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Public Meaning Originalism Is Not Indifferent to Evidence About the Intent of the Framers

On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.

Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.

On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.

Moreover, in articulating our own theory of original methods originalism, Mike Rappaport and I provide a specific reason why public meaning originalists might consult intent without thinking that public meaning necessarily collapses into intent. Public meaning originalists should employ the interpretive rules of the time. As we say:

The original public meaning approach should also employ the original interpretive rules because this approach focuses on the understanding of a competent and reasonable speaker at the time of the Constitution’s enactment. Just as such a person recognizes that his understanding of the language depends on conventions for word meaning and grammatical rules, he also recognizes that his understanding depends on widely applied interpretive rules. And just as such a person recognizes that there are specialized word meanings, so he recognizes that specific documents may be subject to specific interpretive rules.

One rule of the time attested by jurists was to consult intent if the meaning collected from the words alone were ambiguous. That rule would provide a specific reason to examine intent even within the public meaning paradigm.

Professor Buckley also says:

Of course, the great advantage of Original Meaning originalism is that it permits one to play fast and loose with history, to pretend to an understanding of the past which does not require the effort of paying close attention to how people of the time felt.

I reject this criticism. Of course, any interpretive method may play fast and loose with the evidence. There is surely both good and bad originalism. As to what people felt, that can conceivably be relevant if bears on what the words meant. But there are all sorts of interesting inquiries that historians conduct that do not shed much light on legal meaning. Randy Barnett and Mike Rappaport both have excellent posts contrasting the enterprises of most historians with that of the originalist.

Finally, Buckley suggests that originalists are “uncomfortable with Gordon Wood.” Not this originalist. Although I cannot say I endorse every word Professor Wood has ever written, he is a great historian whom I have read with pleasure and great benefit and have cited in my work.

Reader Discussion

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on November 10, 2015 at 15:07:36 pm

Originalism seems to imply that a single, stable meaning for sentences in the Constitution can be determined today, to guide us to fixed, true interpretations of the sentences and phrases of the constitution.

I think for some phrases and some sentences, this is straightforward and plausible. But it seems very likely to me that it can not be true of all phrases and all sentences in the document. To believe orherwise is to think that the Philadelphia convention was not a political moment.

One of the features of politics is that in order to accomplish anything, participants in political conversations must create compromises and ambiguities. Part of the art of politics is knowing when to punt a problem down the road, for later generations to resolve. The way politicians do that is by purposefully crafting ambiguous language. Originalism works, or works best anyway, when the people who framed the sentences and phrases were not purposefully being ambiguous.

Consider. In 1794, George Washington proclaimed US neutrality, in the process very likely annulling portions of an earlier treaty with France. Was this action constitutional? One rather thoughtful, smart, and articulate framer said yes; another thoughtful, smart, articulate framer said no. The issue was explored in a number of sophisticated pamphlets, published under the pseudonyms "Pacificus" and "Helvidius."

If there is a stable meaning to be recovered, they both can not be right. Both authors--Alexander Hamilton and James Madison--spoke on behalf of different groups of framers, who had rival visions for executive power and authority. In 1787--at least if we can rely on Madison's notes to guide us--these rival, incompatible visions were negotiated by compromise and by artful utilization of ambiguous language. There was, in other words, no single, stable, original meaning to recover. This ambiguity survived until circumstances--Washington's careful and prudent foreign policy--forced it out into the open. The pamphlet debate between Hamilton and Madison usefully clarified the rival positions, but did not resolve the issue.

There were many moments of compromise in Philadelphia in 1787. That implies that there were many ambiguities, many places where a stable original intent does not exist to recover, embedded in the text of the constitution.

I very much would like originalism to be true. But given these considerstions, how can it be? Everything we know (and despise) about human nature and the negotiation of public affairs, suggests that artful ambiguity is one of those necessary features of a publc conversation that permits us to resolve our differences peacably, rather than through violence. If the conversation that produced the constitution was a political conversation (and it surely was), then how is it possible for that document to be free of ambiguity?

What am I missing here? The objection I raise here is so obvious, I can not possibly be the first person to have apprehended it. I am confident that the people who advocate for originalism are learned and very intelligent. So I am confident that either my logic here is faulty, or else that originalism is sufficiently flexible as to be able to incorporate and account for the kinds of political ambiguity I describe. Help, please?

