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Toward a More Perfect Originalism: A Reply to Carson Holloway

Brett Kavanaugh’s recent nomination to the Supreme Court has sparked renewed interest in the alternatives of “originalism” and “the living constitution”—what some conservatives are calling “A Battle of Two Constitutions.” Though it was written several months before Kavanaugh’s nomination, Carson Holloway’s eloquent and thought-provoking essay, “In Defense of Originalism” (published in Public Discourse April 3, 2018) constitutes a timely addition to this debate. Holloway’s particular defense of originalism bases that doctrine on the twin notions of “original intent” and “original public meaning.” While sound in many respects, Holloway’s defense contains several historical and theoretical weaknesses which defenders of living constitutionalism are likely to exploit—weaknesses which make an improved version of originalism more necessary than ever.

Holloway questions the cynical maxim that Constitutional interpretation amounts to nothing more than “politics by other means.” “Liberals,” Holloway summarizes, “often suggest that originalism is just an invention of conservative judges who want to justify conservative constitutional outcomes.” By the same token, conservatives frequently charge liberal justices with using the doctrine of the “living constitution” to advance unconstitutional progressive public-policy. While both charges contain a modicum of truth, Holloway concedes, there is no moral equivalence between them: “It is impossible to seriously charge that [conservatives] have invented originalism with a view to achieving any particular political ends,” in the way that liberals have invented the “living constitution.” “Originalism,” holds Holloway, “is the traditional American approach to constitutional interpretation, pre-dating by centuries the present generation of conservative jurists, and largely uncontroversial until recent decades.”

Broadly speaking, Holloway advises conservatives to double down, and turn to the thought of the founders—a sound injunction. In fact, many liberal Constitution scholars would readily agree with Holloway, that the founders’ thought is an indispensable component of Constitutional interpretation. Jack Balkin defends an approach he characterizes as “living originalism,” which retains the framework of the founders’ political design as sound while questioning more peripheral aspects of their structure. Sotirios Barber has long criticized conservative jurisprudence, particularly as it regards federalism, on the basis of nationalist founding arguments. And, most recent, in Legacies of Losing in American Politics, Jeffrey Tulis and Nicole Mellow articulate a broad conception of national Constitutional power using Hamiltonian arguments, defending Reconstruction as well as the New Deal as consistent with the founders’ “projected political architecture.”

Less sound, however, is the particular version of originalism which Holloway seeks to vindicate. According to Holloway, “[o]riginalists hold that the Constitution should have a fixed meaning, that it ought to be interpreted according to the mind of those who wrote and ratified it.” Several paragraphs later, Holloway explains how this interpretive principle cashes out in practice:

if we … ask only what is a sensible approach to understanding a document from the past, we know that we must seek the original public meaning and that we will be led into the most ridiculous blunders if we do not.

Holloway thus prescribes the doctrine of “original public meaning,” which, following a helpful account by Ilan Wurman, he defines as “the ordinary way that we would seek to understand the meaning of any written document—and indeed any communication at all. Communication,” explains Holloway,

is a public act, and language is a public phenomenon, the means of conveying ideas to others in a shared world of discourse. Thus we ordinarily interpret any utterance in light of the public meaning of the words used in it. Accordingly, when we turn to interpreting a communication from the past, we seek the public meaning of the words during that time period, because that is the meaning we have to assume that the writer or speaker intended and that his listeners or readers would have understood.

In addition, Holloway proposes supplementing original public meaning with some considerations of “original intent,” which would allow us better access to what Holloway calls “the mind of those who wrote and ratified” the Constitution.

To help illustrate his point, Holloway turns to McCulloch v. Maryland (1819), and proceeds to comment on “Marshall’s famous remark that the Constitution is ‘intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.’” Preempting those who would cite this as evidence that the founders themselves did not ubiquitously support “originalism” understood as “original public meaning,” Holloway asserts:

Marshall was clearly not calling for later generations of judges to read new meanings into the Constitution. He was instead defending a fixed interpretation of the federal power capacious enough to let future Congresses address the nation’s changing problems through the exercise of the legislative power.

Holloway’s decision to turn to McCulloch is highly appropriate—though, as I will attempt to show, his summary of its meaning is deeply misleading.

