Solum & Bennett Debate Originalism:
The Northwestern Law Review has a new online debate format called Colloquy. Former-NU Law dean Bob Bennett has a very interesting "Dialogue on Originalism" with University of Illinois law professor Larry Solum of Legal Theory Blog here. This exchange is a highly accessible way to grasp the difference between original framers intent originalism, and original public meaning originalism. There is no way to summarize the substance of the exchange here, but here is a tease:
Unlike Professor Bennett, I believe that theories of constitutional meaning deeply implicate the philosophy of language—or to put it more prosaically, interpretation and meaning, like love and marriage, go together like a horse and carriage. How can we answer the question, "What does the constitution mean?," without a theory of meaning? Such a theory provides the criteria by which the rightness or wrongness of answers to questions of constitutional meaning can be judged. And even when these questions are answered without an explicit theory, it will always be the case that some implicit theory will be doing work behind the scenes. And once the implicit theory is made explicit, it may turn out to be wrong, confused, or even self-contradictory. . . .

There is a larger point to be made about this exchange. The formulators of early versions of originalism made a mistake that is very much like the mistake that Professor Bennett has made in this exchange. They formulated a theory of constitutional meaning that could not work, because it was inconsistent with fairly elementary truths about meaning in general: the early originalists made serious philosophical errors. Original-meaning originalism—which focuses on the public meaning of the text (which I have called "clause meaning")—avoids those mistakes. Of course, original-meaning originalism does not have the same "normative punch" that early originalists mistakenly attributed to intentionalism. Jack Balkin has made that point clearly and forcefully in his recent work. In my experience, many constitutional theorists haven't yet grasped that there has been a sort of Copernican revolution in constitutional theory. Many constitutional scholars assume that "originalism" means "intentionalism," and that talk about "original public meaning" is just a minor and insignificant tweak in originalist theory. Moreover, there is an implicit assumption that the "new originalism" is intended to serve the same political agenda as the "old originalism." These assumptions are simplistic and, for the most part, false. Original-meaning originalism is not a close cousin of intentionalism—it is a completely different theory. And the political agendas of the new originalists are as diverse as the political views of Randy Barnett and Jack Balkin—hardly identical to those of Robert Bork or Raoul Berger.
Read the whole thing.

(civil comments only please)
Rich B. (mail):
It seems to me that any piece of law (either statute or Constitution) can be written at various levels of either generality or specificity. You can legislate that a person has a right to "trial by a jury of 12 men in all criminal cases", or you can say that a person has a right to "due process".

So, while I support the concept of Originalism in relatively specific statutes, I think that applying it to whether "freedom of speech" covers nude dancing or "due process" covers the right to non-gerrymandered electoral districts is missing the Point.

The Original Meaning (intent, public meaning, whatever) for the most general provisions is, "I am stating a lofty goal that we can all agree on, although we probably won't agree with too many specifics thereunder. We leave that to future community standards."

Solum and Bennett both make a lot of sense if we imagine that they are debating the interpretation of Section 1234.56(a)(1)(B) of the Civil Rights for Left-Handers Act of 2007. When debating the Amendments to the Constitution, though, they are both working from the assumption that the Clauses are "meant" to have specific "meanings" that can be determined through whatever method each prefers. That, in my opinion, is starting with Step 2.
11.30.2006 11:22am
Jeremy T:
Reading about originalism, thinking about "Married with Children." Ahh, I love the Volokh Conspiracy!
11.30.2006 11:49am
From Solum's conclusion:

Original-meaning originalism is not a close cousin of intentionalism—it is a completely different theory. And the political agendas of the new originalists are as diverse as the political views of Randy Barnett and Jack Balkin—hardly identical to those of Robert Bork or Raoul Berger.

