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Originalism Encompasses Text and Structure

I had the pleasure of being on panel with Pamela Karlan of Stanford Law School at the Eighth Circuit Judicial conference. There she set forth a view of the “modalities” of constitutional interpretation, arguing that judges should consider a variety of factors in interpreting our fundamental law. She opposed originalism. Indeed, original meaning was not even included as a factor, as I remember.

We did not have a chance to respond to one another directly, because the audience was given the time after our talks to ask questions. But I would have said that originalism of the best kind encompasses modalities that help fix meaning and rightly does not include those that don’t. In a series of posts, I will describe how originalism responds to each of Professor Karlan’s various “modalities.” To be fair, I may not remember them all.

Text—Almost all forms originalism include text as a consideration. Public meaning originalism makes it the primary one. Mike Rappaport and I have suggested that the Constitution is written in the language of the law and thus it is a legal text’s meaning that is relevant. In this form of originalism, some of Professor Karlan’s amusing jokes about the inadequacy of the text to resolve issues would fall flat. For instance, she wondered whether the phrase “natural born citizen” would include someone born by Caesarean. But as Michael Ramsey shows, “natural born” was a legal term that emerged in British legislation. Understood with reference to prior law, there would be no doubt that the legal meaning would include a Caesarean birth within the territory of the United States and this meaning would resolve many other possibly disputed issues.

Structure—Professor Karlan also suggested that structure could be relevant. Most originalists would agree that the meaning of the Constitution is not clause-bound and that the structure of the entire document could sometimes be relevant to resolving the original meaning of texts that might otherwise be unclear.

For instance, the use of words in other provisions can sometimes shed light on the meaning of the one at issue. In McCulloch v. Maryland, Chief Justice John Marshall interpreted the term “Necessary” in the Necessary and Proper Clause by noting that the phrase “strictly necessarily” was used elsewhere in the Constitution. This other use provided evidence that the unmodified term “necessary” did not mean strictly necessary, but something closer to conducive. Such arguments now go under the name of intratextualism but they were deployed before the Founding as well. Thus, under original methods of originalism, like other rules deemed applicable at the time, the  intratexualist canon helps constitute the meaning of words and phrases in the Constitution. There is nothing about originalism in general that suggests that terms should be read in isolation from others and original methods confirms that they were not so interpreted.

Original methods originalism would also agree that entire structures of the Constitution, like the separation of powers, which was mentioned by Professor Karlan, might be relevant as well. For instance, interpreting the Virginia Constitution in 1794, some judges in Kamper v. Hawkins relied on a general separation of powers provision to help determine whether a judicial court was appropriately established under clauses that were more specific but not nevertheless completely clear. Such general structural arguments were likely alive and well at the Founding. And that makes sense: the structure of institutions created by a legal document may clarify the more specific words defining the operations of those institutions.

But structural arguments have to be used with care, because there is a temptation to treat structure at a very high level of generality to defeat the meaning of more specific provisions. This is a problem, akin to one that Mike Rappaport and I have described as the abstract meaning fallacy of assigning too abstract a meaning to a constitutional provision and thus creating judicial discretion where none or less existed.

In my next post, I will describe how the next modality of Professor Karlan’s—promoting democracy—provides another example of this fallacy, But the important point of this post is that Professor Karlan’s first two modalities are ones that are encompassed—indeed at times—demanded by the best understanding of originalism.

Reader Discussion

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on August 21, 2018 at 09:20:34 am

Good abstract on the "abstract meaning fallacy."

The more i consider McGinnis' and Rappaport's' Legal Meaning Theory, the more I am prepared to embrace it; and it would seem that there is nothing in Language of the Law (LOL, no pun intended, or maybe there is Mr Dworkin) that would prohibit a skilled reviewer from explicating the meaning of certain (presumed) indeterminate clauses / text that the proponents of other methodologies lay claim to.
Indeed, the value of LOL is that it imposes certain limits upon the "diviner" of constitutional meaning - limits which tie one to history, tradition and law as understood and practiced at the time of the Founding.

While it has been said that the Declaration is the *inspiration* for COTUS, the abstract principles of the DOI have nevertheless been constrained by the LEGAL text of COTUS and the attainment of those abstractions MUST be pursued within the legal limits, both structural and textual set forth in COTUS.

So too is the fallacy of divining specific *intent* of either the Drafters or even the public. If it is true, and i believe it is, that it is exceedingly difficult to discover the intent of 500 plus Legislators, how much more difficult is it to discover the intent of the public. (I'll skip a long survey of the matter but HOW different were the Colonial electorates than those of today (See W. Voegeli's recent essay)). Are we to create an *intent* algorithm to discover this. (heck, will FaceBook / Twitter create it).
Thus, both intent and abstractions are either lost to time or non-discoverable.
We are left only with the text - a Legal text; as such it may not be isolated from the legal ground and history frwom which it arose.

Yep, I rather like LOL.

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gabe
on August 21, 2018 at 09:34:53 am

Karlan's lesson from Shakespeare re birthright citizenship excluding Caesarian births may, more than a mere "little joke," reflect her (and others') fundamentally false understanding and overconfident certainty about originalism, due in part because she has made Macbeth's fatal mistake of confusing literalism ("none of woman born") with textualism, a misinterpretation of prophecy that caused his doom and of constitution that causes her to make ruinous interpretative errors.