Let me begin with Holloway’s approval of John Marshall’s reasoning. According to Marshall, the necessary and proper clause rendered the National Bank constitutional, as Congress was constitutionally empowered to legislate the means or powers which it deemed “necessary and proper” to the realization of the Constitutional goals—some concrete, like taxing; others abstract, like the “general welfare”—which are listed in Article 1, Section 8. Significantly, Marshall notes that the necessary and proper clause liberated Congress from the constraints that had previously been imposed upon it by the Articles of Confederation, which had forbidden Congress from using powers not “expressly” enumerated in the Constitution itself. If Congress should judge incorporating a national bank to be a “necessary and proper” means “on which the welfare of [the] Nation essentially depends”—reasoned Marshall in McCulloch—Congress is constitutionally empowered to turn that judgment into law.

Now as it turns out, the particular meaning of “necessary and proper” which Marshall here attributes to the Constitution had long been contested by more conservative founders, opposed to Marshall’s Hamiltonian vision of the national government. For such conservatives, “necessary and proper” still implied that Congress was constrained to legislating only those powers “expressly” delegated; it retained, in other words, the meaning of the Articles of Confederation. Accordingly, the justification Holloway gives for Marshall’s defense of national power in McCulloch is the very argument that contemporaneous opponents of the Bank and defenders of originalism—founders such as James Madison and Thomas Jefferson, among others—had been fervently rejecting ever since the idea of a National Bank had been placed on the legislative table in the 1780’s.

In his “Opinion on the Constitutionality of a National Bank,” written to George Washington on February 15, 1791, Jefferson had marshaled just the sort of originalist argument favored by Holloway in opposing what would later be John Marshall’s ruling in McCulloch. As Jefferson points out, the Federal Convention of 1787 had voted down a proposal to empower Congress to open canals; and this vote had signified—alleged Jefferson—that “according to the mind of those who wrote and ratified” the 1787 Constitution, such ventures as canal-building and national bank-chartering were well beyond the powers that had originally been delegated to the national government.

Now, had there been a consensus among the founders that Jefferson’s argument here should be the authoritative one, Holloway’s point might be more tenable. However, eight days after Jefferson’s opinion, on February 23, 1791, Secretary of Treasury Alexander Hamilton—the Bank’s primary advocate—issued a rejoinder that rejected Jefferson’s view of the constitutionality of the National Bank. What is more, Hamilton’s rejoinder also rejected the very mode of originalist interpretation which Jefferson sought to advance—and which Holloway asserts was “largely uncontroversial” among the founders. It is worth quoting Hamilton in full:

[W]hatever may have been the intentions of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction. Nothing is more common for laws to express and effect, more or less than was intended. If then a power to erect a corporation [such as the National Bank], in any case, be deducible by fair inference from the whole or any part of the numerous provisions of the constitution of the United States, arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected.

Why such arguments “must be rejected” should be obvious enough. When it came to the National Bank question, Hamilton, Jefferson, and Madison—three of the greatest minds to have informed the United States Constitution—disagreed over the meaning of that very Constitution. It does no good therefore to invoke, as Holloway proposes, the authority of “the mind of those” who ratified it. There was no single “mind,” as the debate between Hamilton and Jefferson reveals, but rather many and differing minds. More important for Holloway’s thesis, the debate over the National Bank suggests there was no single public meaning of “necessary and proper,” either. Instead, there were competing legitimate understandings of what “necessary and proper”—and the whole Constitution, for that matter—truly demanded of their interpreters, present and future.

Accordingly, these early debates over the National Bank help uncover the twofold weakness of the “original public meaning” and “original intent” approaches.

First, regarding the most important Constitutional questions—such as the meaning of the “necessary and proper” clause, which McCulloch concerned—there never existed a consensus, a monolithic “original public meaning,” in the first place. As the Federalist versus Democratic-Republican debates (and the Federalist versus Anti-Federalist debates before them) confirm, such questions were essentially disputed before, during, and after ratification. Invoking “original public meaning” today would therefore mean to invoke, at best, only one side of a complex and historically-protracted debate.

