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Originalism 101 (Part I)

Recently, Larry Solum put up a Legal Theory Lexicon entry on Originalism.  For those who are not familiar with these entries, they are short discussions of legal theory topics for first year law students.  They are quite excellent and are helpful for legal scholars well beyond the first year of law school.

In this post, I would like to react to Larry’s post on Originalism.  This reaction is not in any way a criticism of Larry’s post.  Instead, I use Larry’s discussion as a jumping off point to discuss some issues that he did not address because of the space limitations and to give my take on them.  I have four basic points to make.  I will make two today and two in tomorrow’s post.

1.  The Origins of Originalism

Larry starts his discussion or originalism with Raoul Berger’s 1977 book, Government by Judiciary.  This is probably the correct place to start for modern originalism.  But I think it is well worth emphasizing that originalism exists at the time of the Constitution’s enactment.  The two leading interpretive approaches in the early years – John Marshall’s interpretation of the Constitution as the fundamental law of the nation and Thomas Jeffersion’s interpretation of it as a compact among the states – were both versions of originalism.  The former was a version of original public meaning; the latter was a version of original intent.

One interesting question is the role of the interpretive rules at the time of the Constitution.  Some theorists claim that these are largly irrelevant to the correctness of originalism.  Others, like John McGinnis and myself, believe that originalism requires that these original interpretive rules be followed.

2.   Positive and Normative Approaches to Originalism

One fundamental distinction in the theory of originalism that Larry discusses is between positive and normative theories of originalism.  The positive type of theory asks what is the meaning of Constitution.  The positive originalist, of course, says it is the original meaning.  The latter type of theory asks what meaning or interpretive approach should be followed.  The normative originalists, of course, says we should follow the original meaning.

But one interesting aspect of originalism is that there are a large number of originalists who are simply positive originalists.  They argue that the meaning of the Constitution is its original meaning, but they do not offer a normative theory for following that meaning and may not even believe that we should.  Gary Lawson, for example, expressly states that he is not willing to offer a normative theory.  Other people claim that originalism is simply a theory of interpretation and does not involve normative questions.  Michael Paulsen seems to argue this way, at least at times.  Larry Alexander and Sai Prakash (my current and former colleagues) also argue that originalism is simply a theory of what it means to interpret a text.  By contrast, my own theory, developed with John McGinnis, offers both a positive and normative theory of originalism.

Update: I changed the last paragraph to correct a possible error.

Reader Discussion

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on March 28, 2012 at 14:32:37 pm

Thank you Professor.

Maybe the Constitution should have been written as a How-To Guide, or with explicit, unambiguous words. However, the English language does not have the words to do so. Each word used would have to be defined with a reference to the entry in a dictionary. And, for this to be retrofitted onto our Constitution would be difficult for one person and near impossible with second opinions.

Using references as to how the Constitution was first used, brings up the issue of who got there first and who never got there at all. Which may then take us back to the spoils of victory and not a collective understanding or intent.

Bringing up Jefferson, brings up a missing element in the construction of the Constitution. Do we allow his presidential actions to make up his absence earlier?

From the Convention and Ratification debates, I'm certain our numbers in the House were to keep pace with our numbers in population, and while a case can be made that the explicit language states 'no more than' it did not indicate for those numbers to stop at a point in time - never to increase again, which is what we have now.

Would our country be to our liking if we had had that representation, in proper proportion all those years? We'll never know, but can anyone say it would have been worse? We'll never know, but we can start respecting ourselves and the Constitution by increasing these House numbers.

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Eric Hodgdon
on March 28, 2012 at 16:43:55 pm

You have mentioned this representation point before. Say we 700 House members rather than 435. Why do you think that would be better?

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Mike Rappaport
on March 29, 2012 at 15:32:46 pm

Sir,

To your question. Seems you'll have an answer in favor of 435 and a valid argument for support. While you may have valid reasons, we can not ignore the Constitution, nor the purpose of our government.

So, 435 or 700? Pick any number, for any number may work, but will the people be properly represented? Worries over cost in $ is not an issue.

How well Congress functions is an issue, and currently they have not gotten better during my life. The distrust and disconnection between us is a, or the, issue to resolve. Between the connections to and from government and the value of decisions made, there does not seem much else to consider. These seem to be the reasons for government. Whether Congress functions better at some numerical level is something we should determine. For some one to propose keeping the current number would inaccurate by any process, for the current number is arbitrary.

Government will have costs, good governments will provide for the people to create and grow. This growth will provide for continuing the government. If the government can not provide for the people to grow, then the people must re-evaluate their government.

While I'm not an engineer by degree, I see this as an engineering problem to update the system, and restore some original closeness to the people.

I was thinking of explicit Art.1 Sec.2 or passage of the original Article the First, in combination with new Congresses of from 4 to 12 Capitols throughout the country acting as equals. These new buildings will be tied together and act as one. The electors will have their proper access with a reasonable distance of travel. The Capitol in DC will cease day to day operations, and serve for special occasions only. (to be determined)

While 6,000 House members may seem to be a dramatic change, with 12 Capitols, the average will be 500 each. Arguments favoring increases are based also on the increased sense that people have regarding not being heard.

