This is the second in a series of posts commening on How Determinate is Originalism in Practice? by Michael Dorf. Part One of my comments is available at this link. In that post, I argued that Dorf's post seemed to conflate three distinct ideas: (1) the determinacy of the constitutional text, (2) the constraint required by originalist constitutional theory, and (3) the degree of compliance with originalism that can occur in practice. In this post, I want to say something about the first of these three ideas. Here is what Dorf has to say about originalism and the determinacy of the constitutional text.
Partly in response to withering criticism, originalism morphed over time, so that most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text, rather than the concrete intentions and expectations of its framers and ratifiers. And because the original public meaning of the more open-ended clauses of the Constitution tends to be, well, open-ended, original-public-meaning originalism tends to be substantially less determinate than (at least the claims that have been made for) old-style original intent. Originalists solved the problem of seemingly having to support a view of the Constitution that allows official sex discrimination and other unacceptable practices by sacrificing determinacy.
In my prior post, I argue that determinacy is actually not the core of Dorf's argument and that his real point is about compliance. But I also think that what Dorf says about determinacy is partially incorrect and misleading. I will address compliance in a future post, but in this post I will show that public meaning originalism need not lead to unconstrained judging produced by the underdeterminacy of the constitutional text.
Correcting Dorf's Characterization of the Current State of Originalist Theory
Although most contemporary originalists are "public meaning originalists," Dorf's comment that "most people (and nearly all academics) who call themselves originalists now claim that what binds is the original public meaning of the Constitution's text" is incorrect. As a public meaning originalist, I wish that Dorf were right, but in fact there are significant numbers of academic originalists who affirm versions of originalist theory that differ from public meaning originalism. Here is a quick rundown:
- Original methods originalism is the view that the original meaning of the constitutional text is best understood as the meaning that the text has when it is interpreted using the methods of legal interpretation that prevailed at the time each provision was adopted. John McGinnis and Michael Rappaport are the most prominent advocates of this position.
- Original law originalism is the view that was in force at the time the original constitution was adopted and those changes authorized by that law that is binding today. This version of originalism focuses on the legal content of constitutional law and not the communicative content of the text. William Baude and Stephen Sachs are associated with this view.
- Original intentions originalism in most sophisticated current form is the view that it is the communicative intentions of the authors of the constitution that is binding. Larry Alexander defends this position, and Richard Kay adheres to a slightly different view of original intentions originalism.
I believe that the view that Dorf is actually referring to is the version of originalism held by one (possibly a few) originalist--Jack Balkin, who calls his view "living originalism." For reasons that I will explain below, public meaning originalists other than Balkin do not endorse a form of originalism that results in indeterminate constitutional meaning that authorizes discretionary decisions by judges about the content of constitutional doctrine. Balkin's version of originalism lead to interpretations of many constitutional provisions that are "open textured." Indeed, that feature of Balkin's theory may well be responsible for further developments in originalist theory that aim to show that Balkin is incorrect and that original meaning is more determinant than Balkin acknowledges. For example, McGinnis and Rappaport argue that original methods originalism produces a substantially determinate constitutional text.
Public Meaning and Underdeterminacy
Many constitutional provisions are framed in language that is general and abstract. For example, the constitutional text uses the phrases "cruel and unusual punishment," "unreasonable searches and seizures," and "equal protection of the laws." The contemporary understanding of these phrases does support Dorf's view--that they are "open ended" and hence "substantially less determinate." But it is not clear that the original meaning of the phrases is as underdeterminate as the contemporary meaning. John Stinneford's work on the Eight Amendment suggests that the original meaning of "cruel and unusual" is actually quite thick--as does Laura Donohue's work on the Fourth Amendment. Many originalists believe that the original meaning of the Equal Protection Clause was not a general principle of political, economic, and social equality, but was instead about the "protection of the laws," essentially a requirement that all persons (including the former slaves) receive the same protection for their persons and property as white citizens receive. My own view is that there are a very few open-textured constitutional provisions, but that the indeterminacy of the original public meaning of the constitutional text has been greatly exaggerated.
Originalism and the Construction Zone
But even if it is the case that the degree of constitutional underdeterminacy has been exaggerated by Dorf and others, I believe that some significant underdeterminacy exists. I have used the phrase "construction zone" to describe those constitutional issues where public meaning does not fully determine the legal content of constitutional doctrine. Some critics of originalism have seized on this fact and then argued that this means that originalists believe that judges have unfettered discretion to read their own ideological views and policy preferences into the most important constitutional provisions. But that is not the position that most originalists take.
Originalists who acknowledge some degree of underdeterminacy must articulate a theory of constitutional construction to handle these cases. One possible approach is adopt a set of default rules that resolve cases in the construction zone: for example, some originalists may adopt a default rule of deference to democratic institutions when the constitutional text employs open-textured or irreducibly ambiguous language. This approach, which is suggested by the work of Michael Paulsen and Gary Lawson, would eliminate judicial discretion in the construction zone. Another approach has been suggested by Randy Barnett and Evan Bernick in their work-in-progress The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction; their approach also aims to cabin discretion in the construction zone.
One final point about the construction zone. Constitutional construction is the activity that determines the legal effect to be given to the constitutional text. Constitutional interpretation is the activity that discovers the communicative content (roughly linguistic meaning) of the text. Originalists believe that constitutional construction should be constrained by the text. When the communicative content of the constitutional text answers a constitutional question, judges and other officials should consider themselves bound by the text. In the construction zone, where the communicative content does not fully answer a constitutional question, some method of construction must be employed. Originalist theorists ought to justify their approach to construction zone, and such justifications must be normative. But from the fact that methods of construction should be justified normatively, it does not follow that judges should be free to pursue their own normative agendas. The normative justifications for originalism (legitimacy and the rule of law) will counsel methods of construction that minimize judicial discretion and forbid judges from deciding specific constitutional issues on the basis of the judge's ideological views and political preferences.