Second, and more damning still, is the fact that the founders themselves did not share a consensus or “intent” about how best to interpret the Constitution. As Hamilton’s words make clear, the meaning of the document “is to be sought for in the instrument itself.” This is to say, Constitutional meaning is not to be attributed to the “instrument” on the basis of “extrinsic circumstances,” such as the intentions of authors who (like Hamilton and Madison) frequently disagreed with one another, or “original public meanings” which never really existed. Rather, the Constitution must be given the most intelligent possible construction, according to the cognitive faculties of the interpreters and the political exigencies of the present moment. To be sure, studying the founders is an invaluable resource in this regard. Yet such study requires the intellectual heavy-lifting of weighing competing arguments, not just counting up shared viewpoints. As Herbert Storing once stated in explaining the best version of Constitutional originalism, “we are not tabulating the frequency of differing arguments. We are looking not for what is common so much as for what is fundamental.”

Holloway has done constitutional theory and American political thought a real service in further exploring the nuances of Constitutional originalism. Nevertheless, his particular defense of originalism—which relies on argumentative consensus rather than argumentative merit, and privileges founding intentions over founding arguments—leaves room for further improvement.

Reader Discussion

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on August 30, 2018 at 09:21:12 am

To be fair, the intent of a phrase or passage in the Constitution IS important. And intended purpose of the Necessary and Proper Clause was to prevent pedantry over how the Congress dealt with its given powers. So intent IS important, but not the personal intent of any particular person, but the intent of the law, based on the problem it was intended to solve. The Founders used "meaning" and "intent" as synonyms. Ideally, these should line up. And when they don't, the meaning which gives rise to more freedom and local sovereignty should be preferred over that which enlarges the power of the Federal government.

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John Ashman
on August 30, 2018 at 10:21:44 am

The problem here is that you're relying too much on Hamilton to express the fact that the Founders were of different minds. Hamilton was intending to enlarge the power of the Federal government beyond its delegated authority in order to enact a federal bank. His judgment was biased and impaired at the time. Jefferson, OTOH, made a principled stand against the bank because the power simply didn't exist. And yet, ironically, it seemed that the bank was such a popular idea that an amendment would have passed rather easily, though I suspect they expected stiff resistance by the States such as Maryland.

So, Hamilton tries to deny the intended purpose and meaning of the Necessary and Proper Clause because it worked against him, which was to fix a defect in the AoC that caused perpetual conflict when the government tried to execute its delegated powers, because people would contest it. So the intended purpose, the fix that it makes, was to ensure that the Congress could fully act on its delegated powers, without legal pedantry, NOT to create a mechanism by which Congress could call an undelegated matter "necessary" and then simply wish this power into existence. In no way does N&P function like the 9th Amendment which is almost never used, ironically.

So, you see, intention was never in the minds of the writers, but in the PURPOSE of the law, that which it was crafted to do. Easily distilled from the problem being described and the fix that was made to handle it. Intention doesn't override the text, it works hand in hand to create a single meaning. Both should align. The scope need not, as this was left to future generations and future circumstance. Gay marriage falls under equal protection, a result they may not have imagined, but a result that the 14th Amendment intended, even if the individuals did not. Because the 14th intended to have equal protection under the law.

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John Ashman
on August 30, 2018 at 10:26:40 am

Agreed that the search for "intent" and "public meaning" may lead us into a constitutional rabbit hole.
Mr Ashman has an interesting observation and one that, if correct, i'e', that "meaning and intent" are synonymous may further reinforce the arguments of McGinnis and Rappaport, as well as Hamilton's assertion that "the meaning of the document “is to be sought for in the instrument itself", that COTUS is to be read as a *legal text / document* and that meaning must be construed employing the standard legal meanings of the time as well as the standard legal methods of construction / interpretation. From that, one MAY divine intent and NOT from the changing rhetoric of the authors.

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gabe
on August 30, 2018 at 10:47:50 am

Oops, forgot this (I notice Mr Ashman also makes reference to it:

We should always remember that COTUS text / clauses and amendments were *crafted8 to fix a certain perceived constitutional defect or problem. What was the problem? What were the previous efforts, if any, to resolve the problem? How was the text crafted to resolve that specific problem.

