Monday, July 29, 2019

Original Intent, Original Meaning, or Let's Call the Whole Thing Off

By Eric Segall

Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has launched scores of law review articles." This observation is both accurate and unfortunate, but not for the reasons provided by the authors.

In their essay, Rappaport and McGinnis try to bring the warring sides to the table and closure to this debate. According to the authors, both sides believe that the meaning of the constitutional text is fixed at ratification, but they "diverge sharply on the object of their interpretation."  Those who believe in original intent think it is the enactors' subjective intentions that matter while those who favor the original public meaning approach believe that constitutional interpretation should be guided by the meaning of the text as "reasonably understood by a well-informed reader at the time of the provision's enactment."

Rappaport and McGinnis argue that judges today should engage in constitutional interpretation through "original methods originalism," whereby judges are bound by the methods of interpretation that were accepted at the Founding (or presumably in 1868 for the Fourteenth Amendment). They argue that this method demonstrates that public meaning originalists have the better of the argument. Their evidence is persuasive to this reader with the caveat that obviously the intentions of those who wrote and ratified the constitutional text provide at least relevant evidence as to what the text likely meant to the "well-informed" reader of the time. I do not think either author would argue with that proposition.

I am writing about their essay for a different reason, however, than taking sides in the debate over intent versus meaning. Both Rappaport and McGinnis have devoted their enormous energies to books, law review articles, blog posts, essays, and op-eds, discussing how originalists should go about their business.  I will assume for sake of argument, and I think their book "The Good Constitution" supports this hypothesis, that they are talking normatively, not descriptively. Neither man would argue that originalism of any stripe has been the dominant method the Supreme Court has used over time to decide constitutional cases.

As a theoretical matter, their original methods originalism has properly drawn much academic attention because, and, I'm obviously a case a point, originalism is all the rage right now. But if they expect judges deciding real cases that matter to real people and implicate real laws and policies to adopt their interpretative model, they will be sorely disappointed. As I've written many times in this space, the Justices care little about original meaning and/or original intent when reaching their conclusions (as opposed to after-the-fact rationalizations) and mostly about the actual consequences of their decisions. Paraphrasing retired Judge Posner, constitutional law is about values, politics, and experiences, not text, logic, or history. Ironically, the main example used by Rappaport and McGinnis in their essay to support their interpretative preferences also demonstrates how little "interpretation" matters to judges deciding real cases or even to people debating pressing constitutional questions.

Rappaport and McGinnis use the famous controversy over the creation of the First National Bank to support their claims that original meaning, not original intent, should be the target of originalist analysis. They cite statements by founding fathers Alexander Hamilton, Thomas Jefferson, James Madison, Edmund Randolph, and Elbridge Gerry to support their arguments. They argue that all of these men supported applying conventional rules of interpretation to determine whether Congress had the power to create a national bank, and those conventional methods would have focused on the words used in the text, not the intentions of the authors who wrote those words. Fair enough. But, here's the rub. The ultimate conclusions reached by most of these men as to whether Congress actually had the power to create a bank (the Constitution does not include a power of incorporation), were driven by their political priors, values, and experiences, not their method of interpretation. Most famously of course, Jefferson and Hamilton were at odds over the issue, with the Federalist Hamilton strongly in favor (surprise!) of broadening federal power while the states' rights-supporting Jefferson was strongly against (more surprise!). They reached these conclusions based on similar methods of constitutional interpretation. They were lawyers, so they talked the talk of interpretation, but their conclusions were based on other factors, personal and political. Eventually, of course, the Federalist John Marshall ruled that Congress could create the bank (again, no surprise).

And that is how the Supreme Court has decided cases ever since, and that is not going to change no matter how many faux originalists are put on the Court or how many academics discuss the Constitution's original meaning or intent.

The constitutional language that gives rise to most litigated cases, phrases such as "equal protection," "due process," and "freedom of speech," have no core original meaning when facts and circumstances change so dramatically. What "equal protection" means when applied to today's affirmative action programs cannot be and has not been decided by judges with regard to what the words meant in 1868 before generations of segregation and apartheid were put in place. What "due process" meant in 1787 or 1868 can't be meaningfully applied to the myriad issues regarding technology and modern trials that judges face today. And, as Rappaport and McGinnis concede in their essay, the rise of the internet will inevitably require new constitutional constructions concerning freedom of speech that cannot be answered through the lens of 1787 or 1868 America.

