That consensus could be summarized as the claim that the original-intentions of the framers could not serve as the basis for a viable theory of constitutional interpretation and construction.
Original Understanding of the Ratifiers
During this period, the originalism debate took a brief detour into a variant of original-intentions originalism—one that emphasized the understandings or intentions of the ratifiers (either the state ratifying conventions understood as corporate bodies or of the individuals who attended the ratifying conventions and voted in favor of ratification). As Charles Lofgren wrote, As a modern student of Madison asks, ‘Why should we assume that those who merely ratified the Constitution grasped its meaning better than those who wrote it-or those who have since seen how it works in practice?’ The answer from an ‘intentionalist’ perspective is that whether the ratifiers better grasped the instrument's meaning is beside the point; rather, how the ratifiers understood the Constitution, and what they expected from it, defines its meaning. The act of ratifying cannot be dismissed with the adverb ‘merely.’ We need not tarry long over this twist in the debate.
The move to ratifiers understanding or intent is best understood in conjunction with popular sovereignty as a justification for originalism. The ratifiers (rather than the framers) could plausibly be viewed expressing the political will of “We the People.” But all of the problems that attended the equation of constitutional meaning with framers’ intent seem to attach to ratifiers’ intent, but with respect to the latter type of intent, evidence may be even more difficult to obtain and the problems of group intention (of multiple conventions with multiple members) even more confounding. To the extent that the ratifiers’ understanding is rooted in the public meaning, the emphasis on ratifiers is merely a way station on the journey from original intentions to original public meaning.
Original Public Meaning and the New Originalism
This sets the stage for what is sometimes called “the New Originalism” and is also labeled “Original Public Meaning Originalism.” Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role. As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.” The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson with Steven Calabresi as another “early adopter.” The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.
Randy Barnett and Keith Whittington have played prominent roles in the development of the “New Originalism.” Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways. For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason). This distinction explicitly acknowledges what we might call the fact of constitutional underdeterminacy. With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.
Heller and the New Originalism
And this brings us to the Supreme Court's decision in Heller. Justice Scalia's opinion for the majority unmistakably adopts an "original public meaning" framework:
In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
By contast, Justice Steven's opinion focuses on the intentions or purposes that animated the adoption of the Second Amendment. Justice Stevens argues that the purpose of the Second Amendment, reflected in the prefactory clause, was the protection of state militias against federal interference. Although Justice Stevens, unlike Justice Scalia, does not lay the theoretical premises of his opinion bare, it is clear that his question is for the intentions of the framers. (In this respect, footnote 28, slip op. p. 27, is revealing: in this footnote, Stevens criticizes Scalia for relying on sources that are not relevant to "intent of any provisions drafters.)
Justice Breyer's opinion has little to say about original intentions or original meaing. He begins by stating, ""In interpreting and applying this Amendment, I take as a starting point . . . [that the] Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred." Instead, the focus of his opinion is entirely what New Originalists would call "constitutional construction." Breyer is concerned with the questions that the semantic content of the Second Amendment does not answer. These questions include: (1) What are the borders of the right to possess and carry weapons? (2) What constitutes an "infringment" of that right? (3) What is the proper methodology or test for answering these questions?
In a subsequent post, I will explicitly address the New Originalist distinction between constitutional interpretation and constitutional construction and its implications for Heller. In this post, I want to emphasize a different point. Justice Breyer chose not to contest the basic assumption that the Court was bound by the original public meaning of the Clause--at least in the absence of controlling precedent. Of course, "choosing not to contest" is not the same as "conceding." But it is nonetheless striking that the phrase "living constitution" appears in none of the Heller opinions.