I am not, however, prepared to go so far as does Mr Ashman re: "gay marriage" and EPC. Yes, there may be some validity to the "unanticipated" *constitutional* outcomes of the text and it may very well be that certain of the crafters of the 14th believed that it could be expanded to cover groups / populations other than the Freedmen BUT a) doesn't that get us right back to intent, which we have previously dismissed as unknowable and b) were it intended to be so broad as is currently asserted, how then did it not provide for immediate suffrage for women.

The problem to be *fixed* by the 14th was the problem of post-bellum civil incapacitation of the Freedmen. That is abundantly clear.
All else derivative of that amendment may also be derivative of those who unknowingly are still attempting to divine *intent*.

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gabe
on August 30, 2018 at 11:26:31 am

I think Ashman is simply and correctly stating that ambiguous language in a contract should be construed against the party that drafted the document.

The fly in the ointment is stare decisis. Stare decisis is an English common law rule that has no place in a political system based upon a written constitution and where Congress and the Executive cannot simply pass legislation vacating judicial decision they find to be wrong. There are no external checks and balances on Supreme Court decisions and the task at hand is to limit the unavoidable damage the courts have proven themselves capable of.

The way to avoid the rabbit hole is to amend the Judiciary Act and forbid all federal courts from relying on stare decisis when deciding individual constitutional claims. If Congress should find that a ruling on an individual case should be applied nationally it can pass an act making it so. If it later turns out that applying a given decision nationally is no longer warranted it can be repealed. In all cases originalism wins because the only text the courts and Congress can use is the language of the Constitution itself; not prior judicial flights of fancy on original intent, penumbras, the sweet mystery of life and appeals to idiosyncratic understandings of natural law.

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EK
on August 30, 2018 at 11:42:38 am

EK:

Agreed on stare decisis and also on this notion of "liquidation" wherein erroneous practice / judicial decisions are treated as the equivalent of an Article V amendment. As Prof Paulsen argues in his latest impeachment essay, repeated error does not constitute proper meaning.

And absotively YES on national injunctions. Decide the case BEFORE you and DO NOT arrogate to your Black Robed selves the Legislative power.

And also Yes, I understand the "construed against" argument - Yet, when contemporaneous *practice* indicates something other then the contemporary view, how is it to be deemed ambiguous (rhetorical, of course, here) and does not the contemporaneous view and practice determine the limits of the legal phrase not our current understanding of the phrase.

Heck, as to SSM let the State Legislatures a) pass laws permitting it or b) alternatively, remove the State from the marriage business.

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gabe
on August 30, 2018 at 12:11:42 pm

My old dog just now is lying on my front porch watching squirrels, so I do not have a dog in this fight.

But, just to speak to some of the matters of logic and consistency in what Mr, Zug has said in his commentary, I will quote first what Zug says Hamilton actually said literally:
Hamilton said, "[W]hatever may have been the intentions of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction. Nothing is more common for laws to express and effect, more or less than was intended. If then a power to erect a corporation [such as the National Bank], in any case, be deducible by fair inference from the whole or any part of the numerous provisions of the constitution of the United States, arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected."

And now, quoting what Zug alleges Hamilton said or meant by what he said, I assert that what Zug says is neither what Hamilton said and nor what Hamilton meant:

Mr, Zug says, " As Hamilton’s words make clear, the meaning of the document “is to be sought for in the instrument itself.” This is to say, Constitutional meaning is not to be attributed to the “instrument” on the basis of “extrinsic circumstances,” such as the intentions of authors who (like Hamilton and Madison) frequently disagreed with one another, or “original public meanings” which never really existed. Rather, the Constitution must be given the most intelligent possible construction, according to the cognitive faculties of the interpreters and the political exigencies of the present moment."

Two points: 1) Hamilton says that arguments from EXTRINSIC evidence about the intentions of the Convention are not to be considered as evidence of intention when the power at issue is deducible by fair inference from the constitution's written provisions and 2) Hamilton expressly affirms the centrality of the interpretive task of deducing the intentions of the Framers.

