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How Originalism Addresses Consequences

In the last two posts, I have argued that originalism can comprehend many of the so-called modalities of constitutional interpretation. That is, while some professors, like Pamela Karlan, argue that interpretation can and should be based on many factors, like text, structure, and consequences, originalism takes account of these as well. One major advantage of originalism as opposed to these modalities is that the interpretive legal rules that were applicable at the time of the Constitution discipline the manner of using these factors to arrive at the meaning of our fundamental law. Interpretive modalities as used by Karlan and others tend to make constitutional interpretation a grab bag of factors where the judge picks out whatever factor will lead to a result that accords with his intuition about justice.

The hardest question for the relation of originalism and the modalities is that of consequences to original meaning. My tentative view is that the interpretive rules of the time may well permit the use of consequential reasoning in limited circumstances. Thus, when the original meaning of the text is otherwise unclear and when the consideration of consequences are those that would help determine whether an interpretation  advances the provision’s purpose and values, this aid to interpretation should be entertained.

The first step is to recognize that William Blackstone himself said that to clarify a text a judge should take into account the “spirit” of a legal provision. By referencing “spirit,” he essentially meant the purpose. And consequences can be evaluated against the values presupposed by a legal enactment, illuminated by its purpose.

The danger here is not so much that consequences can be taken into account in determining meaning, but that purpose will be read too abstractly, allowing an open-ended consideration of consequences according to the judges’ own values. But originalism addresses this issue as well. Mike Rappaport and I have argued that properly reading the Constitution in the language of the law makes many provisions less abstract. Moreover, in defining what the purpose is, the interpreter should look at the “mischief,” as Chief Justice Marshall observed, that the provision was designed to combat, also making that purpose more concrete.

Recently, originalists are starting to consider more seriously the relevance of consequential reasoning to originalism. Jack Balkin has noted for instance, that in the debate over the bank bill, James Madison argues that interpretation of a provision should be “triable by consequences.” Balkin does not recognize that Madison is a relatively poor guide to the conventional legal interpretive rules of the time, because he was not a lawyer, unlike other Framers and early jurists. Indeed, he was criticized by Elbridge Gerry for being insufficiently conventional in his deployment of rules in the bank speech.

But in a forthcoming article Mike Rappaport and I show that that the consequences Madison takes into account are those given by the text and obvious purpose of the Constitution. Madison argues that if a bank were permitted to be incorporated, the government could incorporate a whole range of institutions, leading to unlimited power. That consequence would be inconsistent with the enumerated powers. Thus, Madison “tries consequences” by considering whether the consequences are consistent with the structure and obvious purpose of the Constitution. Madison thus is best interpreted as offering a theory of interpretation consistent with the limited role that originalism might give to consequences.

Thus, originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices from evaluating those consequences in an open-ended way driven by the justices’ values.

Reader Discussion

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on September 07, 2018 at 10:04:20 am

Professor McGinnis raises the question of original originalism in “. . . recognize that William Blackstone himself said that to clarify a text a judge should take into account the “spirit” of legal provision.” I prefer what the signers signed on September 17, 1787 to disconnect from Blackstone and own the propriety to have that preference.

The continental history I understand has these elements: invasion under Catholic doctrine of discovery with slavery; Protestant competition with the Catholic doctrine; eastern-seaboard British colonials realized they were being enslaved by the Blackstone with Canterbury constitutional partnership; farmers liberated Worcester MA, the British never to return; patriots formed a Continental Congress and changed their style from colonists to statesmen; 13 eastern-seaboard states declared war against Blackstone-Canterbury England; France waged their battle against England at Yorktown, VA with the continental army’s help; the 13 free and independent eastern-seaboard states ratified the 1783 Treaty of Paris while the rest of the continent continued their French, Spanish, Mexican and other governments; 12 eastern-seaboard states held a convention to strengthen the Articles of Confederation; of 70 appointees 55 attended and 39 signed the 1787 U.S. Constitution; https://www.constitutionfacts.com/us-constitution-amendments/those-who-didnt-sign-the-constitution/.

Thus, accounting for the rebel state who sent no delegates, 1/3 of delegates opposed the outcome of deliberations in Philadelphia. Accounting for the appointees who did not attend, the signers represented perhaps 51.4% of the people.

