This is the seventh of a series of posts on the "great debate" between originalists and living constitutionalists. In this post, my aim is to consider the question whether the original public meaning of the constitutional text is so underdeterminate that originalism does not meaningfully differ from living constitutionalism. Many of the ideas in the series are presented in greater depth in:
For a very short statement of the case for originalism, see:
This post addresses the following questions:
- Is the text of the constitutional radically indeterminate?
- If there are "construction zones" are they so large that originalism and living constitutionalism converge?
- How can the constitutional construction of underdeterminate provisions be squared with the rule of law?
- Does public meaning originalism suffer from a levels of generality problem?
The other posts in this series so far are as follows:
The post continues after the break.
Contemporary originalism is unified by two core ideas, the Fixation Thesis and the Constraint Principle. Many critics of originalism accept the idea that the communicative content of the constitutional text is fixed and that constitutional practice should be consistent with public meaning of the text but claim instead that originalism suffers from an indeterminacy problem. This argument is closely related to an idea that was much debated by legal theorists in the 1980s; we can call this idea "the Indeterminacy Thesis." As applied to the constitutional text, there are many different versions of this thesis, ranging from the very modest claim that the constitutional text underdetermines some constitutional questions to the very radical claim that the constitutional text is completely indeterminate--that is, any result in any constitutional case is consistent with the communicative content of the constitutional text.
We will consider the modest version of the indeterminacy thesis in a moment, but before we do that, it is important to understand why the radical version of the indeterminacy thesis is just plain wrong. One way to see this is via examples. If the radical indeterminacy thesis were correct, then the conclusion then one could argue that the State of New York is entitled seven Senators or that Congress could abolish the Supreme Court altogether or that Barack Obama is still the President of the United States. But no one thinks that these outcomes are consistent with the constitutional text.
Of course, proponents of the indeterminacy thesis are likely to say that their claim is more charitably interpreted as something short of radical indeterminacy. At this point it is useful to introduce some terminology that may clarify the stakes in the debate. Let us distinguish indeterminacy, underdeterminacy, and determinacy as follows (with reference to the constitutional context:
Constitutional Indeterminacy: the communicative content of the constitutional text would be indeterminate if that content were consistent with any conceivable result in every conceivable case.
Constitutional Underdeterminacy: the communicative content the constitutional text is underdeterminate if that content is inconsistent with some conceivable results in some conceivable cases.
Constitutional Determinacy: the communicative content of the constitutional text is determinate if that content is consistent with only one conceivable result in every conceivable case.
Given this terminology, it becomes apparent that the real question has to do with the extent of underdeterminacy. Originalism will be have "bite" if and only if underdeterminacy is moderate, with the original meaning of the constitutional text providing meaningful constraint in a significant number of constitutional cases.
One way to think about this problem is via the notion of a zone of underdeterminacy. Using the interpretation-construction distinction, we can call the set of issues or cases where the communicative content is underdeterminate the "construction zone."
If there are "construction zones" are they so large that originalism and living constitutionalism converge?
An opponent of originalism can accept all of the points made above, but then make the following move:
I agree that the constitutional text is not radically indeterminate. But in all the important cases that we care about, the construction zones are so large that originalism is not really distinguishable from living constitutionalism. For example, the phrase "equal protection of the laws" is open-textured and abstract. Any result that the Warren Court reached under that clause can also be reached by public meaning originalism.
This argument has a superficial appeal. In the abstract, the move to public meaning originalism and the interpretation-construction distinction are consistent with this move. But once we get down to constitutional particulars, we can see that it is very unlikely that this move can actually succeed in erasing the distinction between originalism and nonoriginalist living constitutionalism. We can see this by examining a set of simple examples. Of course, I cannot provide the full originalist case for my positions, but in each case, the position is plausible and can be supported by evidence of original meaning:
- The structural or "hard wired" constitution is largely determinate and important. Sandy Levinson is famous for emphasizing the idea that the most important provisions of the constitution are the core structural provisions. We have a Senate and a House, with highly determinate bright line rules that determine their composition. Bicameralism and the veto power determine what laws are properly enacted. We have a single President and not a presidential counsel. There is a Supreme Court, and Congress is empowered to create lower federal courts.
- The original meaning of a variety of particular provisions has real bite and important consequences. My favorite example is the Seventh Amendment right to jury trial. This provision both preserves the right to jury trial at common law and prohibits reexamination of jury verdicts other than by the means provided for at common law. There is a very strong case that this provision renders summary judgment unconstitutional and that it invalidates Rule 50(b) motions for judgment as a matter of law after the jury verdict is returned. I believe there is even a strong case that the Supreme Court's decisions in Twombly and Iqbal are invalid given the original public meaning of the Seventh Amendment.
- The original public meaning of the general and abstract clauses of the Constitution are very different than that which has been produced by living constitutionalism. For example, the Privileges or Immunities Clause of the Fourteenth Amendment was virtually nullified by the Supreme Court's decisions in the Slaughterhouse Case and Cruikshank. There is a debate among originalists about the meaning of this clause, but Randy Barnett, Chris Green, and others have argued that it guarantees a set of basic rights (whether grounded in natural right or common law) that must be provided to all citizens on an equal basis. On the other hand, a strong case can be made that the Supreme Court's interpretation of the Equal Protection Clause has departed substantially from the original meaning; thus, it is argued that the original meaning focuses on "protection of the laws" (such as protection from invasions for personal security and property rights). If this is correct, then the whole edifice of tiers of scrutiny that structures modern equal protection doctrine is incorrect.