Neither Hamiltonian point coincides with or even partially corroborates Mr. Zug's assertions 1) that Hamilton decried an effort to ascertain Founders' intentions from the text itself or from evidence that is not extrinsic to the drafting or adoption of the constitution, 2) that "original public meanings" "never really existed" and 3) that "the Constitution must be given the most intelligent possible construction, according to the cognitive faculties of the interpreters and the political exigencies of the present moment."

Mr. Zug offers the Hamilton quotation that, in itself, rejects Zug's point # 1. To accept Mr. Zug's other two points would require much more than his mere self-serving, conclusory assertions.

Finally, I would agree with Mr. Zug that Hamilton and Madison frequently disagreed with one another, but I would argue that the disagreements were AFTER adoption, when Madison incrementally became the anti-Federalist legislative messenger for the Hamilton-hating, manipulative Jefferson, not DURING adoption when Madison was a Federalist in spirit and Hamilton's founding ally on matters constitutional, during which time there was much harmony of purpose and agreemnt on means between the two Founders. As for Jefferson's disagreements with Hamilton, Jefferson was not a Founder and those disagreements have little if anything to do with the original meaning of the constitution or the intentions of its Founders.

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Pukka Luftmensch
on August 30, 2018 at 12:29:43 pm

I would just point out that Jefferson, Hamilton and Madison were all pretty much on the exact same page when it came to the meaning of the Constitution. The problem being that Hamilton wanted a FAR more powerful federal government, and while the Constitution allowed a slightly more powerful government, it was far less than Hamilton craved. So when the Constitution got in his way, he simply decided that he should go around it. Jefferson was an absolutist. He was also the eldest of the three. Jefferson's points about Necessary and Proper are absolutely dead on. Hamilton wanted a bank, he knew the only way to get it was to push the limits. Madison sided more with Jefferson een though he was more flexible in general.

I think it's ironic to call Jefferson "manipulative" when that is a famed quality of Hamilton. "Sneaky" might be more appropriate. He was despised by nearly everyone, even Washington disliked him, he just required his shrewdness in battle. The only Founder to be killed by another Founder. He wanted to be viewed as royalty, with a title and lifetime appointment. Of all the Founders, he was one of the only ones who felt it was too restrictive, while a large number felt it wasn't nearly restrictive enough. So we know what side of the "protect or break" division he was in.

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John Ashman
on August 30, 2018 at 12:33:42 pm

Stare Decisis is Latin for "let the shit lay where it was shat"

There is an argument for precedent applying to constructions and applications of meaning (Miranda rights, exclusionary rules), etc), but not at all for changes in meaning or expansions of power. Everyone rallies behind Stare Decisis only when the decision is bad, never when it is good. No one seems to worry about a good decision being reverse.d.

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John Ashman
on August 30, 2018 at 15:27:10 pm

To all:

It strikes me that, try as we may, we are constitutionally (pun intended) incapable of avoiding recourse to intent. Yep, Hamilton was for greater degree of centralized power, Madison more so than the anti-Federalists and even Jefferson supported greater central power and prerogative than afforded under the Articles.

What are we to make of this? or to make of Hamilton's later "doubling down" on Federal Power and Jefferson's eventual acceptance of the "greater" power implied in a National Bank?

Does any of this change, or more aptly put, *amend* the constitution? Behavior and opinion POST ratification, whether in the form of prudential behavior (the Bank) or wise / unwise opinion and / or judicial determinations evidences nothing more than the fallibility of human actors and their tendency to respond to circumstances and ideological inputs EVEN when those urges / actions may be, or previously have been considered beyond the scope of the original governing charter. The TEXT remains as does it's original "legal" meaning at the time of adoption as do the widely accepted / used rules of construction.

Does vagueness exist? Surely, some does and always will; but probably not so much as our Living COTUS friends would prefer and probably more than those who would have us accept COTUS with all the worship usually reserved for some religious dogma. It is neither. That being said, how is one to resolve such critical questions.

McGinnis and Rappaport advance the notion of "legal terms of art" as the best method of construing the document. Agreed. Other look for intent / meaning. We have seen how meaning may be inscrutable / lost to the mists of time AND political / ideological pedagogy. At first glance "meaning" also may not be discoverable if one understands meaning to be the public perception of the document. Yet, as we observe with "legal terms of art", where our search parameters are much more limited (refined) by virtue of their exclusive use in the legal arts, we may also find meaning in such text as Necessary and Proper by recourse to contemporaneous dictionaries.
Here is Webster, circa 1818:

NECESSARY: That must be; that cannot be otherwise; indispensably requisite. It is necessary that every effect should have a cause.