Modern judges routinely disagree about what legal phrases drafted in the 20th century mean. Using this week's Supreme Court docket as an example, there is substantial disagreement over what "obvious" means in the context of the Patent Act, and what "air" means as to the Clean Air Act. Conceding that there is of course a distinction between statutory law and constitutional text, I'm nevertheless puzzled why there would be a single public meaning of thinks like "cruel and unusual punishment" or "speech" or "due process of law" at any point in history, let alone whether one would be ascertainable at a time two centuries in the past.

Furthermore, Solum and Bennett didn't appear to touch on what I see as the most interesting problem concerning the shift from original-intent to original-meaning: does it actually matter? Are there examples of how such a shift produced different results? It was my understanding that the best and most reliable sources for late 18th century views on the Constitution were the words of the framers; if we disregard those, what remains?
11.30.2006 12:00pm
Nom (mail):
Just wanted to point out that Judge Bork is an original meaning originalist, not an origianl intent originalist (this is clear in his 1990 book The Tempting of America). Not sure if the piece meant to insinuate that he was an original intent originalist, but seemed to do so by lumping him in with Raoul Berger (who is definitely an original intent originalist).
11.30.2006 12:34pm
As President Clinton might have put it, it all depends on what your definition of "means" means.
11.30.2006 12:42pm
magoo (mail):
Justice Story, Judge Cooley, James Madison, and many others discussed the distinction between subjective intent and objective public meaning long ago, and they came down on the side of the latter. The idea that modern public-meaning originalists have worked a "Copernican revolution" is a myth propagated by those who fancy themselves the new Copernicuses.
11.30.2006 1:30pm
JunkYardLawDog (mail):
Should that be Copernicii ??

Asks the "Dog" ;)
11.30.2006 1:59pm
Omar Bradley (mail):

While in theory the difference between the two originalisms may be great, in practice it really isn't. I can't think of too many examples where using one approach or the other leads one to a different conclusion.

There are some, such as the segregation cases. But even those have generated massive debate. And once you go to the more general levels of applicability, you open yourself up to the discretion that originalism was supposed to prevent.

The whole debate over incorporation and the fact that thousands of pages worth of material and thousands of quotes have been used on both sides of the debate and there's still no clear winner and both sides continue to argue for their approach just shows us that history and resort to original meaning can only take us so far.

And public meaning originalism, pace Magoo, is no revolutionary idea, it was the established, standard rule of construction in the late 18th century. If you read Hamilton's Bank opinion of 1791 where he talks about using the established rules of contruction, he was pretty much referring to using the public meaning of the text in its most reasonable manner. Ironically, it was Jefferson and Madison in their arguments that referred to a more intentionalist approach. Although, in other debates, Madison did use the non-intentionalist appraoch.

Basically, the point is that the framers themselves utilized arguments and theories of interpretation that tended to best suit their policy choices. They weren't exactly faithful to one method of interpretation and they had no qualms about interpreting the text to mean what they wanted it to mean or thought it should mean based on what was the best policy.

If arguably the two most influential and most oft cited framers in Madison and Hamilton could vehemently disagree on the true meaning of the Constitution when it came to so many big debates mere years after it was ratified, I don't think Judges today can be expected to agree more than 200 years after ratification.

It seems that to be a true practitioner of public meaning originalism one has to be not only an expert legal scholar with years of law school and judging experience, but also a PhD Historian. I don't think it was ever intended or understood by anyone thet Judges would be both legal and historical experts.

Even Justice Scalia in his Lesser Evil essay concedes that the Judge is not really suited to the task of originalism and that it is more the historian's job.

Reading books by such acclaimed historians such as Wood, Bailyn, Pocock, Foner, Rakove, Commager and others, it's clear that on most historiacl questions there is still a wide range of debate and decisive conclusions are unlikely to ever be accepted.

In a famous DC Ct opinion Bork and Scalia vehemently disputed the original meaning of free speech(I forget the name of the case). If the two foremost orginalists can't even agree on what the 1st amendment means and if Scalia some years later in McIntyre conceded that the original meaning of the 1st amendment is "unclear", then what real good is it in terms of doing its job of restricting discretion?

