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Meanings or Decisions? Getting Originalism Back on Track

For what is the point of drawing up dumb, silent statements of laws, if anybody may attach a new meaning to the words to suit his own taste, find some remote interpretation, and twist the words to fit the situation and his own opinion? John Locke

For originalists, must the guiding criterion of constitutional interpretation be original meaning (whether understood in intentionalist or public meaning terms)? You might thing the answer has to be yes. That is just what it means to be an originalist: to connect constitutional interpretation to original meaning.

I think the question is more complicated—and more fraught. Ironically, a focus on original meaning has led originalism to lose touch with its own goals. I will try in this brief essay to explain how this is so. And I will suggest an alternative that might help originalism get back on track. Until someone comes up with a better name, I will tentatively call this alternative “decisional originalism.”

What Originalism Opposes

A helpful way to understand originalism is to consider how it arose. Originalism as a movement began in the 1970s and gained momentum in the 1980s, in critical reaction to Supreme Court decisions like Roe v. Wade. But originalists didn’t simply dislike the substantive results in these cases; they thought such decisions reflected a mistaken and even illegitimate use of the Constitution. More specifically, the Court was interpreting the Constitution’s provisions to do things that the provisions’ enactors had never intended or contemplated. And this sort of non-originalist interpretation was objectionable for two main reasons.

The most obvious had to do with authority. Our constitutional system attributes lawmaking authority to “We the People” and to our elected representatives. If those authorized agents make decisions and express these decisions in words, but other agents—judges—interpret the words to mean, require, or forbid things that those with authority did not intend or contemplate, then it seems that the constitutional assignment of authority is defeated: the real lawmaking power lies with the unelected judges, not with the people and their elected representatives. So non-originalist constitutional decisions and doctrines reflect an impermissible assumption of authority—a usurpation—by judges.

Given our professedly democratic system, we can say, and originalists often do say, that non-originalist constitutional law is undemocratic. But the same basic objection could be made in any kind of political system—a monarchical system, for example. Suppose we think political authority rests with the king, but judges interpret the king’s decrees to mean things the king never intended. There is once again a problem of authority—of the law in reality being made by people who were not and are not authorized to make it.

Bracket for a moment, though, the problem of authority. A second and somewhat more subtle objection to the Court’s adventurous interpretations of the Constitution has to do with rationality. Non-originalist interpreters, whether judicial or academic, typically deny that they are simply legislating and then projecting their legislative decisions onto the Constitution. Rather, they claim to be constrained by, among other things, the Founding document, even if not by the original understanding of that document. But if we take these non-originalists at their word, and if we value rational decision-making, this might seem to be the worst imaginable way of resolving major controversies over contested issues like abortion, same-sex marriage, or presidential powers.

There is at least something to be said, that is, for respecting the decisions made by constitutional framers (and for delegating what those framers left unresolved to a legislative process in which elected officials address the issues on their merits and give what seems to them the most sensible answer). Conversely, there may be something to be said for letting judges address the issues on the merits and give what seems to them the fairest or most sensible answers. Either way, decisions are at least being made by mindful agents– whether framers, legislators, or judges– who are thinking about the issues and striving to figure out the best answers.

By contrast, if we favor rational decision-making, then there is very little to be said for resolving difficult and deeply contested issues by assigning judges not to do what they think best, or what they believe the enactors thought best, but rather to do what they think the words would entail today. Now outcomes reflect not what any mindful agents have decided is the best answer to the question, but rather what “the words”—words deliberately detached from mindful decisions—are thought to require.

The only reason we do not ridicule this approach, which aspires to sever the link between law and mind [1], is that we do not believe the non-originalist judges are really doing what they say they are doing. Probably they are just making their own best judgments on the substantive issues and then pretending to pull those judgments out of “the Constitution” as a magician pulls out of the hat the same rabbit he himself put into it. So our criticisms emphasize not “mindlessness” but rather deceitfulness or hypocrisy (and also, primarily, lack of authority). But if constitutional interpretation actually were what its defenders say it is, the ultimate substantive decisions would be quite literally mindless.3

Suppose you are persuaded by the authority objection to non-originalist constitutional law, or by the rationality objection to it, or by both. We can then describe what you oppose. Along with Locke in my epigraph, you oppose an approach in which there is a gap separating what the enactors of a constitutional provision had in mind or were trying to do, from what the provision is interpreted to require today. It is that gap that gives rise to the authority and rationality objections.

But if this is what you oppose, what should you favor? What is the correct criterion for constitutional decision-making? What criterion will serve to close the authority and rationality gap?