2. Indispensable; requisite; essential; that cannot be otherwise without preventing the purpose intended. Air is necessary to support animal life; food is necessary to nourish the body; holiness is a necessary qualification for happiness; health is necessary to the enjoyment of pleasure; subjection to law is necessary to the safety of persons and property.

3. Unavoidable; as a necessary inference or consequence from facts or arguments.

PROPER:

Peculiar; naturally or essentially belonging to a person or thing; not common. That is not proper which is common to many. Every animal has his proper instincts and inclinations, appetites and habits. Every muscle and vessel of the body has its proper office. Every art [constitution] has it proper rules. (brackets mine)
2. Particularly suited to.
5. Fit; suitable; adapted; accommodated

(Ok, so I was a bit selective but not much).

Perhaps, rather than Chief Marshall allowing his own fine-tuned sense of what was permissible under COTUS, a quick review of the generally accepted public, and I would argue, legal, meaning of Necessary and Proper would have yielded a different result.

I believe that it could have done just that.
Whether one does or not agree with the accepted and codified meaning of N&P, it strikes me that it is at least less open to Judicial flights of fancy than either version of intent theory or living constitutionalism. coupled with "legal term of art" the possibility of Judicial mischief would seem to be severely curtailed.

And that is all I want!!!

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gabe
on August 30, 2018 at 17:45:43 pm

Original intent is not a rabbit hole. Originalism, itself, has become the real rabbit hole and law school academicians are too blame for originalism, once so simple as to be almost self-evident to any trial and appellate lawyer and federal judge, morphing into it's own specialized, vast, byzantine rabbit hole with more academic factions and maze-like interpretive theories than a) myriad Marxists-Leninists arguing over the historical causes and social consequences of dialectical materialism and b) a papal college of medieval Scholastics arguing over Aristotle and Neoplatonism.

Where there is no judicial agreement there is little constitutional impact, and I suggest that, while the interminable, increasingly specialized spats of law school scholars should be tolerated, they're essentially irrelevant. Judges are the wielders of power, and they need agree on only one judicial method: to interpret and apply the constitution as it was meant (intended) to be understood when (at the time) those who wrote and approved it (the Founders) did so employing the words, phrases and structure which they employed. How its words (legal, political and commonly-used words) were used and understood at the time by the Founders is key to federal judges arriving at that understanding. Constitutional lawyers and scholars, historians of the British Crown, Parliament and religious wars, and historians of American legal and political colonial history expert in the law, language and politics of the era and in the language and practice of English and colonial common law of the era, and linguists expert in colonial language and customary usage (legal, political and common) constitute the body of ''originalism" experts whose advice judges may solicit at times. The small lexicon of relevant or dispositive words and the library in which these relevant, dispositive words are to be contained consist only of the constitution's text, the records of debates and votes on the convention and the ratification, and the relevant contemporaneous publications (e.g, the Federalist Papers, relevant speeches and writings by Founders outside Convention Hall but during the Convention and Ratification process and other relevant verbal areas including contemporaneous correspondence, pamphlets and news articles of or about the Founders debating constitutional matters that were under review and up for final public decision.

The constitution is not a work of bricolage; it's text is limited; it's intellectual sources are finite, known and intellectually understandable. It's language is not hieratic, not the work of an intellectual elite, but is descriptive of the objective natural order of the era and as such approximates what was publically accessible, extensively used and reflective of the real structure of society at the time of the Founding.

My two cents worth is that historians have the most to offer, law school profs the least, linguists should not be ignored and that Raoul Berger, Robert Bork and Antonin Scalia, while not in full accord, should serve as guideposts for the judges who will enforce original meaning as intended and written by those who wrote and ratified the constitution.