I think originalism is a useful tool and certainly interesting from an academic pov, but when it comes to deciding cases, where there are hundreds of years of precedent and hundreds of cases worth of precedent, and judge made rules and procedures like strict scrutiny, rational basis review, standing rules, etc..., it can only take you so far.
11.30.2006 2:21pm
Chris 24601 (mail):
I agree that the distinction between original (intended) applications and original meaning is not a new one at all. Recall Euclid v. Ambler Realty (1926): "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

Amen on the need for philosophy of language: would be nice to see more Frege & Carnap, though, and not just Grice.

The basic idea that an emphasis on original meaning is meant to highlight is that the Constitution isn't just a historical transaction, it is a historically-situated text. At the same time, it's not a freely-morphable wax nose: it's a historically-situated text.
11.30.2006 2:36pm
Great conversation here. Gotta love VC.

Re: Omar Bradley--What a grand legal mind for a soldier. And a dead one, at that. Also: I am a PhD historian, and not a lawyer. So apologies. But the primary question, to my mind, is epistemological. Original /intent/ is certainly unknowable. Anyone who has tried to write biography can tell you that.

But the other pole of the debate also has serious epistmological problems, right? One can assert that the Constitution evolves, by which they mean not the text, but its interpretation--its meaning for America--evolves over time. It is "situated" in a new "historical context." (Getting the "" out of my system. Like I said, I have a PhD.)

But if we conceede this, as I do, how is a judge or prof to be trusted when he claims to know what the new context of the text is? How can he claim to /know/ what penumbras have emanated, and how far? This presupposes a knowledge of history, sociology, and culture that would make Erasmus envious.

And such knowledge-claims are no less suspect than claims to know what was in Hamilton's mind in 1792. This is how I interpreted Roberts during the hearings: Judges ought to be jurisprudentially humble, because they /need/ to be epistemologically humble.

The question then becomes how one can have confidence that a change in constitutional interpretation accuratley reflects broader changes that have occured in our nation since the Founding. Does David Souter--a recluse who makes a point of not reading newspapers--have some gnostic epistemological gifts that the rest of us lack? Does Sunstein? Tribe?

If not, then I'm led to think that elected bodies relect the state of the nation, and thus the context for constitutional meaning, better than the courts. Not that they are a mirror to the soul of America. But they're the best we have.

Original meaning cannot be nailed down. But it can be known better than intent, since it manifests itself in subsequent history. But both conservative intentionalism, and liberal and conservative gnosticism (e.g., Thomas) are not convincing approaches.
11.30.2006 3:34pm
John (mail):
I'm not familiar with these terms. Suppose you took the view that the Constitution was trotted around the various states by people looking to gain votes for it. Arguments were urged; and statements were made during the campaign telling people what this thing would do, and what its clauses meant (for example, that adopting it would mean that women could choose to have abortions, and other likely points). Anyway, based on this debate, the votes were taken and the thing was agreed to.

If you believe you should look to what people thought (or were told) when they voted for the Constitution, without regard to what was inside the head of Madison et al., are you an "originalist"? An "intentionalist"? Or what? (And yes, I know you are a naif.)
11.30.2006 4:19pm
Omar Bradley (mail):
If you believe that, you're just normal. Looking at the text, and interpreting it based on how it would be reasonably understood at the time, was the established method of interpretation.

The problem with what people were told or what the ratifiers thought they were ratifying is that it's just as subjective. Even Madison and Hamilton both conceded that the Federalist was just a very good series of propaganda.

It was basically meant to influence ratification in NY, and secondarily in VA, and was meant to answer the parade of horribles that guys like Yates were raising. So you have to take it with a grain of salt.

The other thing to keep in mind is that the debates in the states were mostly perfunctory and each state had its own dynamic when it came to ratification and different concerns and the like that make arriving at some true objective meaning very difficult.