The on-going academic debates over original intent and original public meaning do not matter to judges resolving these kinds of issues because, contrary to THE core assumption held by originalists of all stripes, the meaning of the text at issue in today's constitutional disputes is not fixed (I'll have an upcoming essay devoted exclusively to this point). Constitutional meaning changes as the Justices on the Court and the society around them change, as even the controversy over the bank, occurring shortly after the Constitution's ratification, dramatically shows. And the inevitable evolving nature of constitutional meaning may in fact be the only thing about constitutional law that has never and will likely never change, no matter how many intramural fights smart and engaged academics engage in over the proper methods of constitutional interpretation.


Joe said...

" And that is how the Supreme Court has decided cases ever since, and that is not going to change no matter how many faux originalists are put on the Court or how many academics discuss the Constitution's original meaning or intent."

Yes. "Since" here taken in a fully accurate sense means "since the Jay Court started doing this thing." I use the word "Court" advisedly but you know, will move past that.

Prof. Segall quoted Alexander Hamilton in the past to establish his ideal rule on how the federal courts should interpret the Constitution. But, like the judges (see above), he did this following his own rule -- using his priors.

Hamilton basically is a useful animal on his part, including since he engages with people who say they care a lot about what the original crew thinks.

Coyote said...

What about using "original meta-intent" instead of either "original intent" in the classical sense or "original meaning"? With such a method, one would look not only at the original intentions of the draftsmen and/or ratifiers of a particular part of the US Constitution, but also to the scope that these draftsmen and/or ratifiers intended future generations to have when they would have interpreted this amendment?

Among other things, under such an approach, creating an equal protection rule for the US federal government--especially one as broad as in real life--might have been highly problematic. After all, it seems very hard to believe that the generation that drafted and/or ratified the 5th Amendment would have been OK with the US Supreme Court ever striking down a piece of legislation such as the Immigration Act of 1790 (which restricted the acquisition of US citizenship to "free white persons", if I recall correctly).

Also, as a side note, in regards to certain clauses, the original meaning might be more determinative than you think. For instance, the Cruel and Unusual Punishments clause. This clause only prohibits punishments that are "cruel and unusual". This can be read in one of two ways--either as being limited to only those punishments that were cruel and unusual in 1789 or being limited to those punishments that were cruel and unusual at the time that they were given (if not necessarily in 1789). (I don't know which of these two interpretations the draftsmen and/or ratifiers of this clause actually intended, though.) Anyway, though, even with the latter interpretation of this clause, there would still be some limitations on what it could be used for since it could only strike down punishments that have actually fallen out of usage (as in, be "unusual" based on the definition of this word in 1789). Thus, punishments such as the death penalty are still going to be off-limits for SCOTUS to strike down using this approach in US states where such punishments have never actually fallen out of usage (for a sufficiently long time period, such as 50 or 100 years) due to the fact that, in such US states, these punishments still literally won't satisfy the 1789 definition of "unusual".

Coyote said...

Also, Eric, I do think that you might tend to be too dismissive of Chris Green's sense-reference distinction. After all, if the US Congress will (hypothetically, and somewhat jokingly) require the junior US Senator from Arkansas to always have a giant pineapple on his desk, then this requirement isn't actually going to change over time but the identity of the junior US Senator from Arkansas is going to change over time. This is what Chris Green means by sense and reference. The reference (as in, the identity of the junior US Senator from Arkansas) can change over time while the sense (meaning) of a word or phrase or provision or statute does not actually change over time.

Chris Green's theory could be reconciled with a theory of meta-intent if the draftsmen and/or ratifiers of a particular statute or constitutional provision would have intended its reference to be capable of changing over time but not its sense.

Eric Segall said...

Thanks for your comments. I don’t think I’m too dismissive of Chris’ sense-reference distinction because judges will reach their desired outcomes regardless of the Original intent or meaning of the provision, and, of course, it makes no difference whether we say the meaning of equal protection changed or the application of the meaning changed, the result is exactly the same. Moreover, for virtually all litigated constitutional provisions, the sense will be contestable and imprecise as applied to most issues. The pineapple example you give is not one likely to lead to litigation because we know what a pineapple is.