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Pukka Luftmensch
on August 30, 2018 at 18:25:57 pm

Every discussion I've had with a "historian" or "linguist" over original meaning has made me laugh about how completely clueless both are when it comes to the Constitution. They love to bloviate about how valuable and knowledgeable they are, but when you ask them basic questions, either they get it wrong, but far more often, they immediately start ducking the subject or getting into personal attacks. But I've never known either to provide any insight whatsoever. And yet that never humbles them. They are convinced they simply know more, without ever having to demonstrate it or add to the discussion. Probably the linguists and historians with something to offer don't get involved in trying to prove their awesomeness though.

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John Ashman
on August 30, 2018 at 18:27:26 pm

I suppose it shouldn't be a surprise that virtually every historian and linguist I've ever seen interject on the issue are also hard leftists, just by some weird coincidence.

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John Ashman
on August 30, 2018 at 18:32:32 pm

"I would just point out that Jefferson, Hamilton and Madison were all pretty much on the exact same page when it came to the meaning of the Constitution."

That is false ab initio as to Jefferson and the period of the Founding and again from 1790-1804 when Hamilton was killed. It is true of Madison and Hamilton from 1787 until circa 1790.

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Pukka Luftmensch
on August 30, 2018 at 18:41:24 pm

Then certainly, by all means, no judge should rely on such linguists; they're not qualified any more than a military or Reconstruction historian would qualify for the purpose I've described. I mean that judges should seek the guidance, if helpful, of linguists who have studied the era and would qualify in court as expert in its language and its customary verbal usage.

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Pukka Luftmensch
on August 30, 2018 at 18:49:12 pm

By this, I mean that all of them had a strong understanding of the Constitution and had little if any public differences on the meaning until after it was ratified and Hamilton sought to empower the government with a bank. Jefferson thought that the Constitution was a bit bigger than he'd like, but he understood it and was willing to abide by it. Hamilton thought the Constitution was much smaller than he'd like, but he understood it an was willing to abide by it *until it got in his way*. They clearly disagreed on what they wanted in it beforehand but for the period after it was written and until it was ratified, they were singing in unison, at least in public.

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John Ashman
on August 30, 2018 at 18:58:04 pm

That's a risk.
Good point.
And also a good reason to avoid the law prof's and historians unless they are credentialed scholars and not ideologues, a rare combination

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Pukka Luftmensch
on August 30, 2018 at 19:21:29 pm

Gabe, I share your view overall
And lest I be accused in my separately stated approach of advocating that we simply turn the matter over to academicians, let me add from my personal experience that the best source of originalism input to the federal courts should be the resourceful research, writing and advocacy of resourceful, skilled trial and appellate lawyers drawing upon, citing and arguing from fact, principle and logic derived from the best written and testimonial sources of original constitutional meaning they can find. Wigmore said, and I still believe, that cross-examination is the best engine devised for the test of truth ever devised.

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Pukka Luftmensch
on August 30, 2018 at 19:26:58 pm

OK, so here is a question:

So why not seek the advice of legal historians familiar with the "legal" meaning of terms of art. surely, their understanding would be on par, if not superior to a historian?

Heck, after all, we are not seeking (at least I am not) surety but only some means of restricting the 'free flow" of judicial ideas, musings and fantasies which was the point of my diversion to Websters. Information is available that may illuminate the meaning (and, yes, by implication, the intent) of a clause / text. will there still be disagreement, Yes; but is may be limited by the very nature of the tools and information on offer for review and is certainly preferable to navel gazing upon the bloody mysteries of life.

Surely, there must be more than one Phillip Hamburger out there!

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gabe
on August 30, 2018 at 19:32:09 pm

"...that cross-examination is the best engine devised for the test of truth ever devised."

Absotively luvv'd it!

i wonder, could the Legislative under its powers over the Judicial demand that theSupreme Black Robes be subject to cross examination after they have rendered their decision? In theory, this is what the other *co-equal* (ha ha) branches of government are empowered to do YET they don't. so since the Legislative is wont to surrender its institutional prerogatives, let them surrender it to other members of the bar (and I don;t mean the various Blarney Stone dives that line NYC streets).

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gabe
on August 30, 2018 at 19:40:55 pm

To borrow your creative neologism, "absotively" I agree with you that judges must call upon (constitutional advocates must employ) the reliable expertise of constitutional lawyers who are true legal/constitutional historians. Hamburger along with the deceased David P. Currie ( with whom I worked) and Raoul Berger (whose works I read when they were first written) and Robert Bork fit the bill. The run-of-the- mill Con Law prof does not, at least one of whom comes to mind.