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Pukka Luftmensch
on August 21, 2018 at 10:07:51 am

Speaking of birthright citizenship, here is an interesting piece from Andrew Hyman at Originalism Blog;

http://originalismblog.typepad.com/the-originalism-blog/2018/08/the-entry-fiction-and-the-citizenship-clauseandrew-hyman.html

It touches, I think, upon McGinnis assertion that we need to view COTUS' text in legal terms.

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gabe
on August 21, 2018 at 10:19:59 am

There you go again, giving destructive ideas to those who cherish them. Now you've come up with the notion of an "intent algorithm" for the judiciary. Put that in a computer model with a continuous modification feedback loop (it is, after all, "a LIVING constitution we are expounding," as Brennan would so artfully modify Marshall) and you could displace the need for "real people" as Article III judges.

You and I might think the latter an improvement over the last 78 years of constitutional jurisprudence; nobody would love the former.

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Pukka Luftmensch
on August 21, 2018 at 10:43:33 am

I enjoyed the article, Professor. I enjoyed its structure and its persuasive force. However, I am stumped, unnecessarily, perhaps, but what does the phrase, “but not necessarily not completely clear” mean, if I might rather boldly ask? I have parsed it and I think I know, but how am I a retired Judge and now a “street person” to interpret this phrase, and what does it mean in contemporary context that you, as I did above, omit commas on both sides of your term, “necessary?” The phrase may mean one thing to you as author, but another to me as interpreter. Well, in the words of the late John Chardy, I do hope I spelled his name correctly, “Good words to you.”

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Robert H. Howerton
on August 21, 2018 at 12:02:20 pm

Dear Judge Howerton--It is typographical error. I have an additional not when one would have sufficed. It is now corrected. Thanks.

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John O. McGinnis
on August 21, 2018 at 13:07:25 pm

In July, Michael Anton stated the same position the position in a WaPo op-ed and at CRB. https://www.claremont.org/crb/basicpage/birthright-citizenship-a-response-to-my-critics/

All are similar to the "no Person born outside the Kingdoms" test in § III of the English Settlement Act of 1701. https://www.british-history.ac.uk/statutes-realm/vol7/pp636-638#fnn3

As for McGinnis and his ongoing seminar on weasel words for judicial supremacists, does he expect us to accept that "necessary" really means "convenient" simply because the one other use of the word necessary in the document added the adjective "strictly"? I think this reasoning might be dismissed as bootstrapping.

As Jefferson observed, Marshall's speciality was dicta and his broad interpretations of constitutional language should be generally be treated as wrong absent compelling evidence to the contrary.

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EK
on August 21, 2018 at 14:41:50 pm

Thanks for that, and I agree with your point re "legal" textualism and birthright citizenship. This whole debate about birthright citizenship is a crock. Kudos to "Flight 93" author and former Trump White House staffer Michael Anton for inflaming the Left and the Never Trumpers by intelligently revisiting the issue recently to assert solid conclusions that would corroborate your point, although he does rely on historical sources (legislators' and drafters' contemporaneous statements during debate) to support his assertions as to original meaning:

http://www.claremont.org/crb/basicpage/birthright-citizenship-a-response-to-my-critics/

http://thefederalist.com/2018/07/23/no-fourteenth-amendment-not-authorize-birthright-citizenship/

When one finds himself standing athwart a matter of originalism opposed both by the PC Left and the saturnine herd of Never Trumpers one's confidence level must surely rise.

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Pukka Luftmensch
on August 22, 2018 at 19:50:37 pm

It's interesting, with a few exceptions (by Mark Pulliam and Forrest Nabors both of whom have replied frequently to comments and once by Professor Rappaport replying briefly to a recent Trump SpyGate question that was wholly irrelevant to his article) I am unaware of an L&L essayist replying to any comments, even substantive comments by commenters who have invited/ requested specific replies. I have made such requests myself and been ignored (except for the occasion when Richard Reinsch simply deleted my several contentious, unfavorable comments/questions about his methodology in the "Mere Civility" podcast. (I see that as Reinsch's "reply" in kind.)

Thus, it seems odd that Professor McGinnis would reply to an inconsequential comment about what was self-evidently a typographical error and a matter utterly of no consequence.

Just sayin.
Primus inter pares, perhaps, among commenters?

Gods, Generals and Judges?

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Pukka Luftmensch
on August 23, 2018 at 09:18:46 am

Perhaps, it is because he is not inclined to respond to nobody's such as us. Oops, hey, we are not nobody!

Then again, we are a talkative bunch - BUT - one would, at times, appreciate a response to a substantive question; but I suppose only having been an Infantry Sergeant and not a General, I'll have to wait.

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gabe
on August 23, 2018 at 10:09:54 am

So it goes! But just consider: Instead of mere Infantry Sergeant, had you served as Judge Advocate General you'd have two of the coveted titles of mortal elites, Generals and Judges, and not be grasping for respect among us Rodney Dangerfields. Further, had you taught law school you'd be a God and supernaturally entitled to a response from L&L to the most niggling question.

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Pukka Luftmensch
on September 07, 2018 at 08:30:12 am

[…] the last two posts, I have been arguing that originalism can comprehend many of the so-called modalities of […]

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How Originalism Addresses Consequences

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.