“Original meaning” might seem to be the answer. And maybe, given a different history of development, it could have been. If interpreters are guided by original meaning, they will be able to avoid provoking the authority and rationality objections. Won’t they?

Alas, with the benefit of hindsight, we must admit that the answer to that question is “no.” Even a devout attachment to original meaning as the criterion of interpretation does not deflect the crucial objections.

Originalism Subverting Originalism

Two all-too-familiar and related developments have prevented “original meaning” from closing the gap that generated the authority and rationality objections. One is the frequent interpretation of constitutional provisions to mean (or to embody, . . . or to incorporate) some kind of “principle.” The other is the standard invocation of a distinction between “meaning” and “expected applications.”

These two techniques typically operate in tandem. We declare that the Eighth Amendment, say, embodies a principle of humane punishment. Or that the equal protection clause constitutionalizes a principle of equal regard. If we are originalists (or if we are speaking to them), we will defend these claims on originalist grounds. We will say that this principle is what the Framers intended, or what the original public meaning amounted to, or something of that sort.

From there we go on to figure out what the principle entails for some current issue—capital punishment for minors, maybe, or same-sex marriage. We conclude, perhaps, that the execution of minors or the limitation of marriage to opposite-sex couples is unconstitutional because contrary to the principle we previously extracted from the original meaning. Then, confronted with the objection that the enactors never thought they were prohibiting such practices—that they would have been shocked to learn that the provision they enacted would have any such consequences—we patiently explain that what governs is not the enactors’ expected applications, but rather the original meaning (of which the expected applications are merely imperfect, readily rebuttable “evidence”).

To be sure, both moves—the interpretation of constitutional provisions to embody some grand “principle,” and the separation of “meaning” from “expected applications”—are contestable. Elsewhere I have tried to resist them.[2] Still, both moves are perfectly familiar, and both are defended by sophisticated theorists, including some whose originalist credentials are impeccable. So at least for the moment, I want to concede that these moves may be defensible as an implementation of original meaning. And it follows, I think, at least as a logical possibility, that the original meaning of a provision like the Eighth Amendment or the equal protection clause might be articulated in terms of some “principle,” and that our best understanding of that principle might indicate that it has implications contrary to what the enactors understood and expected. If you want illustrations, just read a page or two of Jack Balkin. Or Michael Perry. Or . . . . Robert Bork on Brown v. Board?

On these (contestable) assumptions, it is entirely possible that a judicial decision mandating something the enactors wouldn’t have approved—would perhaps have deplored—might persuasively be justified as an application of the “original meaning.” The enactors of the Fourteenth Amendment might have been incredulous, or even appalled, at the suggestion, say, that they were somehow invalidating traditional marriage laws. Too bad for them, if it turns out that this is simply an implication of the “meaning”—the “original meaning”—of their amendment.

Let us concede, for argument’s sake, that all of these moves can be persuasively and legitimately made in the name of “original meaning.” Notice, though, that the objections that gave rise to originalism now return as objections against originalism, or at least against this sort of originalism. Indeed, there turn out to be parallels between non-originalism and originalism. Non-originalists all along maintained that judges are constrained by the words of the Constitution– the original words—but may depart from the enactors’ understandings of what those words meant. Originalists now insist that judges are constrained by the meanings of the words, but may depart from the enactors’ understanding of what those meanings would entail or require.

How much practical difference is there, honestly, between these accounts?

An example may be helpful. Take the current controversy over same-sex marriage. Suppose, as I think we must, that the enactors of the equal protection clause never imagined that it would work to invalidate traditional marriage laws, and that in the moralistic and “Christian nation” ethos of the time they emphatically would not have favored any such outcome. Stipulate as well, for purposes of argument anyway, that the words of that clause, whether taken in their original or their contemporary meaning, embody a principle of equal regard, or something of that sort, that is inconsistent with limiting marriage to opposite-sex couples. The enactors had no idea that the clause had this meaning, perhaps; or, if you prefer, they knew that it had this meaning but never imagined that the meaning would have any such implication. And yet it does: In this respect, the enactors’ “expectations” were badly mistaken.

It seems fair on these assumptions to predict (or to predict backward, so to speak) that if the enactors had foreseen this interpretation, they would have reworded the clause to avoid this lamentable (to them) result. Failing that, it is possible that they might have declined to enact the provision at all. But they didn’t foresee these developments, and so in their innocence they gave us . . . words . . . with meanings . . . with implications . . . that they would have deplored.

I have already conceded that on familiar (though contestable) assumptions, it may be plausible in this scenario to say that a judicial decree ordering what the enactors never contemplated and would not have wanted nonetheless follows from the meaning—even the “original meaning”—of their enactment. Would it be plausible, however, to say that the decree implements the enactors’ decision?

