There has been quite a bit of blogospheric discussion recently about the original meaning of the Fourth Amendment. Check out Randy Barnett's Akhil Amar's Originalist Reading of the Fourth Amendment and Orin Kerr's "Recovering the Original Fourth Amendment" & Kerr's Originalism and the Fourth Amendment as well as Jim Lindgren's Question About the Original Meaning of 4th Amendment? All three of these posts are thoughtful, articulate, and careful, but they got me thinking once again about recent discussions of originalism--in a variety of forums.
From the perspective of a constitutional theorist, I am frequently baffled, frustrated, and confused by the carelessness with which the theoretical foundations of debates about original meaning are articulated, both in the blogosphere and in contemporary constitutional scholarship. How can it be that the distinction between the various forms of originalism are still ignored? Can anyone really have missed the shift in originalist thinking from original-intentions originalism to original-meaning originalism? Most contemporary originalists believe that the relevant inquiry is into the original "public meaning" of the constitutional provision at issue. Hardly anyone thinks that the intentions, expectations, or purposes of the framer's are independely entitled to interpretive authority--although they may be evidence of original public meaning. (For more on this, see the Legal Theory Lexicon entry on Originalism.)
I was particularly confused by a comment on Barnett's remarks that was posted by Marty Lederman. Lederman quotes extensively from Carol Steiker's Second Thoughts About First Principles, 107 Harv. L. Rev. 820 (1994). Here part of Lederman's extensive quote:
My [Steiker's] puzzlement may stem partly from the much-discussed difficulties of forming any clear picture of what the "Framers" (or do we mean "ratifiers"?) can be said to have "intended" (or should we say "expected"?) about the Constitution. But only partly. Even if I were convinced that one could derive plausible versions of the Framers' intentions by viewing the Constitution's text in historical context, I would question the programmatic implications of those intentions. Why? First, almost no one, and certainly not Professor Amar, believes that we should be bound for all time by the specific intentions or expectations of the Framers about, say, precisely what kinds of searches are "reasonable" ones or precisely what sorts of remedies are required for violations of the Fourth Amendment. At some point, all but the most absolutist originalists formulate notions of the Framers' intent at some higher level of abstraction, a move that necessarily renders less significant even highly persuasive historical claims about more specific intentions. Moreover, the Fourth Amendment, more than many other parts of the Constitution, appears to require a fairly high level of abstraction of purpose; its use of the term "reasonable" (actually, "unreasonable") positively invites constructions that change with changing circumstances. (bold added for emphasis)
Steiker was writing in 1994. That was five year's after the shift to original-meaning originalism was discernable in Antonin Scalia's Originalism: The Lesser Evil (57 U. Cin. L. Rev. 849) (1989), but well before article's like Randy Barnett's An Originalism for Nonoriginalists from 1999. So it is not surprising that Steiker focuses on original-intentions originalism and makes arguments that are completely nonresponsive to original-meaning originalism--one would have had to follow the literature very closely to distinguish the two in 1994. But Lederman's comment was written today--August 19, 2006--and in response to a post by Randy Barnett--a leading theorist of original-meaning originalism & Lederman's target was Akhil Amar whose work is very clearly more textualist than intentionalist. So it is especially puzzling that Lederman would comment that the "place to start — and perhaps finish — is Carol Steiker['s article.] What is going on here? Does Lederman believe that Akhil Amar is (or ever was) an original-intentions originalist? Because that would be absurd, we have to assume that Lederman believes no such thing. Does Lederman believe that original-intentions originalism is theoretically more sound than original-meaning originalism? That seems unlikely, precisely because the criticisms to which Steiker refers are, in fact, very damaging to the intentionalist form of originalism. Is Lederman unaware of the shift form original intentions to original public meaning? That seems almost impossible--Lederman is a sophisticated and erudite constitutional thinker. So what is going on? As I say, I'm puzzled.