I am tempted, but refrain from capitalizing “signers,” but the signers were not ordinary representatives, nor can any founding father override their intentions, discovered from May 1787 to September 17, 1787. A 2018 writer cannot imagine how much collective wisdom those 39 human beings held. After states’ ratifying conventions, the required nine states established the legal change from the confederation of states under Congress to the union of nine states under the people.

However, the first Congress under the union of ten states acted like a procreating, teen aged couple who know nothing about parenting therefore squabble over the four ideas learned from their parents-in-law. Congress re-imposed Blackstone with modification and Canterbury except with factional-American Protestantism by tradition rather than constitutionally.

Some signers collaborated with Congress’s restoration of British tradition. For example, James Madison, in authoring US Amendment VI, wrote that states must provide unanimous jury verdicts. The Senate changed “unanimous” to “impartial.” Madison was following Magna Carta, about which some “founders” were passionate.

However, French-colonial-influenced Louisiana has no such passions and in 1880 adopted 9:3 criminal-jury verdicts so as to improve impartiality. Forty-eight states still require 12:0 verdicts. However, England, in 1967, began to allow 10:2 verdicts so as to lessen the possibility of organized crime or other bigotry from controlling verdicts. Louisiana is presently struggling to preserve its original compliance with US Amendment VI and Amendment XIV.1 as well. [Madison is responsible for more egregious offenses, but they are for other topics and times.]

A more egregious offense against the 39 signers came from the 1857 political expertise of Abraham Lincoln. Faced with a constitution that had left emancipation of the slaves for a more economically viable time, instead of lobbying for emancipation (perhaps citing Frederick Douglass’s 1852 speech, extolling the preamble and the original US Constitution, and citing 1856 “bleeding Kansas”) Lincoln trumped the US Constitution by citing the Declaration of Independence. Thereby, Lincoln relegated We the People of the United States to a dream many fellow citizens expect will never come to pass.

The U.S. has a long way to go to overcome the consequences of British colonialism on the eastern seaboard, and law professors could help by regarding the intentions of the 39 signers over either so-called “founding fathers” or still existing English-constitutional church-state partnership. The words and phrases in the 1787 Constitution represent the original originalism with neither dissent nor deceit.

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Phil Beaver
on September 07, 2018 at 17:33:47 pm
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Pukka Luftmensch
on September 07, 2018 at 18:29:21 pm

Second reply: After further reflecting on the words of Professor McGinnis (as explicated by Mr. Beaver) I now see myself as akin to the President of the United States in Jerzy Kosinki's novel, "Being There." I've just been handed a written message (McGinnis' commentary) from my new aide, Chauncey Gardiner. I find the message, at first blush, to be both inscrutable and unimportant. Yet, because the words are Chauncey's I'm certain that they're valuable. I intend to ask Chauncey some questions when he finishes pruning in the Rose Garden.

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Pukka Luftmensch
on September 07, 2018 at 19:14:18 pm

Then again, no one ever promised our "Chauncey" a Rose Garden and let us hope Chauncey does not lop off his fingers else we will no longer have the benefit of his sagacious and "dignified" (see Kleinerman's scribble) hieroglyphics.

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gabe
on September 10, 2018 at 15:24:44 pm

John:

At first glance, I thought perhaps you were looking to "sneak" consequentialism into your (and Rappaport's) otherwise fine thesis on Language of the Law.
Upon further review, that call is overturned. quite good and quite a succinct explanation / explication of constitutional interpretation / construction AND one which ought to eventually permit one to also consider the PROBLEMS that specific text / clauses were intended to correct.
If one may apprehend the consequences, then one may (perforce) have to examine how those consequences are consistent or inconsistent with the Framers solution to specific problems.

BTW: Are you and Rappaport working on a book re: Language of the Law?

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gabe
on September 18, 2018 at 05:47:10 am

[…] my last three posts, I have discussed how to reconcile the modalities method of interpretation with originalism. To […]

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How Originalism Integrates Precedent, Part I
on October 04, 2018 at 23:06:13 pm

Lee Edwards’ essay, “Toward a New Fusionism,” National Affairs, No. 36, Summer 2018, tacitly lays the groundwork for acceptance of a culture wherein inhabitants divide over the individual opportunity to offer mutual, comprehensive safety and security---the human being’s common good. In this culture, a civic people collaborate for individual happiness with civic integrity and develop statutory justice whereby dissidents such as criminals are constrained. One agreement to collaborate is expressed in the preamble to the U.S. Constitution.