These brief examples are offered to show that the move from the existence of construction zones to the conclusion that public meaning originalism has no bite has been made too quickly. The only way to show the impact of originalism is to actually engage in originalist scholarship about particular constitutional provisions. Although there are nonoriginalists who are sure that originalism can produce almost all of the outcomes associated with nonoriginalist living constitutionalism, I know of no actual originalist who holds that position. Jack Balkin does come close, but most originalists believe that his arguments about the meaning of several particular constitutional provisions (including the Commerce Clause and the Equal Protection Clause) are either implausible on the basis of the evidence or rest on an unduly thin conception of communicative content.
How can the constitutional construction of underdeterminate provisions be squared with the rule of law?
Nonetheless, it seems likely to be that there will be substantial construction zones at the end of the day. Even if these zones are not so large as to collapse the distinction between originalism and living constitutionalism, they create a problem for originalists if originalists cannot offer an account constitutional construction that is consistent with the underlying justifications for the Constraint Principle. Originalists have suggested several such accounts, but there is continuing disagreement about originalists on this issue. For the purposes of this post, we can focus on the default rules approach that is suggested by the work of Michael Paulsen and Gary Lawson. I say suggested, because the default rule that I am about to offer is not identical to the ones they offer. We might adopt the following default rule: when the constitutional text is underdeterminate, then defer to elected officials. This rule provides substantial restraint and clearly differentiates originalism from living constitutionalism. A different approach has recently been suggested by Randy Barnett and Evan Bernick, in their essay The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction.
The important point is that from the fact that there are construction zones, it does not follow that constitutional construction in cases of indeterminacy must adopt the methods of living constitutionalism. Of course, that is a possibility, but there are more constraining and restraining approaches that would clearly differentiate originalism from living constitutionalism.
Does public meaning originalism suffer from a levels of generality problem?
Another objection to original-intentions originalism is sometimes framed in terms of levels of generality and particularity. In fact, there is no such problem for original-public-meaning originalism. To see why this is the case, it is helpful to understand something about the origins of the levels-of-generality problem in contemporary legal theory.
Legal scholars have noted that the principle for which a case stands can be stated at various levels of generality, from a holding that is particular to the case at hand to one that is more abstract and would apply to a wider range of future cases. Similarly, in fundamental rights jurisprudence, the question whether a given right has been recognized by existing legal practice may vary with the level of generality with which the right is described. Legal practice has recognized a right to privacy (very general) but not a right to engage in sexual activity outside the confines of marriage (more particular). Likewise, Brest argued in 1975 that the framers’ intent could be stated at various levels of generality. And it is true that an action can be intentional under a variety of different descriptions; one way that such descriptions can vary is in terms of levels of generality. Thus, when I drank a cup of coffee while writing this response, it is true that I intended that action under all of the following descriptions: (1) drinking a beverage, (2) drinking coffee, (3) drinking Peet’s coffee, (4) drinking Peet’s Major Dickason’s Blend coffee, and (5) drinking a fiter-brewed cup of Peet’s Major Dickason’s Blend coffee. My action was intentional under all five of these descriptions, which vary in levels of generality from the very general beverage to the fairly particular filter-brewed cup of Peet’s Major Dickason’s Blend.
This fact about the relationship between levels of generality and intentions does not carry over to linguistic meaning generally. The meaning of the word coffee is not the same as the meaning of the phrase Peet’s coffee, which in turn is not equivalent to the meaning of the phrase Peet’s Major Dickason’s Blend coffee, and so forth. Originalism is concerned with the linguistic meaning of the Constitution. Each operative unit of meaning (a word, phrase, or whole clause) can be general or particular. The Constitution uses the term State, which is general and the name Delaware (which is a state) but is (as compared with State) particular. The Constitution uses the phrase “legislative power,” which is general, and also the phrase “to establish Post Offices and post Roads,” which is more particular. Of course, general provisions can have particular applications. For example, the power to establish a post office includes the power to establish a post office in Champaign, Illinois. But from that fact it does not follow that the linguistic meaning of the phrase to establish post offices and post roads might be to establish a post office in Champaign, Illinois. The linguistic meaning of the phrase is the more general meaning. To think otherwise would involve a conceptual mistake—confusing linguistic meaning with application meaning.
In sum, there is no levels-of-generality problem for original-meaning originalism or for any form of originalism that focuses on the linguistic meaning of the constitutional text. Purposivism—the theory that the meaning of the Constitution is the same as the purposes for which it is adopted—does suffer from a levels-of-generality problem, but purposivism should not be confused with any sophisticated contemporary form of originalism.
Originalists must offer an account of underdeterminacy and provide methods of construction for cases in which the constitutional text is underdeterminate. But based on the arguments as they have been advanced so far, I think it is clear that public meaning originalism would lead to substantially different results from those that permitted by many of the leading forms of nonoriginalist living constitutionalism. As we have already seen, in prior posts, this is clearly true when we compare public meaning originalism to the constitutional status quo--which is best understood as a form of Constitutional Eclecticism.