You can say if you like that the judicial decree is still a product—albeit an unintended, unwanted one—of the enactors’ exercise of authority. And yet it is a very odd sort of “authority” that authorizes later agents to use the putative authority’s decisions to justify measures that the authority never foresaw, never intended, and would not have wanted. Nor does such a use of “authority” amount to the deployment of human rationality. On the contrary, the judicial decree is if anything a product of the enactors’ ignorance, not of their mindful deliberation. If they had been more prescient, this current decree would have been anticipated and avoided.

In sum, if non-originalist constitutional law is objectionable for its undermining of authority and rationality, originalist constitutional law seems objectionable for exactly the same reasons.

A Better Criterion: The Original Decision

So, is there any way of avoiding this unhappy conclusion? If original meaning does not avoid the authority and rationality objections that gave rise to originalism, is there some criterion that would better serve the originalists’ purposes?

Maybe. Or at least the foregoing discussion has already suggested a possibility. Constitutional interpretation might attempt to ascertain and follow the original constitutional decision. After all, authority exerts itself, and rationality manifests itself, in decisions. To be sure, once made, those decisions are expressed in words—words that have meanings. We necessarily use the words (among other things, such as the historical context) to try to understand and reconstruct the decisions. Still, if our goal is to respect the constitutional assignment of authority and to facilitate rational decision-making, then we should not care about either the words or their meanings for their own sakes. We pay attention to them, rather, for the purpose of ascertaining and following the enactors’ decisions.

This distinction between meanings and decisions is subtle, but it is not wholly unfamiliar. Back when lawyers and scholars took common law reasoning more seriously than perhaps they do now, even a legal realist like Herman Oliphant could intelligibly contend that what binds in a legal precedent is what the court decided, not what the court said. Stare decisis, not stare dictis.[3] My suggestion is that a similar distinction might be employed in the context of constitutional interpretation. In common law reasoning, to be sure, the distinction may seem more manifest because there is no canonical statement of the decision, anyway. With constitutional provisions (and statutes) there is a canonical wording; but that fact, I think, need not dissolve the distinction between decision, on the one hand, and textual meaning, on the other.

Just how an approach focusing on the original decision would differ from one focusing on original meaning is a complicated question, about which I cannot say much in a short essay. (And frankly, I don’t yet have a fully worked out position on the matter.) The decisional approach could benefit, I suspect, from the kind of theoretical sophistication that has been devoted to original meaning.

For now, though, two observations may be suggestive.

There should be no great difficulty in concluding that the Fourth Amendment “search and seizure” provision applies to wiretaps. That sort of invasion of privacy might well be seen as covered by the enactors’ decision even though telephones did not exist in 1789. We might imagine a conversation in which we explain to the Framers: “In the future, it will be possible for officials to invade people’s privacy electronically without physically entering their dwellings. Would your decision apply to that sort of thing?” And we might plausibly suppose that they would reply, “Of course.”

Suppose, however, that someone proposes that a constitutional provision be interpreted to do something we are reasonably confident the enactors did not contemplate and very likely would not have desired. Someone proposes, for example, that the due process clause be used to invalidate restrictions on abortion. Or that the equal protection clause be used to invalidate traditional marriage laws. And we are confident, perhaps, that the enactors of those provisions would have been startled to learn of these proposals, and would have protested, “Are you serious? Our decision had nothing to do with that sort of thing.” If such “interpretations” had been foreseen, the provisions almost surely would have been reworded to avoid the unwanted results, or would not have been enacted at all.

These are counterfactual questions, obviously, and sometimes people will disagree about the answers. But we do ask such questions, and sometimes we feel reasonably confident about the answers. Despite this confidence, as we have already seen, a focus on original meaning in this situation leaves the enactors’ expectations as an easily avoidable obstacle. “Sure,” we say, “the Framers would have been surprised or maybe even appalled, but their ‘expected applications’ aren’t what matters.” Conversely, if the controlling criterion were the original decision, I suspect it would be more difficult to toss aside the enactors’ conscious, mindful understanding of and expectations about what they were actually deciding. (Though, alas, nothing is impossible for a sufficiently motivated judge or advocate.)

What Authority Performs, What Rationality Devotes Itself To

A proposal to look to the “original decisions” over the “original meaning” as the controlling criterion is in some respects inconvenient. A “decision” may seem a more amorphous thing than either the words (which are right there on the page in front of us) or their meanings. Decisions would require interpretation, and perhaps reconstruction.

