Introduction

It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time Originalism.” But unlike his earlier essay, which sought to defend the old originalism as the correct version of original meaning, Steve now advances a new type of originalism – original decision originalism – as a means of addressing what he regards as the defects of the new originalism.

Steve’s concern is that original meaning analysis has come to be distorted through what I call abstract interpretation. The Framers of the Constitution may have expected a constitutional provision to address a matter in a certain way. But by interpreting a provision to have an abstract meaning, current day judges can reach results that the Framers would have rejected.

Steve believes that two related interpretive techniques are responsible for this distorted form of originalism. First, interpreters read many constitutional provisions to incorporate principles rather than rules or other types of meaning. Second, interpreters treat the Framers’ beliefs about how their provisions would be applied as mere expected applications, distinct from the genuine original meaning. Together these techniques lead to abstract meanings that are interpreted to reach results neither expected nor intended by the Framers.

Steve believes that these unexpected results are problematic for two reasons. First, they ignore the authority of the Framers as to the Constitution, giving the real power to judges. Second, they lead to a type of law without mind – a type of irrationality – in that the meaning provisions are given would not have been contemplated by any one.

I sympathize with Steve’s complaint’s about abstract originalism, but in the end I have to part company with his proposal. First, while I agree that originalist interpretation can be undermined by placing too much emphasis on principles and too little weight on expected applications, I nonetheless believe that both principles and the distinction between expected applications and original meaning have a role in originalist interpretation. Second I do not believe that the cause of genuine originalism would be advanced by promoting original decision originalism. Instead, the best solution is to rigorously apply an unbiased originalism that rejects interpretation based on the interpreter’s values.

The Bias Towards Abstract Meaning

Steve’s concern that originalism is being distorted to reach abstract meanings is well founded. There are two ways that this can happen. One way is simply to misread the evidence of the original meaning. But another way is to adopt an interpretive methodology that is biased toward abstract meanings.

Jack Balkin’s interpretive approach – which strongly favors both principles and a strong distinction between original meaning and expected applications – is a major object of Steve’s concerns. I agree that Balkin’s methodology is problematic.

In my view, the correct way to determine the original meaning is to look at the language in context without any biases in favor of one result or another. But Balkin seems to argue that one should interpret the original meaning to have a thin meaning so that it can be given content over time that accords with modern values. As he writes:

 Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of constitutional interpretation. There is no natural and value-free way to make this selection. . . . It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have. (emphasis added)

Balkin then goes on to explain that he adopts an interpretive approach that allows modern interpreters to supply a significant amount of content, because of his view about “what makes [constitutions] legitimate for generations long after their adoption. . . . [A]dopters must put their trust in later generations to carry out the plan and adapt it to new circumstances.” What supports this theory of meaning? As Balkin explains, it is his view of the proper values – of what makes a constitution legitimate.

Rather than adopt an interpretive approach based on one’s values, however, an originalist ought to discern the original meaning in the most accurate way possible. That may involve judgment calls, but it should not be based on one’s values. If one selects one’s interpretive approach based on one’s values, it will be one’s values, rather than the original Constitution, that determines the Constitution’s original meaning.

Balkin also freely employs the distinction between original meaning and expected application. Because the original meaning is thin, the Framers’ expectations about the application of a constitutional clause may lead to one result, but those expectations would not preclude future originalists from applying that thin meaning differently, while still being faithful to the original meaning.

But if it were just Balkin and a few others who favored this approach, Steve would be less concerned. He notes, however, that Robert Bork makes a similar argument when discussing Brown v. Board of Education. Bork argues that the Equal Protection Clause adopts an equality principle. While the Framers of the 14^th Amendment might have believed that separate but equal was consistent with equality, it turns out, through experience, that the two cannot be reconciled. And therefore Bork believes that the equality principle requires that we reject separate but equal.

Moreover, it is not just with respect to Brown that Bork adopts this approach. In Ollman v. Evans, Judge Bork took a similar position, appearing to argue that if the Framers’ rules or expectations for libel actions turned out to be inconsistent with the principle of freedom of the press, the former should be modified.

Unfortunately, Bork does not really justify his approach. While there is not space to adequately discuss the issue, the short answer is that if the Framers actually chose a 14^th Amendment that adopted a form of equality that allowed separate but equal (a position I doubt), judges cannot then decide that the original meaning forbids such segregation because the judge believes that segregation does not produce genuine equality.

Steve argues that if even orthodox originalists like Bork can endorse an originalism that departs from the results that the Framers would have intended and expected, then originalism has lost its way.

The Correct Interpretive Approach

While I agree with Steve that both Balkin and Bork’s approaches are problematic, that does not tell us what the correct theory is. Unlike Steve, I believe that one cannot rule out principles or entirely dispense with the distinction between original meaning and expected applications.

Let’s start with principles. The term principle does not have a single meaning, but let’s assume that it means a provision that has an abstract meaning that is not tied to concrete results. Should we rule out principles, as Steve seems to want, going instead with the concrete results that the Framers appeared to desire? I do not think we can go that far.

In my view, an originalist approach should look to the meaning of the constitutional language in an unbiased manner, neither favoring nor disfavoring principles. Under this approach, a constitutional provision may end either having or not having an abstract meaning, depending on the evidence.

Consider the following example. Imagine that the Equal Protection Clause incorporated a principle that prohibited special laws – laws that drew an unjustified distinction between classes of people. Distinctions between people could be justified if they sufficiently related to what was deemed the public good. There is some evidence that the original meaning of the Equal Protection Clause adopted such a principle. (Although I do not believe this is the correct understanding of the Clause, that does not undermine the force of the example.)