You can say, this ratifier thought X, but other ratifiers thought Y, others thought Z etc... And the ratifiers themselves were but a miniscule portion of the community as a whole and who knows what they thought it meant, or if they even pondered it in any meaningful way?

That said, it is possible, I think, to EXCLUDE certain meanings as possibilities. And there, I think is where originalism can be perhaps its most helpful. IE, we can't say for sure what the original meaning of commerce was, but growing wheat on one's farm wasn't it. Or, we can't say for sure what free speech meant but online porn wasn't covered by it. Or, we don't know for sure what everyone thought due process meant, but the idea that it meant that certain fundamental rights require strict scrutiny and narrowly tailored statutes to meet compelling interests probably wasn't too high on the list.

Originalism can, however, give us a range of possibillities, that when combined with precedents and other case law, will usually lead to a sensible outcome.

So, originalism is useful, but as Boyce pointed out in a law review article, because of the hundreds of years of precedent it's very difficult to just keep going back to some utopian original meaning when the entire legal system has become innundated with certain ideas and decisions that would be very difficult ot undo.

It's also ironic that most originalists tend to find that the origianl meaning nearly 100% corresponds with their own policy choices. Isn't that amazing?

I've often asked people to name 3-5 SC decisions where they agree with the decision even though it goes against their policy preference or where the original meaning contradicts their policy preference and most people are unable to name even that few number of cases. If the original meaning is 100% on par with one's own views ca 2006, chances are, it's not the true original meaning.

The bottom line is that SCOTUS Justices have immense power and that there is enough evidence and precedent out there to support either side in a given case. Ultimately, Justices are held accountable by the political process and Congress and the appointment power. The idea that there is some magic elixir out there which will end judicial activism or end liberal decisions is folly.
11.30.2006 5:25pm
John (mail):
Omar--thanks. That was actually quite helpful.
11.30.2006 7:53pm
Omar Bradley (mail):
One of the more notable critiques of Originalism is that of SC Justice and noted Constitutional scholar and founder of Harvard Law School Joseph Story. In response to a quote of Jefferson's that has been cited approvingly by originalists like Scalia and Bork, Story said:

The second canon is, " On every question of construction [we should] carry ourselves back to the time, when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying, what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed."

Now, who does not see the utter looseness, and incoherence of this canon. How are we to know, what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail?

Besides; of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done, as to the other eight states? What is to be done, as to the eleven new states, which have come into the Union under constructions, which have been established, against what some persons may deem the meaning of the framers of it?

How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed. Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few now living, simply because they were actors in those days, (constituting not one in a thousand of those, who were called to deliberate upon the constitution, and not one in ten thousand of those, who were in favour or against it, among the people)?

Or are we to be governed by the opinions of those, who constituted a majority of those, who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain, what that sense was?

Is the sense of the constitution to be ascertained, not by its own text, but by the "probable meaning" to be gathered by conjectures from scattered documents, from private papers, from the table talk of some statesmen, or the jealous exaggerations of others?

Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavouring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it?

Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed, as to " the probable meaning " of the framers or of the people, what interpretation is to be followed?

These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the "probable meaning" of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own?

The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results; but they can never be conclusive. The Federalist denied, that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?

Story's critique is relevant still today.

Both Hamilton and Madison, among others such as Gerry, Randolph, Wilson, Jay and Marshall also had similar quotes arguing against original intent and original meaning.
11.30.2006 8:27pm
How can we answer the question, "What does the constitution mean?," without a theory of meaning? Such a theory provides the criteria by which the rightness or wrongness of answers to questions of constitutional meaning can be judged. And even when these questions are answered without an explicit theory, it will always be the case that some implicit theory will be doing work behind the scenes. And once the implicit theory is made explicit, it may turn out to be wrong, confused, or even self-contradictory. . .
Debates about the nature of meaning, and the meaning of meaning, make my head hurt.

I am just glad that our constitution was not written in Latin or Ancient Greek.

I mean, really glad.
11.30.2006 9:14pm