Mary Bilder on Constitutional Originalism

There have been a couple of blog posts on Professor Mary Bilder’s op ed (link no longer available) on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis.  I don’t mean to pile on, but there are some important questions that remain to be addressed.

Mary Bilder is an important law professor who is also a legal historian.  Her op ed reflects the views of many historians about originalism and therefore I believe it warrants some attention.  I should say that I have enjoyed Bilder’s work in the past.  Her article on the Corporate Origins of Judicial Review is an excellent one, as is her book on colonial law.

But I disagree with much of what Bilder has to say about originalism.  The basics of her argument is that originalists argue for an interpretive method that is inconsistent with the process of the enactment of the Constitution.  She writes:

Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.  Yet this vision of the Constitution is far different from what we see when we read the historical sources of that moment. In 1787, the framers were struggling to save the United States from division, potential invasion, and collapse. No one had the luxury of even imagining that each and every word possessed an invariable, sacred meaning.

John McGinnis notes that the Constitution actually was written by a team of elite lawyers.  And I would add that the Bill of Rights was written by a team of legislators.  But put this to the side.

It is not entirely clear how Bilder believes the Constitution should be interpreted.  But she appears to claim that the rush of the drafting process made it too difficult to take the words employed in the Constitution as having overriding importance.

Let me examine each of these claims.  First, the original methods approach to constitutional interpretation requires that one interpret the Constitution as using the methods that people at the time would have been employed.  Thus, it is wrong to claim that original methods requires that the Constitution be interpreted as a modern technical contract would be, unless that was the method employed at the time (which it probably was not).

Second, Bilder claims that the rush of events suggests that the Constitution should not be interpreted in accordance with its original meaning.  But this is also problematic.  Even if the Constitution was rushed, how does Bilder think people would have expected the Constitution to be interpreted?  They no doubt believed it would have been interpreted as other constitutions (and as statutes of similar length) would have been interpreted.  Thus, even if they were rushing, their aim was to produce a document that would make sense in terms of the interpretive rules at the time.

These points are confirmed by early interpreters.  For example, John Marshall never says, we can’t interpret the words of the Constitution carefully because the Framers were rushing to get it done and might have overlooked some nuances.  Instead, he treats the text as very important, employing rules such as the “rule of construction acknowledged by all that the exceptions from a power mark its extent” – a rule that he employed in Gibbons v. Ogden which requires careful consideration of the words.

Ultimately, the Constitution should be interpreted as people at the time would have interpreted documents of this sort.  I’m not sure whether Bilder disagrees with this or simply believes that interpretive methods at the time were more discretionary than originalists typically claim.  But if she does disagree with the claim that the Constitution should be interpreted differently than people at the time would have interpreted document of this sort, I would be curious how she believes they should be interpreted (and why that is justified).

Reader Discussion

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on April 04, 2017 at 09:32:32 am


Your observation regarding the legislative experience of the framers of the Bill of Rights is apt for the framers at the Philadelphia convention as well. But this strikes me as posing a problem for the kind of originalism for which you advocate. The framers, as Professor Bilder rightly observes, confronted a political situation that just about every observer at the time considered to be urgent. The continental Union faced imminent collapse, and most American statesmen believed that dire consequences would follow were that to happen. Moreover, they also confronted basic constitutional issues over which there was no consensus. Under those circumstances, responsible, prudent legislators purposefully frame their language loosely and ambiguously, in effect punting resolution of intractable issues to later generations who, perhaps, faced less dire situations. The Pacificus-Helvedius debate, in which two authoritative framers squared off over interpretation of an ambiguous constitutional issue, provides one example of the kind of constitutional fuzziness I am suggesting is present in the document the Philadelphia convention proposed.

If this is so, then doesn't that create a problem for originalism?

Best wishes,

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Kevin R. Hardwick
on April 04, 2017 at 10:36:18 am

"Under those circumstances, responsible, prudent legislators purposefully frame their language loosely and ambiguously, in effect punting resolution of intractable issues to later generations who, perhaps, faced less dire situations" :

Really, now, Mr. Hardwick, in all due respect; Is this bold assertion drawn from some, "Prudent Legislators Manual for Purposeful Legislating During Dire Circumstances" available to, and proven to be relied upon by the Framers?

