Wednesday, August 23, 2006

The Never Ending Originalism Debate

If like me you're a law blog geek, you've noticed that another debate over the primacy of originalism has been brewing for the last week. If you have better things to do with your life than read complex arguments about the "semantic meaning" of the words of a document written over 200 years ago, then you might have missed it, but if that's the case, what are you doing reading this blog anyway?

It started on Volokh when Orin Kerr offered (what little evidence there is for) the original meaning of the 4th Amendment. Randy Barnett, originalist par excellance, responded with the Akhil Amar's (whose excellent book on the Constitution I'm almost done reading) article on the original meaning and then it just blew up (see here and here).

Larry Solum offered the best defense of originalism in his response to Brain Leiter's contention that an interpretive method that places primacy on the plain meaning has no normative foundations (or more accurately that those foundation have not been explicated by originalists). Leiter states,

Why, in other words, is an originalist way of fixing meaning authoritative? Why not the plain meaning? Why not the morally best sense we can make of the plain meaning or the original intent at a suitable level of abstraction? Why not the accumulated meanings that have accreted to the text over the course of its institutional history as it is interpreted, debated, amended, and applied?

In others words, we assume that the Constitution binds us and therefore some meaning of the words must bind us as well. But why the original meaning of the document?

Now, if you ask me, the answer seems obvious. The Constitution must have had some meaning when it was signed and ratified. Since original intent is generally not considered a successful way of interpretation (and was impossible with the Founders since we did not have access to their notes for decades), the people in the late 18th Century could not have used original intent as a method. So there must have been some method that interpreted the Constitution and that is as Solum puts it "sentence meaning" or "clause meaning" which is how a reasonable person would have understood the clause at the time. That's called plain meaning.

To argue that the meaning changes with time is to ignore our obligation to constitutionalism. If we are bound by a Constitution's meaning and that meaning changes, what are we bound to? The interpretation of judges (or other officials) in various centuries? What's the point of the Constitution in that case?

Jack Balkin argued that we need to distinguish between original public meaning and original expected application. The difference is what people understood the clause to mean and how they expected it to be applied.

Let's go through the three possibilities of "original" interpretation: original intent (largely discredited), original public meaning, and original expected application. The former relies on the subjective intentions of the promulgators of the clause, the middle looks to the objective interpretation a reasonable listener would attach to the clause, and the latter points to how that reasonable listener would expect the clause to be applied.

As an example, let's take an ordinance passed a municipality: No one shall be allowed to walk their dog between 10 P.M. and 2 A.M. Let's assume the ordinance is passed after a rise in dog bites between those hours. Using original intent we would look to see what the members of the municipality intended when they passed the ordinance, which would probably be to eliminate dog bites. Perhaps though they only intended to limit the ordinance to big dogs, which statistics have shown are more prone to biting. Using this interpretative methodology one could argue that a chihuahua is not covered by the ordinance.

Under the plain meaning, it would mean "dogs" and no exceptions. Intent is irrelevant. (As an aside originalists look to the statements by the founders not because we care what they thought, but because their speeches are evidence of what the words were understood to mean in their era). Under the expected application method, we'd assume the ordinance would be interpreted to cover the all dogs.

In this limited example original public meaning and original expected application converge. So let's use a better example: the 8th Amendment prohibits "cruel and unusual punishments." Balkin argues that the original expected application methodology would require interpreting this clause in the same way as the people in 1791 and applying it the same way. That means they had a conception of cruelty and they would apply it to a negate a statute if it was cruel. This is a position he (correctly) ascribes to Scalia.

Someone who abides by the original public meaning would recognize that a concept of "cruelty" existed in 1791, but it must be reevaluated in each generation to see how it should be applied. In other words, there's a broad concept called "cruelty." The Founder's generation might not have considered flogging cruel, but given what we know today we believe that it is. So the meaning of the term "cruelty" doesn't change but we now know the founders were wrong about what was and wasn't cruel (meaning they misinterpreted what was cruel, not what cruelty was.

This is a fascinating argument. For some reason the Founders did not have as a good an understanding of certain terms ("cruel", "equal", "due", etc.) as we do today. As society's understanding of the term improves, we interpret the Constitution to reflect that improvement. Note that Balkin is not arguing that was constitutes "cruelty" has changed, just that the meaning that is locked into the Constitution is applied differently based on how society moves in the right direction. I'm not sure I agree with this argument, but it is compelling.

6 Comments:

Blogger Charlie Hall said...

'originalists look to the statements by the founders not because we care what they thought, but because their speeches are evidence of what the words were understood to mean in their era'

Believe it or not, I don't have a problem with that. I'm not a constitutional scholar or even a lawyer, but I would agree that the writings and speeches of folks like Madison who played a major role in its composition should have a lot of weight in its application even today.

8/23/2006 4:15 PM  
Blogger Bishop Hill said...

Surely the best reason for using original public meaning is that it was only the original public meaning which was ratified by the states?

8/24/2006 12:45 AM  
Blogger Nephtuli said...

Believe it or not, I don't have a problem with that. I'm not a constitutional scholar or even a lawyer, but I would agree that the writings and speeches of folks like Madison who played a major role in its composition should have a lot of weight in its application even today.

Ah, but what about Jefferson?

Surely the best reason for using original public meaning is that it was only the original public meaning which was ratified by the states?

Well nonoriginalists would argue that "meaning" cannot be ratified, but only the text. I believe one flows from the other, but not everyone agrees with that.

8/24/2006 9:43 AM  
Blogger David Fryman said...

I generally find Balkin's argument convincing but I'd even go a step further. It's quite likely that the Founders themselves understood that their own conceptions of "cruel", "equal", "due", etc. were limited in scope. As students of history and of English law, many of the Founders could well have predicted the controversies of interpretation that face us today.

I assume, therefore, that when they wrote "cruel" they didn't merely mean "our present conception of cruel". Had the Bill of Rights said "our conception of cruel and unusual punishment", there would be nothing to argue about. By writing "cruel", I think their original intent was to mean "cruel, as understood by the interpreters of the law".

8/27/2006 4:59 PM  
Blogger Nephtuli said...

David,

I disagree. The question is NOT what the founders intended. Even if they intended that we not follow the original public meaning, I wouldn't care because we are not bound by their intent.

We are bound by original public meaning and you'd have a hard time convincing originalists that the original MEANING of the term wasn't static.

8/27/2006 11:08 PM  
Anonymous Anonymous said...

I am so late to the party, but it seems that Balkin only envisions "society" moving one way - unless he defines "improvement" as any different understanding that comes at a later time. What if society moves in the wrong direction? (Though, granted, given it's people in the present judging the past, I'm sure the majority will always find where ever society is at a given moment, morally, to be superior to where it was in previous generations).

8/16/2010 5:50 PM  

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