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.