Radical and Moderate Originalism

Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism.

The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime.  The easiest way to get a radical view is through a strong federalism.  If one believes that the Commerce Clause is narrow, that there is no Spending Power, that the Necessary and Proper Clause is very limited, then one can generate a regime that holds Social Security to be unconstitutional, that places significant limits on paper money, and that treats a large number of federal programs as unconstitutional.  Similarly, if one believes there are strong limits on the states through the 14th Amendment that extend to economic rights, then a significant number of state regulations would be unconstitutional as well.

The moderate originalist, by contrast, believes that the Constitution’s original meaning establishes a regime that is different, but not radically, from the regime under which we live.  In the area of federalism, one can get to this result by believing in strong national power.  In the area of state regulation, one can believe that the 14th Amendment permits incorporation, but otherwise merely prohibits caste legislation.

One sees the differences between these approaches in different theories of originalism.  The radical approach can be easily justified under a popular sovereignty approach to originalism or a variety of other justifications, including the supermajoritarian approach.  This approach looks back to earlier decisions – at the Founding or during Reconstruction – that might differ significantly from our modern institutions.

The moderate approach might seem to be most congenial to the positivist justification of originalism – the view that originalism is our law.  Clearly, if our existing law is binding, and if it is originalist, then there is little divergence between originalism and the existing law.

But this analysis is too simple.  Positivist originalist often have arguments that they employ to uncouple the existing decisions from our law.  For example, Stephen Sachs argues that our law today might adopt certain higher order norms, but then mistakenly apply those norms to reach mistaken decisions.  Even though those decisions are mistaken, our law should still be understood as comprising the higher order norms rather than the mistaken decisions.  Thus, if the higher norms include originalism, then the fact that nonoriginalist decisions are reached does not necessarily mean that nonoriginalism is the law.  For more on this, see here.

Another way that a moderate originalism can be justified is through precedent and related doctrines, such as liquidation.  Under this view, even if the decisions were mistaken when rendered, they can be followed today based on precedent.

But however one reaches the moderate or radical approaches, these two different approaches really capture something very important about how we think about originalism and how it operates.  The radical originalists are something of revolutionaries, believing that our existing institutions are problematic and need to be replaced.  The moderate originalists, by contrast, are much more accepting of our modern institutions, even though they generally seek certain changes.

Reader Discussion

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.

on January 17, 2017 at 16:12:26 pm

Are there REALLY people who dispute the spending power? I would say they are more than "radical" - they are looney-toons!

read full comment
Image of gabe
on January 17, 2017 at 21:10:14 pm

All the Founders would think the Courts current jurisprudence on the so called “general welfare” clause was “loony-toons”. Currently the Court allows Congress to spend money on anything it wants. From an originalist standpoint this is just wrong. None of the Founders believed this (not even Alexander Hamilton which did believe in a broader notion of the power then the other Founders but limited to only general rather than local issues), nor did the Court believe this until at least about 150 years after the Constitution was ratified (and even then it was questionable). This interpretation was also opposed by every person who got the most electoral votes for President of the United States from 1800 when it became an issue until at least the civil war (and many Presidents after that). Only John Quincy Adams believed otherwise (but Jackson got more electoral votes in the only election Adams won but the House threw it to John Quincy Adams after he made a deal with the Speaker to give him the Secretary of State position).

“No argument could be drawn from the terms common defence, and general welfare. The power as to these general purposes, was limited to acts laying taxes for them; and the general purposes themselves were limited and explained by the particular enumeration subjoined. To understand these terms in any sense, that would justify the power in question, would give to Congress an unlimited power; would render nugatory the enumeration of particular powers; would supercede all the powers reserved to the state governments. These terms are copied from the articles of confederation; had it ever been pretended, that they were to be understood otherwise than as here explained?” –James Madison available at http://press-pubs.uchicago.edu/founders/documents/a1_8_1s20.html

“To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.” –Thomas Jefferson available at http://avalon.law.yale.edu/18th_century/bank-tj.asp

“[T]he great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of Federal powers. . . . I suppose an amendment to the Constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which it permits the public moneys to be applied.” –Thomas Jefferson in his sixth annual address available at at http://avalon.law.yale.edu/19th_century/jeffmes6.asp

“To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. . . . A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.” – James Madison available at http://www.presidency.ucsb.edu/ws/index.php?pid=65899

“[I]n addition to the dangers of unequal and improvident expenditures of public moneys common to all, there is super-added to that the conflicting jurisdictions of the respective governments. Federal jurisdiction, at least to the extent I have stated, has been justly regarded by its advocates as necessarily appurtenant to the power in question, if that exists by the Constitution.
That the most injurious conflicts would unavoidably arise between the respective jurisdictions of the State and Federal Governments in the absence of a constitutional provision marking out their respective boundaries can not be doubted. The local advantages to be obtained would induce the States to overlook in the beginning the dangers and difficulties to which they might ultimately be exposed. The powers exercised by the Federal Government would soon be regarded with jealousy by the State authorities, and originating as they must from implication or assumption, it would be impossible to affix to them certain and safe limits.

