• About
  • Contact
  • Staff
  • Home
  • Blog
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

November 21, 2018|Jack Balkin, jonathan gienapp, Origianal Methods Originalism

Debating Original Methods Originalism

by Mike Rappaport|6 Comments

Image: BCFC / Shutterstock.com

Recently, 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.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is coauthored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

About the Author

Social, Not Economic Liberalization Defines Post-War America
Meet the Federalist Society Caucus

Recent Popular Posts

  • Popular
  • Today Week Month All
  • The Campus Mob Comes for the Presumption of Innocence February 19, 2019
  • A Corrupt Republic? Hamilton, Madison, and the Rise of Oligarchy February 19, 2019
  • The President’s Emergency Declaration Is the Congressional Check on Presidential Power February 18, 2019
  • Obama and Trump: At What Point Has a President Forfeited the Public Trust? February 19, 2019
  • Harold Ramis, Unlikely Prophet of Trump February 15, 2019
Ajax spinner

Related Posts

Related

Comments

  1. Devin Watkins says

    November 21, 2018 at 10:14 am

    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?

    Reply
  2. John Ashman says

    November 22, 2018 at 7:42 am

    How about if we just start practicing originalism instead of debating it?

    Reply
    • Guttenburgs Press and Brewery says

      November 22, 2018 at 10:53 am

      Puffery is apparently more fun than practice.

      Reply
  3. David Nice, Professor Emeritis, Washington State Univerwsity says

    November 23, 2018 at 1:09 am

    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.

    Reply
    • gabe says

      November 23, 2018 at 10:58 am

      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!!!

      Reply
    • Mike RappaportMike Rappaport says

      November 23, 2018 at 5:26 pm

      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.

      Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Book Reviews

A Compelling and Compassionate Book about Epilepsy

by Theodore Dalrymple

Our knowledge of the human brain is limited, but neuroscientist Suzanne O’Sullivan’s observation of her patients yields astute insights.

Read More

Andrew Roberts Takes the Measure of the “Populist” Aristocrat, Churchill

by Joao Carlos Espada

Yes, there is something new to be learned about Winston Churchill, and it’s in the new 1,105-page biography by Andrew Roberts.

Read More

Liberty Classics

Bringing Natural Law to the Nations

by Samuel Gregg

If sovereign states ordered their domestic affairs in accordance with principles of natural law, the international sphere would benefit greatly.

Read More

Belloc’s Humane Defense of Personhood and Property

by James Matthew Wilson

Perhaps the memory of that metaphysical right to property informs our fears, and could lead to a restoration of human flourishing.

Read More

Podcasts

Born-Again Paganism: A Conversation with Steven Smith

A discussion with Steven D. Smith

Steven Smith talks with Richard Reinsch about his provocative thesis that a modern form of paganism is becoming public orthodoxy.

Read More

"Slouching Towards Mar-a-Lago:" A Conversation with Andrew Bacevich

A discussion with Andrew J. Bacevich

Andrew Bacevich discusses his new book Twilight of the American Century

Read More

Bureaucracy, Regulation, and the Unmanly Contempt for the Constitution

A discussion with John Marini

John Marini unmasks the century-long effort to undermine the Constitution’s distribution of power.

Read More

Beautiful Losers in American Politics: A Conversation with Nicole Mellow

A discussion with Nicole Mellow

Nicole Mellow on the beautiful losers in American politics who have redefined the country.

Read More

Recent Posts

  • A Corrupt Republic? Hamilton, Madison, and the Rise of Oligarchy

    Jay Cost asks his readers to reconsider the ways that corruption all too easily flows from the federal government, in every era.
    by Tony Williams

  • The Campus Mob Comes for the Presumption of Innocence

    It is not necessarily surprising that students fail to appreciate the hard-won freedoms on which the modern university and our civilization rest.
    by John O. McGinnis

  • Obama and Trump: At What Point Has a President Forfeited the Public Trust?

    Why impeachment has always been a tough call for the American people to make.
    by Jeremy A. Rabkin

  • Government by Emergency: Are Two Generations of Crisis Enough?

    The oldest emergency proclamation dates to the Carter Administration, 40 years ago. Two generations of crisis are enough.
    by Greg Weiner

  • The President’s Emergency Declaration Is the Congressional Check on Presidential Power

    President Trump’s declaration of a national emergency is the check on executive prerogative, not the exercise of it.
    by James R. Rogers

Blogroll

  • Acton PowerBlog
  • Cafe Hayek
  • Cato@Liberty
  • Claremont
  • Congress Shall Make No Law
  • EconLog
  • Fed Soc Blog
  • First Things
  • Hoover
  • ISI First Principles Journal
  • Legal Theory Blog
  • Marginal Revolution
  • Pacific Legal Liberty Blog
  • Point of Law
  • Power Line
  • Professor Bainbridge
  • Ricochet
  • Right Reason
  • Spengler
  • The American
  • The Beacon Blog
  • The Foundry
  • The Originalism Blog
  • The Public Discourse
  • University Bookman
  • Via Meadia
  • Volokh

Archives

  • All Posts & Publications
  • Book Reviews
  • Liberty Forum
  • Liberty Law Blog
  • Liberty Law Talk

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2019 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here. By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close