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.