Opportunities and temptations to the assumption of power incompatible with State sovereignty would be increased and those barriers which resist the tendency of our system toward consolidation greatly weakened. The officers and agents of the General Government might not always have the discretion to abstain from intermeddling with State concerns, and if they did they would not always escape the suspicion of having done so. Collisions and consequent irritations would spring up; that harmony which should ever exist between the General Government and each member of the Confederacy would be frequently interrupted; a spirit of contention would be engendered and the dangers of disunion greatly multiplied.” –Andrew Jackson available at http://www.presidency.ucsb.edu/ws/index.php?pid=29476

“Such a system is subject, moreover, to be perverted to the accomplishment of the worst of political purposes. During the few years it was in full operation, and which immediately preceded the veto of President Jackson of the Maysville road bill, instances were numerous of public men seeking to gain popular favor by holding out to the people interested in particular localities the promise of large disbursements of public money. Numerous reconnoissances and surveys were made during that period for roads and canals through many parts of the Union, and the people in the vicinity of each were led to believe that their property would be enhanced in value and they themselves be enriched by the large expenditures which they were promised by the advocates of the system should be made from the Federal Treasury in their neighborhood. Whole sections of the country were thus sought to be influenced, and the system was fast becoming one not only of profuse and wasteful expenditure, but a potent political engine.” –President Polk available at http://www.presidency.ucsb.edu/ws/?pid=67965

This interpretation was also supported by the Judiciary in Gibbons v. Ogden, 22 U.S. 1, 199-200 (1824), the Supreme Court held: “In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do.”

Justice Story cited this statement in Gibbons v. Ogden that “Congress is not empowered to tax for those purposes, which are within the exclusive province of the states.” Justice Story then said says “it is not, perhaps, too much to contend, that it is the truest, the safest, and the most authoritative construction of the constitution.” Justice Story, Commentaries on the Constitution § 924 (1833).

It isn’t until United States v. Butler, 297 U.S. 1 (1936) that the Court changes its mind, oddly enough in that case the Court goes on to strike down the Agricultural Adjustment Act as being beyond the power of Congress to spend as it is spending on agriculture (a local issue). Can you imagine if Congress was understood today to be unable to spend on agriculture? Today the Department of Agriculture spends $139.7 Billion in just 2015 alone.

It wasn’t really until Steward Machine Company v. Davis, 301 U.S. 548 (1937), where the Court basically said the issue is of such national importance that we can just ignore the Constitutional limitations and can spend for anything: “Accordingly the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare.”

Are you really sure it’s so “loony-toons” to believe in the limitation of the spending power?

read full comment
Image of Devin Watkins
Devin Watkins
on January 18, 2017 at 10:40:25 am


No - my bad. I misread Rappaport to mean "the Spending power" *itself*. i.e., the power of Congress to spend on PROPERLY delegated powers / areas - not on the overly broad interpretation of those same spending powers.

In short, Congress CAN spend by specific grant; it cannot / ought not stretch that delegated power beyond all recognition; but perhaps, we are really dealing with the expansion / corruption of the Commerce Clause, "general welfare", and the diminution of the 9th and 10th Amendments, etc etc rather than the Spending Clause.

It matters, as you suggest, how and where the "spending" is done rather than on whether the Congress has a delegated power to spend.

That is looney-toons!

read full comment
Image of gabe
on January 18, 2017 at 12:02:37 pm

Technically there is no "spending power" explicitly granted by the Constitution to Congress. Instead, the federal government can spend money, but it only through the necessary and proper clause, which is why money can only be spent on enumerated powers. Its a bit of a technical distinction, but important in understanding the system the Founders setup.

read full comment
Image of Devin Watkins
Devin Watkins
on January 19, 2017 at 19:01:32 pm

The federal government can spend money, but it only through the necessary and proper clause, which is why money can only be spent on enumerated powers. Its a bit of a technical distinction, but important in understanding the system the Founders setup.

read full comment
Image of Miguel P.
Miguel P.
on January 27, 2017 at 11:06:14 am

Hey--thanks, Devin Watkins! I hadn't heard this history before.

read full comment
Image of nobody.really

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.