I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree.
On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.
Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.
On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.
The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic meaning. Unclear language, in contrast, creates a construction zone. Within that zone, the judge may appeal to materials other than its original meaning in the course of judicial review.
Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:
If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution. And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land
Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.
I’d criticized Judge Sentelle’s opinion (not Mike’s article, which I’ve read with great profit but, I admit, some time ago) for “hanging too much” on the word “the” preceding “Recess.” The definite article, the judge insists, very strongly suggests that recess appointments are permissible only between Senate sessions, not during intra-session adjournments or “recesses.” I didn’t mean that we should ignore (in)definite articles in the Constitution when trying to understand it—to the contrary: the Constitution’s authors are best read as Lillian Hellman in reverse. (“Every word she writes is a lie, including ‘and’ and ‘the,’” Mary McCarthy famously remarked of Hellman.) It’s good to start (at least) with the presumption that every constitutional word is well-considered and meant to be taken seriously.
Earlier this week, Mike Rappaport replied to Mike Paulsen’s defense of Chief Justice Robert’s opinion upholding Obamacare’s individual mandate as an exercise of the taxing power. It’s taken me a bit to weigh in because NFIB v. Sebelius continues to grow on me: the more I think about it, the angrier I get. But on a Saturday after a round of golf, I can manage. I think.
Between right-wing originalists called Mike: I believe that the Chief got it almost right; that Mike P.’s defense gets it almost right; and that Mike R.’s objection misses the mark. But the “almosts” matter: they contain all the tragedy and horror of the decision.
To be clear: I have no design to join the conspiracy theorists and “Roberts is a traitor” contingents. Mike Paulsen’s piece contains an eloquent defense of the Chief’s personal and judicial integrity, to which I subscribe wholeheartedly and which will hopefully help to put distance between the grown-ups and the fever swamps. It so happens, though, that honorable people can make mistakes that have very fateful consequences—not on account of a lapse but for respectable and even, and precisely, for honorable reasons. Here goes.
What are states, and what are they good for? Brother Rappaport had a very good law review article some years ago, arguing that for constitutional purposes, the word “state” means something close to “sovereign country.” (Of course, the Constitution explicitly strips the states of some of the traditional attributes of sovereignty, such as the power to wage war.) And the Supreme Court periodically swoons over the “dignity” of quasi-sovereign states. However, these and similar tributes to “Our Federalism” are increasingly at odds with reality. For operational purposes, “states” are best understood as undercapitalized health care and pension funds that write speeding tickets on the side.
Recent postings on this blog suffice to tick off the Good Humor man and to compel my emergence from whatever the summer equivalent of hibernation may be.
(I am kidding. Frank and fun exchange is what this place is for.)