Nonetheless, this is the approach implied by the authority and rationality objections. As a practical matter, political authority is or should be the authority to make decisions. And rationality is similarly exercised in the making of decisions. The making of decisions is what lawmakers reflect on and struggle over; it is what authority performs, and what rationality devotes itself to. And it is what constitutional interpretation and adjudication should respect. A focus on decisions might thus allow originalists to return to their purpose of resisting judicial decrees that usurp authority and undermine rationality in our constitutional system.

[1] The point is developed in Steven D. Smith, “Law Without Mind,” 88 Mich. L. Rev. 104 (1989).

[2] For example, Steven D. Smith, “That Old-Time Originalism,” in The Challenge of Originalism: Theories of Constitutional Interpretation, edited by Grant Huscroft and Bradley W. Miller (New York: Cambridge University Press, 2011).

[3] Herman Oliphant, “A Return to Stare Decisis,” 14 Amer. Bar Assoc. J. 71 (1928).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 04, 2014 at 12:03:13 pm

If a decision "had nothing to do with [some] sort of thing," why doesn't the original meaning of the provision reflecting that decision also have nothing to do with that sort of thing? I could understand why it wouldn't if "having nothing to do with that sort of thing" meant that the decision wasn't made in contemplation of that particular sort of thing. But that's not what it means for you, given the wiretap example. And I don't think "having nothing to do with that sort of thing" quite means, for you, that there was no expected application to that sort of thing, or hypothetical expected application if it were something not in existence at the time. That is, it sounds like expected applications are pretty probative for you to the content of a decision ("if the controlling criterion were the original decision, I suspect it would be more difficult to toss aside the enactors’ . . . expectations"), but I think your theory can conceive of incorrect expectations about application. After all, people can misunderstand their own decisions, disavow for political reasons the necessary applications of their decisions, etc. So "having nothing to do with that sort of thing," I'm left to think, means that the meaning of a decision doesn't cover that sort of thing - which sounds an awful lot like original meaning.

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Asher Steinberg
on December 04, 2014 at 12:07:44 pm

If the evil you are trying to prevent is the reading of constitutional provisions to represent principles that have implications contrary to the expected applications of their framers, then it hardly seems like analogizing those provisions to common law decisions will prevent that. It was at the heart of the old common-law decision-making process to try to extract broader principles from a series of decisions, and it is exceedingly common to see common-law decision-makers apply those principles to reach different determinations under fact patterns that are substantially less different from each other than are the facts of the present from the facts of the framers' times.

To be sure, a more casuistic approach might result in more careful and more accurate determinations of what principle a constitutional provision should be read to represent; and it might make it less tempting to rebut the evidence provided by original expected application. But the approach does not absolutely prevent a good-faith interpreter from concluding that a principle that no one alive enacted mandates a conclusion that no one who enacted that principle would have imagined.

Moreover, I question how much of a conceptual theory is really needed here in order to engender such caution. I think lawyers are very accustomed to combining straight textual reading with common-law casuistic reasoning, and they mostly do it intuitively. So if what you are arguing is "be more casuistic," then perhaps your advice to originalist lawyers is simply "to be a good originalist, stop thinking like a theorist of originalism/textualism and start thinking like a lawyer!"

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JimM47
on December 04, 2014 at 16:11:40 pm

"“to be a good originalist, stop thinking like a theorist of originalism/textualism and start thinking like a lawyer!”"

Perhaps, it would be better to say. "start thinking like a politician" when politician is defined as an old-school statesman.

I think what Smith may be attempting to account for in constitutional interpretatation is not so much *decisions* as the conscious *compromises* that went into the *decision(s)* and thus the text. If one considers that the entire American governmental framework was the result of compromise, and the textual expression of that compromise, the US Constitution is therefore a compromise, then one must, to be faithful to it, attempt to understand what elements / rationale and yes ideology went into the *decision / textual* outcome.

Is a lawyer better able to accomplish this, captive, as they may be, to the various schools of interpretation / ideology? - or would an actor more in tune with the nature of *political* compromise gain a better grasp of what was decided / compromised? A historian, perhaps!

Please no more lawyers, are not they the ones who have caused this mess?

Smith is correct - pure textual interpretation may lead to false conclusions / contradictory outcomes. Some apprehension of intent, with a healthy dose of *compromises involved in the final decision and text may be a more fruitful method of explicating meaning and anticipated outcomes.

One may argue that we should not simply accept *anticipated outcomes* from the long-dead" - for to do so is to exalt the old above the new and thus we must ascribe to them a certain flexibility in anticipated outcomes (the Progressives remedy). However, if any such flexibility existed, it is more likely to be found in the writings and or public documents of the long-dead actors rather than in the present day musings and bastardization of ancient text that many are today partial to. While difficult to reach, a conclusion informed by such writings of the actors still accessible may be preferable to the fanciful musings of the ideologically predisposed.