It seems it could be just as confidently asserted that, "Under those circumstances, prudent legislators purposefully frame their language narrowly and purposefully, so later generations faced with less dire situations are not tempted, out of laziness or malice, to misinterpret or misrepresent the constitutional intent and language towards their own ends.

It would also seem, as many/most of these Framers of the Constitution were (likely) the same Framers of the Articles of Confederation, and subsequently, were first-hand observers of the pit-falls and negative consequences of the Articles, that prudence and personal honor would dictate that when reconvened for another hand constructing a proper, workable, lasting Constitution, the Framers would be extremely careful in their reasoning and language.

In my view, Prof. Rappaport and the other critics of Prof. Bilder's recent Op-ed I've read, are more persuasive in their refutations, than Bilder is in her assertion. For me, the only remaining question is whether Bilder was merely being purposely provocative, or provocatively purposeful? Perhaps the answer lies within the timing of this Op-ed.

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Paul Binotto
on April 04, 2017 at 11:23:45 am


" Under those circumstances, responsible, prudent legislators purposefully frame their language loosely and ambiguously, in effect punting resolution of intractable issues to later generations who, perhaps, faced less dire situations. "

Clearly, the Framers did confront *dire* circumstances. Undoubtedly, there was immense pressure to provide a structure of government that would be sufficient to protect the young nation, who at the time was unable to defend its own borders, nor to remove British troops from its soil (see Upstate NY, etc). While these men may have been both harried and hurried, however, it does not necessarily follow that they would be "sloppy" or "loose."
Yet, it is clear that, at least in some instances they did "punt" as you say, to another day. The question is: Did they *punt* without regard to legal norms / terms / rules and language?

Here are two examples of Constitutional text crafted to overcome some fundamental, seemingly intractable problems.

Art 1, Sec 2, Para 3:
"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

Would you characterize the 3/5ths compromise as "loose" - or fairly tight and concise? Is it susceptible to a clear and unambiguous meaning? It is, to my mind, a rather elegant way of answering questions on both Taxation, representation and the "electoral import" (no pun intended) of non-free persons on the overall scheme of Representative government. I do not recall anyone at the time having difficulty applying this rule / clause.

Art 1, Sec 9, Para 1:
"The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Now this is a PUNT!

And yet, it may not be said to be either loose or ambiguous. I'll not repeat the history of the controversy at the time of the Framing regarding human slavery as you are far better versed in this than am I. Yes, they punted; yes, both sides punted; but as best they could, an agreement was reached that satisfied both sides. After some period, importation of slaves would cease. Prior to that a SIGNIFICANT sum of money would be assessed. Intent was to slow the rate of importation until prohibition. some hoped the practice would eventually die off. All parties to the drafting / acceptance of the text understood this. Yet, they all signed and all understood the import of the text for this particular punt. Look at the words: The term slave does not appear. Well crafted, I would say and with no ambiguity regarding intent, times periods, limits upon the Congress, etc.

Punting does not necessarily imply ambiguity, lack of clear intent / purpose, etc. or poor textual craftsmanship.
To my knowledge when January 1, 1808 arrived there was no controversy surrounding the "importation clause."

These are but two examples; others are also present in the document. And yes, there is some ambiguity that we in present circumstances perceive. Some of this is due to our own changed circumstances / perceptions; some may be due to the general frailty of human language / cognition. How much is intentionally vague / ambiguous may APPEAR to be a proper question. I think, however, along with McGinnis and Rappaport, that there were and are "rules" that set and define the limit(s) of those ambiguities, intentional or otherwise.

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on April 06, 2017 at 02:46:48 am

The standard of interpretation for the Constitution is not the public lay meaning of its terms, but the public legal meaning of them, guided by established common law rules of construction in the Whig school of interpretation that prevailed among the Founders (not the Tory school).

See http://constitutionalism.blogspot.com/2016/08/three-schools-of-interpretation.html

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Jon Roland

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