As an aside, if I am right about the character of the constitution--that it contains multiple, purposeful instances in which the framers compromised--then we are presented with a knotty epistemological problem. Since (as Mary Sarah Bilder has most usefully reminded us, in her book MADISON'S HAND) our insight into what actually was said in the Philadelphia convention is flawed and imperfect, isn't it possible that we may not be able to distinguish those clauses in the constitution that are ambiguous from those that are not? Under those circumstances, would not the prudent thing to do to be to acknowledge the epistemological uncertainty, and treat the entire document as ambiguous, and hence not amenable to originalism?

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Kevin R. Hardwick
on November 10, 2015 at 16:44:03 pm

Kevin:

1) You are not the only one who is troubled by a method of interpretation which seeks to limit its inquiry into "words" or text alone.
2) Clearly, as you say, Philadelphia was a *political* moment and that which arose from that moment was a *political* document with politically negotiated text. I sometimes wonder, if in our due reverence for those men who framed not just the constitution BUT the "compromises" necessary to obtain supermajority support, if we do not blind ourselves in the reflected illumination from seeing the "everyday," the commonplace" in their actions, i.e., the desire to avoid conflict (undue conflict, perhaps) and the consequent willingness to compromise. when such compromise could not be clearly attained, would not these fellows (just as you or I would today) seek some "face-saving" means (not personal face-saving) to assure that the Convention AND its work would proceed to a successful (if compromised) conclusion.
3) That being said, I believe that if we understand these compromises, in effect the decisions that the Framers CHOSE to make in order to cement allegiance, we may find a more fruitful path to a considered understanding and interpretation of the DOCUMENT - not simply the text. And I think, in this regard, a top-notch historian may do more to further a legal interpretive method than a legal scholar who may seek to advance a particular (or novel) theory of interpretation.

Anyway, it simply seems wrong to fail to consider what the Framers thought they were deciding AND not deciding when they committed words to parchment.
None of the text was created ex nihilo; it was not as if some folks decided to "Hey, let's write some laws or maybe even a Constitution." There were concrete issues to be addressed - some of them were solvable at the time - some were not. Oddly enough, to my mind, if we are able to do this, to understand, even grasp these decisions / compromises, we may shed greater light on the underlying or unifying theme - not just in the document but also in the minds (intents?) of the Framers.

Ahhh!!!! but what the heck do I know.

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gabe
on November 10, 2015 at 17:55:24 pm

Gabe--

I fully get the appeal of orginalism--at least as I understand it. We have in this century a deep appreciation for the malleability of language. Pragmatic constitutional interpretation seems in the end to reduce to "might makes right" and to be one source of legitimacy for the administrative state. It seems in the end antithetical to the idea of limited government. That is the path to despotism.

So I really would be much happier if I believed originalism provided a viable alternative to pragmatism. It accords well with our deepest public instincts--there is something right about agreements being binding until democratically changed. Surely if we as a people stand for anything, it is democratic negotiation of law rather than law imposed by fiat. Originalism seems truer to our foundational principles than does pragmatism.

I just don't see how to make it work.

There are some very smart people who post here. I am hopeful that someone smarter than I am--Professors McGinnis and Rappaport at the head of that particular line--will show how to resolve the problem!

Well wishes,
Kevin

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Kevin R. Hardwick
on November 11, 2015 at 10:45:10 am

Kevin:

Me. too.

In fact, I just realized I had forgotten to make a request of both McGinnis and Rappaport to respond to the questions you posed in your first post.

Like you I wish originalism would do the trick - maybe it will if some bright folks both at the bar and the library stacks can develop something more robust than "textualism."

It seems so obvious to me (one of the *un-initiated*, of course) that the whole thrust of the document is to limit government; yet we see even on these pages rationales for expanded governmental power or "band-aid" fixes for the Administrative behemoth which impinges upon our daily lives in countless and ill-defined ways. What sort of originalism is this?

McGinniss, Rappaport and others ought to address these concerns; like you, I suspect they have the intellectual horsepower and discipline to do it. Let us hope in the effort they do not disregard the contributions of historians who may provide insight into the "political moments" that led to the document and caused certain compromises / decisions to be made.

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gabe

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