Joe said...

What is a "giant" pineapple?

Coyote said...

@Joe: Here is an example of one of those bad boys:

Coyote said...

@Eric Segall: Those are fair points. Indeed, there certainly is a lot of overlap between some flavors of originalism and living constitutionalism.

Also, as a side note, if judges will always be determined to reach the right results in various cases of theirs (at least if the pressure on them is sufficiently large), why not completely adopt a results-oriented judicial philosophy in all cases? Specifically, what I'm thinking of here is making it acceptable for judges to even strike down parts of the US Constitution--such as the natural-born citizen requirement for the US Presidency--if they will think that these parts are incompatible with their reading of some other part of the US Constitution (such as the 5th Amendment, in this specific case)? Also, why shouldn't conservatives also embrace a results-oriented judicial philosophy if that's already what liberals do? For instance, if we will pass and ratify a constitutional amendment to overturn the Citizens United ruling, a conservative, non-originalist SCOTUS should feel perfectly fine in striking down this new constitutional amendment as being incompatible with the First Amendment in spite of the fact that this new constitutional amendment was properly passed and ratified and also not forbidden by the constitutional text. After all, if it's all about results, and a conservative, non-originalist SCOTUS likes the Citizens United ruling, then it would be perfectly justified in striking down any new US constitutional amendment that will overturn Citizens United.

BTW, my pineapple analogy was meant to indicate a shift of reference--as in, to indicate that the junior US Senator from Arkansas in our time is different from who it was in the past--and that thus the identity of the person who is required to have a giant pineapple on his desk in this scenario changed over time.

Also, if you want to make originalism more different from living constitutionalism, then you could combine originalism with a policy of deference (albeit a bit less on the federal level than at the state level). In other words, if a statute or a constitutional provision (on either the state level or the federal level) was previously believed to be constitutional, then it should always remain constitutional regardless of just how much circumstances are going to change over time. In fact, this approach is already adopted by courts in regards to both statutes and constitutional provisions--as in, a later statute/constitutional provision should not be read as implicitly repealing or implicitly amending an earlier statute/constitutional provision unless it was either intended to achieve this effect or literally cannot be reconciled in any way, shape, or form with the earlier statute/constitutional provision. One could adopt a similar test in regards to determining whether a statute or a state constitutional provision conflicts with a federal constitutional provision. Specifically, see if there is literally any plausible reading of the relevant federal constitutional provision that would allow it to harmoniously coexist with this statute or state constitutional provision and, if there is, adopt this interpretation of the relevant federal constitutional provision and thus uphold the constitutionality of the challenged statute or state constitutional provision.

Coyote said...

BTW, Eric, I know that you've previously praised Raoul Berger and his work--praise that I personally agree with. However, please keep in mind that while Berger was very deferential on the state level (as in, for state statutes and state constitutional provisions), he was less deferential for federal constitutional provisions. For instance, in his 1977 book Government by Judiciary, Berger argued that the 1883 Civil Rights Cases (where SCOTUS struck down the 1875 Civil Rights Act as being unconstitutional) were correctly decided by SCOTUS.

Shag from Brookline said...

Raoul Berger questioned strenuously that Brown v. Bd. of Educ. (1954, Unanimous) was not correctly decided by SCOTUS. Is Moscow Mitch seeming to be heading judicial appointments in that direction? Is that what's behind the 1970s originalism and Federalist Society movements, culminating with Trump 's racism?

Joe said...

Judicial nominees these days are wary of saying on record they agree with Brown.

Shag from Brookline said...
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Shag from Brookline said...
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Shag from Brookline said...

Over at the Legal Theory Blog last week there was a post onJosh Blackman's "Originalism and Stare Decisis in the Lower Courts'" available onon SSRN. Here are th firstt and last paragraphs of the abstract:

"The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision.


"In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist."

Larry Solum have this his editorial "Highly recommended."

Is this what's in the works for Brown? (The entire abstract is worth a read on potential strategies to overturn precedents based upon some version of originalism.)

8:30 AM

Joe said...

I don't know what "originalist" means though Kavanaugh once noted stare decisis is that.

Is "originalism" "originalist"?

Put the right adjective in front of it == see Jack Balkin == what ISN'T originalist?