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Pukka Luftmensch
on August 30, 2018 at 20:09:26 pm

That's two ''absotively's'' from me for you in one string, more than nobody would give in a lifetime (did he die or is he in mourning for McCain?)

And speaking of the judicial and congressional importance of fine oral advocates who know how to cross-examine, I recall that the Watergate Dem's used as chief counsel law prof, former prosecutor and private practitioner Sam Dash (who was really effective) and the Republicans used former prosecutor Fred Thompson (less effective but good) and the Senate Judiciary Committee was chaired by Sam Ervin (a former practicing lawyer and judge) and had as ranking Republican Howard Baker (who practiced law for 15 years) ALL of whom knew how to ask and follow-up hard questions, cut-short evasive answers and force truthful answers. We see no Chief Counsel asking questions and no Committee member up to the task in any of the Collusion Congressional hearings, and because of that these hearings have been far more protracted and far less productive than they should have been by now.

Trey Gowdy is as close as the House gets to a real litigation lawyer, and he does not impress me; more showboat rhetoric than forceful prosecutor; he seldom follows up, and he contradicts himself so often it's hard to know whether he represents the good guys or the bad guys or just the artful dodgers of responsibility. The Senate is even worse, with no Chief Counsel asking questions and Chairman Chuck Grassley nearly senile and so slow as to take forever to get to a point.

Real prosecutors given real latitude as in the Watergate Heraings would make real progress real fast.

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Pukka Luftmensch
on August 30, 2018 at 20:25:38 pm

2d reply: Lynn Uzzell and Kevin Walsh, profs and legal historians who have written for L&L know their originalist stuff, both theory and history, and would definitely qualify as originalism "experts" whose testimony and writing I would rely on. Walsh clerked for Scalia, too, so he learned from the master. (And he taught my brilliant daughter.)

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Pukka Luftmensch
on September 01, 2018 at 09:52:40 am

EK:

Sub rosa constitutional amendments by RW judges are at least as pernicious as the worst excesses of the Warren Court (e.g., expansion of governmental immunity, which Judge Don Willett recently took a shot at). But l don't know how you weaken stare decisis without our losing the ability to know what the law is, to rely on it, and to plan our affairs accordingly.

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King Kong
on September 02, 2018 at 14:53:06 pm

FWIW, I think that we should insist that the judiciary, from top to bottom, be constitutional literalists and nothing more. That is to say their decisions should confine themselves only a discussion of the actual text of the Constitution and the facts of the case before the bar.

As you know, I also think that the Federalist Papers are nothing more than propaganda and therefore should not be cited at all and that constitutional interpretation should be without reference to any prior judicial musings on the same or on similar points and that any decision issued should bind only the specific parties to the litigation and be applied only to the facts of the individual case being considered.

Any wider application of any given decision should be a matter for Congress and the Executive to decide.

Under this model there will be errors but as long as the literal text of the Constitution is the only reference point the errors will be tethered to the actual text Constitution and not to the vast cannon of dicta enshrined in the many volumes of the Supreme Court Reports.

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EK
on September 02, 2018 at 15:47:04 pm

By way of example:

Suppose the worse district court judge imaginable reads the text of the Constitution in the worse way imaginable; then there are two levels of review available but the appellate courts are also limited to their reading of the text to correct the decision. In the worse case scenario, if they all do their worst, there is only one victim. But in most cases, the ultimate decision will cleve closely to the text of the Constitution.

Isn't that what we all want?

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EK
on November 21, 2019 at 08:06:42 am

That approach may require the integration of facts about the law that no one at the time had brought together. While the association of suspension with executive discretion was well known when the Constitution was adopted, it may be that no individual had come to the conclusion that discretion is the feature that unites British and American suspensions. In order to understand the Suspension Clause, which refers to the legal practices that were called suspension of habeas corpus and similar names, that integration must be performed. The reading presented here, which relies only on legal facts and concepts available at the time of the framing, may thus be both novel and true to the original meaning.

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spankwire

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