A culture of Security may be established through three collaborations: civic integrity, a civic agreement, and the work to discover the-objective-truth. By “civic” I mean behavior that provides individual happiness with mutual, comprehensive safety and security rather than competition for dominant opinion. This way of living may emerge from “the conservative movement” conservatives forego emphasis on “tradition” so as to coach humankind to live at the leading edge of integrity. The-objective-truth may be discovered but cannot be constructed by reason. In other words, the-objective-truth does not respond to reason or other human construct.

Conservatives of all types are more likely than democratic liberals to choose to discover the-objective-truth and understand how to benefit. In other words, conservatives are more likely to acquire the self-discipline to conform to the-objective-truth yet strive for individual happiness. That is, by developing fidelity to the-objective-truth, conservatives may maintain civic integrity without compromise, surrender, or subjugation to others. In other words conservatives may choose to neither initiate nor tolerate deceit.

Integrity is a process: do the work to understand whether what is perceived is actually real or a mirage; do the work to understand how to benefit from the actually real; behave according to the understanding; publically declare the benefits obtained by the behavior; listen to public reactions to the understanding so as to collaborate for mutual improvement; remain open minded for discovery that requires change in behavior so as to lessen misery and loss.
The framers of the 1787 Constitution had negotiated a clean revolution from the influence of colonial England. However, they knew that some debates had not resolved weaknesses, so they provided for amendment by the people. The preamble states the purpose and goals of legally changing the Confederation of States to a Union to serve the people in their states. Some framers objected to the clean break from Blackstone, some wanted the states to control the nation, and other complaints kept 1/3 of framers from being 1787 signers.

The required nine states ratified the legal change on June 21, 1788. The next day, dissenting states were separate countries, as specified in the 1783 Treaty of Paris. But within two months, two more states joined, so there were eleven with the U.S. began operating on March 4, 1789.

The Union grew to 33 states, and in 1861, War Between the States over religious opinion exploded. The offender, the Confederate States of America, listed grievances then declared secession, concluding that there could be no peaceful settlement because the north was influenced by “more erroneous religious belief.” The erroneous belief was that blacks were slaves because of previous sin and that only God could decide when repentance had been served. The erroneous religion persisted for at least a century after the Union’s military power settled that states cannot secede without military dominance.

A remarkable reform occurred with the civil rights and voter rights acts of 1964-5, but five decades after that have been a disaster. AMO---Alinsky-Marxist organization has created one victim identity after another: race, gender, sex preference, gender preference, and coalitions of special identities. Christianity, the offender against the preamble, has victimized itself with factional child abuse and parishioner abuse as well as the 1968 emergence of African-American Christianity. What civic agreement in Africa attracts a black American to choose tribal division as African-American? What happens now?
We the People of the United States may at last consider and promote the civic agreement that is offered in the preamble to the U.S. Constitution. By that agreement rather than arbitrary classism, the people---fellow citizens as well as resident aliens---divide into the willing and the dissident. The willing people collaborate for individual happiness with civic integrity and discipline local, state, and national governments so as to constrain fellow citizens who cause actually-real harm. Neglected and repressed since June 21, 1788, it will take a few years for the preamble’s agreement to become influential for civic integrity.

Like the consensus attempted by Frank Meyer built on the fear of communism, the people now face a common danger: popular conversion of the American republic into a social democracy. Awareness of this threat can emerge from both the left and the right. However, both sides must turn their backs on scholarly phrases that establish political separation---phrases like “ordered liberty,” “classical liberals, “the Founders,” and “blue-collar billionaire.” Most importantly, conservatives may decide that they do not want civic collaboration about the characteristics of their gods or other traditions, and lead in the separation of church from state at last. The Republicans could lead the amendment of the First Amendment so as to defend and promote every individual’s pursuit of civic integrity, leaving religion or spirituality or none as a private choice.

If there is a new fusionism conference, I hope these ideas will be presented, and “fusionist John McGinnis” (quoting Edwards) could choose to be the champion.

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Phil Beaver

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.