Is New Originalism Really Less Determinate Than Old Originalism? A Thought Experiment

By Mike Dorf

My latest Verdict column is the second of a two-part series on what the SCOTUS might do if asked to rule on very restrictive gun control laws that fall short of the outright bans invalidated in District of Columbia v. Heller and McDonald v. City of Chicago. (The first column appeared here.)  In this second column, I use the gun control issue as an opportunity to make some points about the differences between old originalism--which seeks original intent--and new originalism--which seeks original public meaning.  Here I want to say a few words about determinacy of meaning and intentions.

As I note in the column, one of the standard critiques of old originalism is that the intention of a multi-member body like a legislature cannot readily be determined.  The problem is thought to be magnified for the Constitution and constitutional amendments, which become law through multi-stage processes.  Indeed, the multifariousness of intent with respect to politically contested matters typically counts as a reason for shifting to original meaning, because there will generally be fewer contests over the semantic content of a word than over the expected application of that word to some concrete problem.  But if new originalism avoids the difficulties occasioned by aggregating intent, it does so, some critics charge, by shifting to a higher level of generality.

Some examples should make the foregoing less abstract.  First, suppose you are an old originalist trying to figure out whether whipping felons as punishment violates the Eighth Amendment. You might well say that the sources are indeterminate. The Supreme Court's 1910 decision in Weems v. United States discusses the sparse evidence of the views of the framers and the somewhat more robust evidence that can be gleaned from positive law in the early Nineteenth Century. For present purposes, I'm just going to stipulate that a competent historian would say that there is insufficient evidence to reach a firm conclusion about what a majority of Congress, a majority of state legislators, or a majority of American voters thought about the application of the Eighth Amendment to whipping circa 1791 (or circa 1868, if you're interested in the original intent of the framers of the Fourteenth Amendment, held to incorporate the Eighth against the states).

Now suppose you're a new originalist. You no longer care whether the framers and ratifiers of the Eighth Amended intended or expected that it would ban whipping. Instead, you now want to know what the meaning of "cruel and unusual punishments" would have been at the time. Let's suppose there is a relatively determinate answer to that question: It meant "punishments that are both severe relative to the crime and rare."  So now you have to decide whether whipping is severe relative to the crime and rare.  You can address the rareness inquiry using objective data about how frequently whipping is imposed.  But "severe relative to the crime" looks irreducibly value-laden. It's the sort of test that living constitutionalists embrace.  Accordingly, new originalism sometimes solves old originalism's indeterminacy-of-aggregate-intent problem only by substituting an indeterminacy-in-the-sense-of-vagueness problem.

In the column, I note that indeterminacy in the sense of vagueness is in fact the feature of living constitutionalism that conservative originalists most deplore. Accordingly, I suggest that from the perspective of one who was drawn to originalism by a revulsion against living constitutionalism, new originalism is a step backwards, not forwards. But that suggestion can only be right if one thinks that, notwithstanding the aggregation problem, there is a substantial class of cases in which old originalism is fairly determinate.

Is there such a class of cases? In principle there could be. I said I was going to stipulate that the original expected application of the Eighth Amendment with respect to whipping was indeterminate, but we could imagine otherwise. Suppose that in the public debate over the Amendment, dozens of persons voiced a view about whipping, and that whether they favored or opposed the Amendment, they all said that of course it doesn't forbid whipping convicted felons, with disagreement only about whether the upper limit on the number of lashes was on the order of twenty or a hundred.  If that were so, then the shift from old originalism to new originalism would pretty clearly be a shift from determinacy on some questions (ten lashes of the whip are permissible as punishment for aggravated assault, say) to indeterminacy (maybe whipping is categorically forbidden because of its severity).

Whether--from the perspective of an originalist--new originalism is a step forward or backwards with respect to determinacy thus depends on what is partly an empirical question: In the run of cases likely to reach the courts, are we more likely to see issues as to which there was a consensus on original expected applications or original public meaning that is sufficiently precise that there will be consensus about their contemporary application? I don't know the answer to that question. I also realize that originalists care about other things besides determinacy.  Still, to the extent that determinacy is part of the equation, this strikes me as the sort of question that originalists might want to investigate. Because I'm not an originalist (old or new), I certainly don't want to investigate this question, although I'd be interested in looking at what others turned up.