The question under this view of the Clause is what is a sufficient public interest to justify distinctions. One likely way that such distinctions could be justified is by showing that they conformed to traditional moral principles that were widely followed at the time of the 14^th Amendment. But what happens when those traditional moral principles come to be questioned in society? Under one interpretation, those traditional moral principles will continue to justify the distinctions. Under a second interpretation, those traditional moral principles will lose their justificatory force if they are no longer accepted in the society. (A key question is how much loss of acceptance is required for them to lose their force, but leave that aside.)

These two interpretations lead to different results for the constitutionality of laws allowing only traditional marriage. Under the first interpretation, gay marriage would never be required by the 14^th Amendment because it violated traditional moral principles written into the Constitution. Under the second, if gay marriage came to be widely accepted as morally legitimate in our society, then laws allowing only traditional marriage would violate equality.

In my view, each of these positions is plausible. The choice between them will depend on an interpretation of the original materials. One cannot know the answer without doing the historical and legal research and evaluating the evidence.

Now consider the question of expected applications. Expected applications provide evidence of the meaning of constitutional provisions, since the enactors of a provision certainly know something about its meaning. But statements made by enactors are not dispositive, because those statement might be made without sufficient thought or for political reasons.

But even if one believes expected applications always apply a provision correctly, such applications do not always indicate the meaning of a provision. Assume, as seems clear, that people at the time of the 14^th Amendment’s enactment would have believed that it did not require same sex marriage. This belief would not help us decide between the above two interpretations. If the first interpretation were the correct one, the belief that the 14^th Amendment did not require same sex marriage would reflect the fact that traditional moral principles were written into the Constitution. But if the second interpretation were correct, the belief would merely reflect the fact that traditional moral principles were accepted in 1868. That belief would not suggest that the same result would hold if those principles were no longer accepted.

Steve argues that an interpretation that departs from the clear expected applications is problematic on grounds of authority and rationality, but his objections can be answered. Steve claims that the departure from the expected applications does not respect the authority of the Framers, because their decision is not being followed. But this is not really true. If the second interpretation above were correct, then the meaning the Framers adopted – which would allow discriminations only when supported by traditional moral principles that continue to be accepted – would be fully respected. The Clause’ application would be changed because the relevant circumstances would have changed.

It is true that the Framers would not have anticipated that gay marriage would come to be accepted, but that is not really pertinent. Under the second interpretation, the Framers did not adopt a provision specifically addressing marriage. Instead, they enacted a nondiscrimination principle that allowed discrimination that was tied to widely held moral beliefs, and those beliefs would have changed. In fact, if judges allowed discrimination against same sex marriage in those circumstances, they would be flouting the Framers’ authority.

A similar point holds for the rationality objection. If the second interpretation were correct, then the Framers would have chosen a principle that rejected distinctions that were not supported by moral principles currently held by the society. The Framers’ minds would have been followed.

Of course, these conclusions would depend on the second interpretation being correct, and it might not be. But disagreements over the correct original meaning is a common occurrence within originalism. One therefore needs to be careful in discovering the original meaning. But accurately determining that meaning requires that one examine the evidence with an unbiased interpretive approach, not favoring or disfavoring abstract meaning based on one’s own values.

Problems with Original Decision Originalism

Instead of employing such an interpretive approach, Steve wants to develop a new interpretive method, which would seek would he calls “the original decision.” The idea is that the Framers made a decision; and by following that decision, rather than the meaning of their words, we will avoid both the authority and rationality objections.

Steve’s attempt to stake out a kind of originalism that will be free of contamination by abstract originalism reminds me of a similar move by C.S. Peirce, who upon discovering that some other philosophers were using the term pragmatism in a way he disapproved, announced the coinage “pragmaticism,” saying that it was “ugly enough to be safe from kidnappers.” Original decision originalism is designed to avoid abstract interpretations that lead to applications that are not expected by the Framers.

I have several concerns with this approach. First, I do not believe it is likely to be successful. People who favor a more abstract originalism will reject it, arguing that it is result oriented. Even worse, abstract originalists will claim that they are the true originalists, while people who favor original decision originalism are merely following an artificial kind of originalism designed to avoid the genuine original meaning.

Second, I am not sure that original decision originalism will do the work that Steve hopes it will. Sure, one might define the original decision to coincide with the expected applications, but one might define meaning that way too. If one lets the phrase “original decision” speak for itself, then it is possible that the Framers’ decision might be an abstract one – they decided on an abstract rule and we should follow it. Ultimately, Steve might find the pragmatists starting to claim not only the term pragmatism, but also pragmaticism.

Conclusion

In the end, I do not believe that original decision originalism is the best way to address the problems of abstract originalism. In part, that is because abstract meaning cannot be ruled out entirely, but it is also because the original decision is not likely to effectively limit abstract originalism.

I do plan to use original decision originalism as an argument against abstract originalism. If abstract originalists argue that their values support reading provisions to be abstract, then one might ask why other originalists with different values should not interpret provisions to be concrete.

Ultimately, though, I do not think there is any alternative to arguing for an unbiased originalism – one that simply looks into the original materials in an attempt to determine the original meaning. Many, although not all, of Steve’s concerns about abstract originalism can be addressed here – by showing that a fair interpretation of the provisions often does not lead to an abstract meaning. But that result must come at the conclusion of the historical inquiry, not from the interpretive premises.