Do we need these amounts? I'll not lay my life down to reach these numbers, however, the concentration in Washington DC must physically end - this I may lay my life down for.

While drama plays no part here, fanaticism is absent too. Keeping Washington DC as is, is dangerous and harmful to the country. Basic reasoning is the disconnection from electors by unnatural and excessive influences.

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Eric Hodgdon
on May 01, 2012 at 04:08:22 am

First, it's ad nauseam, not nusueam.Second, the underlying problem with Bush v. Gore is the Constitution itself, which badly needs amending. The Constitution explictly provides for the possibility that the election cannot be decided in the Electoral College, but since the 1876 debacle we are all terrified of of ever going there again and rightfully so. The safe harbor legislation passed in immediate response to Tilden-Hayes is an imperfect patch, as there is nothing to guarantee that the December 12 deadline will be met.It is crystal-clear that what really animated the Bush v. Gore majority was the outright terror that the deadline would be missed and the election would thereafter....take its constitutional course. Seems like a silly thing to be afraid of, doesn't it. If the prescribed constitutional route is so terrifying, it would be much cleaner from a jurisprudential point of view to amend rather than engage in unseemly intellectual contortions (e.g. the Florida Supreme Court had "committed itself" to the December 12 deadline and couldn't be allowed to change its mind, or there are limits to the extent to which a state court may say what constitutes state law) to reach a result.Third, statistical studies tend to show that judicial priors are indeed the dominant factors in how judges apply shifting and fluid legal doctrines. Quel shock. When you say you are not a Legal Realist because Legal Realism "goes too far" in assuming that judges just vote their priors, that is merely a dispute over nomeclature. In fact, you are at least a moderate realist because you do recognize the importance of those priors. (In my version of the nomeclature debate, I would assign the "goes to far" label to CLS, but not to Realism, whereas you conflate the two, which seems to me a tad unfair; Karl Llwellyn was not Duncan Kennedy.)The tragedy of Bush v. Gore is that the cliffhanger in Florida obscured the real anomaly and unfairness of the election, which was that for the first time in more than a century, we elcted a popular-vote loser. The last time that happened, in 1888, the legal landscape was unrecognizably different; the Senate was elected by the legislatures, you wouldn't have been allowed to vote, etc. I wouldn't have thought that the electorate of 2000 would have been comfortable with that, but it all got lost in the partisan fog of the who won Florida nightmare (although the blazing anger of the Gore partisans was largely fueled by this circumstance; it just wouldn't have been the same had Bush won the popular vote). The Electoral College, and indeed the entire Constitutional mechnism for electing a president, has long since outlived its usefulness, part of which, let us not forget, consisted of implementation of the three-fifths compromise; in a non-weighted popular national election there would be no way to count a (non-voting) slave a three-fifths of a person. In the world of political values we live in today, there is no justification for a system in which a Wyoming voter has three times the weight of a California voter (i.e. Cal has more than 60 times the population of Wyoming but only 18 times the electoral votes). In fact, no system can really be justified except the person who gets the most votes wins. That's all that matters. But nobody wants to talk about it.

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Irunka
on May 01, 2012 at 12:31:33 pm

I, for one, appreciate you taknig the time to respond to what some others might not-so-propitiously refer to as "a pile of manure" thrown in your direction. I can't claim to fully understand the intricacies of the law that you reference, nor do I know much about the legal questions involved in Bush v. Gore.I would appreciate any clarification (perhaps in lay terms, however inexact they might be) about Scalia's comment. My understanding is the following:Scalia's statement really has two parts: the first, where he claims that events were set in motion by former Vice-President Gore's legal action; and the second, where he claims that as a result the Supreme Court was forced to decide between allowing the Florida Supreme Court to rule, or to overrule them.Let's set aside part one, as I think there is no way of identifying what was the original cause of the whole schmozzle, and even if Gore's action was the proximate cause, the value of that information is any event moot.As I understand his second assertion, it is that the Supreme Court had an obligation to consider the legalities of what was happening in Florida, inasmuch as the results had implications in deciding the result of a federal election. I accept the argument, by the way, that not intervening would have represented an equally active role for the court.Here's what I don't understand, or am confused about: I thought that the outcome of races in the States was a State matter, despite the overall outcome of the sum of all State results being a Federal matter. In other words, one could only challenge the results of Florida in Florida Court, and that the Supreme Court could not rule on any matters which didn't pertain directly to Federal issues such as the Equal Protection Clause, which was central to arguments heard by the Supremes, wasn't it?If the Supreme Court felt compelled to intervene because they felt that the decision or impending decision of the Florida Court would affect this Federal issue, shouldn't the force of their intervention have applied to all States, and not merely Florda? In other words, what I want to know is, once the Supreme Court ruled were they not obligated to carry things much further than to simply approve the result in Florda?It strikes me that ruling in this way, but then expressly limiting the effect of the ruling in Florida is dubious at best, and bad faith at worst. Have I got this wrong, or at least partially right? And if the latter, it suggests that Scalia is being incredibly disingenuous blaming ALL this on Mr. Gore and Florda. The fact that A decision was taken buy the Supreme Court should not be disturbing; it's the nature of that decision and the scope of it that seem strange to me.If I've gotten anything terribly wrong, please don't hesitate to let me know.

