Image: BCFC / Shutterstock.comRecently, Jack Balkin wrote a critique of Original Methods Originalism, the interpretive approach to original meaning that John McGinnis and I have developed. His approach was based on the new book by Jonathan Gienapp, The Second Creation, which argues that it took some time after the Constitution’s ratification for the interpretive rules governing the Constitution to be established.
Jack wrote the following:
Gienapp’s book might have important critical lessons, however, for original methods originalists. Original methods originalism argues that we should use the same interpretive methods that people used at the time of adoption, because those methods are part of the “law of interpretation” that applies to constitutions, or, more controversially, because these methods are part of the original meaning of the constitutional text and are incorporated by reference.
Original methods originalism is based on the assumption that there was a general consensus among well-trained lawyers about how to interpret the Constitution at the time it was adopted. This assumption, Gienapp explains, is not grounded in historical fact. Like many other historians of the founding, Gienapp points out that there was little agreement about what kind of legal text the Constitution was, and so there was little agreement about which set of interpretative principles applied to it.
This critique by Balkin was based on a false premise: original methods does not assume a general consensus about how to interpret the Constitution at the time it was adopted. Jack was kind enough to allow us to write a response on his blog, Balkinization. We wrote:
But we have never claimed that there was such a general consensus. And, in fact, we have disclaimed relying on that consensus. In short: original methods works both interpretively and normatively whether or not there was a consensus on interpretive methods.
We briefly documented how our earlier writings had never asserted a consensus and in fact had recognized that there were disagreements about the interpretive rules.
We then explained how “original methods works as both an interpretive approach and a normative theory” even if there was disagreement about the original interpretive rules:
The interpretive approach works most simply if there was a consensus as to the interpretive rules. And to the extent that there was a consensus as to some of the interpretive rules – something we do believe existed – then of course one would follow those interpretive rules.
But the interpretive theory still works even if there was a disagreement about the correct interpretive rules. In a recently delivered paper, Unifying Original Intent and Original Public Meaning, we argue that one should apply the interpretive rules that people at the time would have employed. If there was disagreement as to those interpretive rules, one should look to the methods that people at the time would have used to determine what the correct interpretive rules were.
We then added an important point:
Where there was disagreement about which interpretive rule to apply, they would choose the interpretive rule that was better supported than the alternative rule. Even if the support for two opposing interpretive rules were relatively equal, they would choose the rule that had greater support – what we call the 51/49 rule – a rule we have previously applied to resolve ambiguities in the text.
We concluded the post with a discussion of the normative theory underlying original methods:
In our view, the supermajoritarian procedure for enacting the Constitution made it likely that the document was a good one. And to enforce the meaning of that document, we should employ the interpretive rules that people at the time would have employed. Otherwise, we would not secure the meaning that they enacted.
While the normative argument works more simply if there was no disagreement about the interpretive rules, it still works if there was disagreement. The state ratification conventions would have evaluated the document based on a judgment as to what its meaning was. If there was uncertainty about what the meaning was or the interpretive rules that would be applied to it, then that would probably reduce the net benefits of the document they were evaluating. Ultimately, the ratification conventions would have to decide whether the expected net benefits of the document outweighed the uncertainty that they had about its meaning.
In some cases, the conventions decided that this uncertainty needed to be clarified, as many ratifiers did when they insisted on a Bill of Rights as a condition of their supporting ratification. But in all cases, a vote for ratification meant that the ratifier believed the expected net benefits of the document outweighed its uncertainty.
The problem with Original Methods Originalism is not the theory, it is the conclusions. What were those original methods of interpretations? I think there are a lot of disagreement about that. Furthermore, sometimes you had conflicts between the various cannons of interpretation, which rules have precedence in a conflict? I think you will find disagreement about what the founders thought of that as well. A lot of it has to do with how much to incorporate the common law understanding and how much the constitution purposefully differed from the common law. Also some disagreements on default rules like the rule of lenity. Clearly the rule applies, but when and how when other rules potentially conflict?
How about if we just start practicing originalism instead of debating it?
Puffery is apparently more fun than practice.
A major problem with originalism, in my view, is that we have considerable evidence regarding the views of some of the founders, usually defined as the authors of the Constitution or the people who ratified it (the true adopters), but our knowledge of other adopters is very sketchy at best. At least some of the founders also shaded or misrepresented their opinions during the ratification process; the reason for creating a bicameral Congress, for example, had nothing to do with checks and balances. Moreover, either approach (authors or adopters) neglects the views of many other Americans that were involved in the building of our nation, including our governmental apparatus. Our knowledge of many of their views is even sketchier. In addition, originalism is rooted in compact/contract theory, which has numerous flaws. The theory, in its more ecstatic versions, overlooks the fact that the vast majority of the country had no voice in the drafting or adoption of the Constitution. Moreover, modern views of contracts generally hold that they are not binding on people who have not agreed to them; no one living today agreed to any provisions of the Constitution. Political theorists have sometimes tried to finesse that issue, but no one has resolved it very well.
David:
1) good Luck in today’s Apple Cup. Go Cougs!!!!
2) interesting point, re: consent. Jaffa once tried to finesse the issue of consent (New Birth of Freedom?) with a varian of implied / passive consent. I could not “buy it.”
Still, it is unlikely that any proposition, especially any political proposition would receive unanimous consent.
What is to be said, or done about that?
3) curiously enough, numerous polls (for whatever they are worth) indicate that Americans approve of and hold dear our Constitution by a rather large margin.
4) It is debatable that “a large majority” had no say in the drafting and adoption of COTUS. True as to drafting – then again that is also true of any piece of Legislation, and all the more so for Administrative Rules and Regs. However, there was extensive and “informative” debates across the Colonies prior to the State Legislatures voting to adopt the Constitution and it both anecdotal and historical evidence indicates that the majority of townships, villages, etc participated in debates / discussions, read the Federalist Papers and Anti_Federalist commentaries, newspapers, etc prior to electing their chosen delegates to the ratification assemblies.
Perfect – no! Then again, how many citizens today are as actively involved as were our colonial predecessors.
Anyway, GO COUGS!!!
David Nice:
You write: In addition, originalism is rooted in compact/contract theory, which has numerous flaws. The theory, in its more ecstatic versions, overlooks the fact that the vast majority of the country had no voice in the drafting or adoption of the Constitution. My book with McGinnis Originalism and the Good Constitution addresses this argument head on. Sadly, many people don’t know about our response (although many do).
You also write: Moreover, either approach (authors or adopters) neglects the views of many other Americans that were involved in the building of our nation, including our governmental apparatus. The question is what they wanted, but what they enacted. That turns on the language of the document and its meaning. These should not be decided based on what particular framers said. The latter is at best weak evidence.