To those who would argue that recourse to decision / compromise thereby locks us into the past and its mindset / ethos, one should recall that the long-dead also provided us with Article V. In short if you wish to change the dang thing, change it - just stop re-writing it into oblivion.

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gabe
on December 06, 2014 at 15:38:34 pm

On first impression, Professor Smith has done a great service. In shifting the discussion of constitutional jurisprudence from meaning to decision he has moved the discussion into the realm of the living. Words on the written page, even Scripture, are not the same thing as the living beings who offered those words. The apostle Paul made an analogous move in the first chapter of John: The Logos was made flesh. Rationality, authority, and decisions are about and made by persons. Without this personal aspect, one cannot capture the spirit of the words. Still, this is only the beginning of a discussion. Decisions made outside of God are not decisions that have a foundation. From here to there, as jurisprudence, not to mention as a culture, is the narrow road still ahead. For helping to light the way: blessings to the professor!

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Eric Ressler
on December 19, 2014 at 07:42:49 am

[…] in Originalist Theory,探討最近在Liberty Law Blog中的一篇探討原意主義的文章(Meanings or Decisions: Getting Originalism Back on Track),作者Steven D. Smith發展了自己的一個理論:Original Decision […]

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Image of Jack Balkin on New Development in Originalist Theory(Balkin論原意主義的理論新進展) | 法哲學、生活與實踐
Jack Balkin on New Development in Originalist Theory(Balkin論原意主義的理論新進展) | 法哲學、生活與實踐
on December 19, 2014 at 21:51:19 pm

Author makes great sense to me. I happen to agree with the thrust of roe vs. wade and the marriage cases, but I am more concerned that these decisions seem to stand constitutionalism on its head, especially any idea that it be democratic or republican (small case d and r) constitutionalism. These decision in effect amend, not interpret or apply, the constitution.

I find that sort of interpretation a potential source of chaos or of tyranny or of both together.

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John Werneken
on February 11, 2015 at 17:39:21 pm

[…] — the type most legal academic originalists subscribe to, viz. new originalism — that he wants to jettison the entire project and start over with something he tentatively calls “original decisions originalism.” […]

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Image of Originalism’s Obituary | Balls & Strikes
Originalism’s Obituary | Balls & Strikes
on May 11, 2015 at 13:54:18 pm

If we take same-sex marriage as an example here: would the framers of the constitution have considered this as an implication- probably not.

But one thing the framers did conceive of: protecting the rights of a minority over the the opinion of the majority. I'm sure that there is not a soul alive that would venture to say that marriage does not give one legal privileges and the resultant liabilities thereof, over singles at least in some way, regardless of how minute said privileges and liabilites may be.

This sets aside any rationalism of religion-objection because of the simple fact that we are not looking at a religious rite which has no legal recognition- we are looking at the granting of a status of legal privilege- This combined with the extreme caution the constitution gives with respect to the government and religion tends to indicate that the issue should not be so much as entertained under any principle of religion because to to so seems to violate anti-establishment one way or another, which was intended historically, to prevent religious organizations from obtaining any sort of political power whatsoever in our government- though early in our history anti-establishment wasn't an issue in this sense because most people had the same religion early on in the history of the United States.

The issue of religion aside- we are left with the fourteenth amendment equal-protection clause. The problem I encounter here is this: Marriage is, in essence a legal contract. It has been well held that the government does not have the right to interfere with private contracts, so long as the purpose of the contract doesn't fall within the purview of criminal activity. The court had addressed the criminal issue within this type of matter twice- The first time in Bowers V. Hardwick (1985) (overruled), and the Second time in Lawrence et al. V. State of Texas, (2003).

In Lawrence, the court essentially said that sexuality between two consenting adults was such an innately private matter that it is immune from governmental regulation. The court placed emphasis on consenting and adult in its decision. Therefore we cannot say that same sex marriage is violative of the common law principle that a contract is void where it necessitates a criminal act.

Therefore, even IF we venture to say that the 14th amendment equal protection clause should not properly at bar here, (which it is my position that it is for reasons not discussed here), do we REALLY want to entertain setting a dangerous precedent of expanding governmental power over private contracts to any degree?

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John Doe
on May 11, 2015 at 21:51:15 pm

'@john doe I agree. Would NOT be a good trend, if state power got precedents set to tell people either how to worship or how to arrange their families and their marriages/partnerships.

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john werneken
on November 24, 2016 at 12:26:33 pm

Oops! The apostle John not Paul.

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Eric Ressler

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.