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Auth
on May 03, 2012 at 22:40:22 pm

Your point about Griswold is perfectly araccute, but the question is not whether people are necessarily biased in favor of legal opinions that match their moral or political beliefs, but more that they are biased in favor of legal outcomes. So, there are plenty who like the result in Griswold but will say its reasoning was ridiculous, but how many of those would say that the outcome could not be reached on any legitimate legal grounds? Some arguments that might be attractive to liberals who who think penumbras and emanations was a bit much: Establishment Clause because the law was religiously motivated and strongly backed by religious groups; Due Process Clause on notice grounds because the law was virtually never enforced; a Lawrence-style argument that the state simply may not ban behavior that causes no societal harm because it is considered immoral.

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Upashna
on June 09, 2012 at 23:04:50 pm

The Second Amendment was overwhelmingly seen as a meicanhsm for ensuring state authority over arming, and regulating, the state militias, without undue federal interference.So what import does this have for the Heller case? Or federal regulation of firearms generally? If you're right, does this mean that as against the federal government, strict scrutiny applies? Don't answer, I am off to read the brief.

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Shazad
on June 10, 2012 at 02:59:13 am

Maybe judges sholud work hard and selflessly at a job made boring by intellectual abstemiousness. But if they are going to talk about it to a nicely nodding group, well, for me, it's a strange environment.Quite apart from the intellectual content, I think the FedSoc is often a little too choir-preachy, to tell the truth. I agree with the basic idea, and with the substantive ideas of some of the more conservative wing of the society, but . . . I attended a talk where Meese was talking, and even when I agreed with him he larded it up with so many Clinton jokes that I felt, honestly, a bit uncomfortable. I thought Clinton was a mediocre president, even by contemporary standards, but he'd been out of office for four years by that time. And they were still cracking (and laughing appreciatively at) Clinton jokes. I thought it was rather sad.

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Yongshik
on June 10, 2012 at 04:11:07 am

You ought to come to the national anuanl conference. The panels are usually larded with some fairly staunch liberals, and when you get a less homogenous group - which the national conference really is - the questioning is a bit hotter. The libertarian Fed Soc-ers often put the social conservative panelists on the spot, the social conservatives go after the liberals & libertarian panelists...Well, "go after" is a relative term. It is less polite than Supreme Court argument, but more polite than state district court argument, tougher than Larry King, but doesn't rise to anywhere near the level of Chris Matthews.

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Krysztyna
on June 12, 2012 at 02:28:02 am

I think you're right that a desire to amend it is a prflectey reasonable response to the Constitution. And certainly there needs to be a balance between judicial interpretation of the Constitution as a free-standing document and deference to the interpretation of the legislative and executive branches.But the possibility of amending is drastically complicated if you begin with the proposition that the Constitution was once perfect. From that perspective, Constitutional amendments (including those passed between 1865 and 1913) are suspect by default. The only amendments for which there is rhetorical space are those aimed not at correcting or improving the Constitution (except as it's been changed) but at reigning in government. So, conservatives encourage Constitutional amendments on marriage and balanced budgets in order to tie the hands of federal officials they don't trust from taking actions that they think the Constitution already precludes.You comment on slavery foreshadows a post I have for Wednesday on the imperfection of the original Constitution. (I'm trying to spread my postings to increase some consistency here.)

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Bleasunny
on June 12, 2012 at 05:18:35 am

The whole broccoli aoganly breaks down for me because we do NOT have laws that say that if I am suddenly feeling peckish, I can present myself at the Emergency Kitchen at the local hospital and get fed potentially enormous amounts of food by highly trained chefs who are legally required to not turn me away. And we do not maintain a nationwide emergency number I can call if I get a hunger pang, and know that a vehicle with para-chefs will be sent to my location to provide me with first-food, and take me to the Emergency Kitchen if it seems like my hunger is real and requires more serious feeding.I'd be far more content to listen to all these rugged individualists who don't want to be forced to buy insurance if they were fiercely fighting for the right to be tatooed with big DON'T TREAT ME marks on their foreheads, and changes to the laws so that they could really and truly NOT be in the health care market. They want out, fine with me, it's their stupidity. But this claiming their freedom is being attacked while they're happily accepting that every day, every second, they'd be whisked into an ambulance and an ER should they get happen to get hit by a car or have a heart attack, is just plain BS. Their freedom to not participate in the market was taken from them years ago, when the laws that mandate treatment got passed. Now we're just talking about the best mechanism for coping with the free-rider problem.(And, finally, just for those who keep braying about where the limits of government power would be if the mandate is upheld, I'll just repeat, it'll be in the Congressional system of representative democracy, where it always has been. The suggestion that the corn lobby would ever let the broccoli mandate get passed is absurd.)

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June

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