An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
As originalism has gained prominence, it has become a target for academic historians. They often accuse lawyers of a shallow view of history, pejoratively termed law office history. They complain of lawyers’ overreliance on linguistic crutches like dictionaries, and their ignorance of the social and political context of the constitutional text.
In my view, originalists and historians should not face fundamental conflicts in part because they are largely interested in different questions. Originalists are focused on the legal meaning of texts, and the relevant evidence for that meaning is set by the legal rules of interpretation at the time of enactment. Historians are more interested in much broader questions, like the causes of historical events and the motivations of those who contributed to them. It is not so different from the division of labor if it were applied to contemporary traffic accidents. Lawyers would focus on the narrow question of who is liable for specific accidents. Historians (and other social scientists) would consider the causes of the rise and fall of traffic accidents and their consequences for society.
That is not to say there is no overlap between the concerns of some legal historians and originalist lawyers. Legal historians can identify context which may be relevant to determining meaning under the rules of interpretation at the time or establishing what those rules were. They can also bring to light useful sources through archival research. Unfortunately, such fruitful collaboration is rare. And in my view, the fault is largely with historians because they often write about originalism in a tendentious way that has three principal defects. First, they themselves do not provide the relevant legal context of the evidence they use in making claims about legal meaning. Second, they make a caricature of originalist methodology. Third, they rely on arguments from professional authority.
Sadly, a recent short essay by Mary Sarah Bilder, a distinguished legal historian at Boston College, exemplifies all three faults. The essay meditates on an epigram used in an essay by the late great historian Bernard Bailyn. Surprisingly, Bilder does not directly quote his epigram in so many words, but it appears to have been a comment from James Madison where Madison stated, according to Bilder, that the Constitution was just “a draft of a plan” until “life and vitality were breathed into it.” These snippets might seem at first glance to confirm, as Bilder no doubt means to suggest, that Madison did not believe that the meaning of the Constitution was settled at enactment and that its meaning properly evolves based on the subsequent views and actions of the American people as they breathed life into it.
Indeed Bilder gives a name to the notion that thinking about a text in light of subsequent events changes its meaning. The term is “intellection: “Intellection suggested a creative reasoning process, intriguingly distinguished from imagination. In intellection, the mind may correct the cave. That is, through creative reasoning, the mind could alter the parts of the cave which no longer conformed to present realities”
But it is not correct to argue from Bailyn’s comments that Madison was introducing a method of constitutional interpretation that can be captured by the concept of “intellection.” As a member of Congress and an opponent of the Jay Treaty, Madison argued that the House should have the right to pass on treaties when they considered subjects on which it could legislate, even though the Constitution made only the Senate responsible for giving advice and consent to a treaty. His interpretive move was to reject the claim that what the Framers of the Philadelphia Convention thought the Constitution meant was dispositive. He argued instead that it was the understanding of the enactors that was key, thus permitting him to rely on materials from the state conventions that ratified the Constitution. Here is the full context of the words that Bilder quotes:
As the instrument came from [the Framers], it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions. If we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution. To these also the message had referred, and it would be proper to follow it.
Thus, Madison is arguing that the meaning of the text is settled at the state conventions. It is those conventions that breathed life into it and may have relevance beyond the face of the text. That view provides no support for a living constitutionalism where meaning evolves through the breath of each generation, including our own.
Moreover, Madison’s views here are not at variance with those he expressed much later, when he reflected on the proper method of constitutional interpretation in the tranquility of retirement. In an 1821 letter to Thomas Ritchie he wrote,
The legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned [and] proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it rec[eived] all the authority which it possesses.
Michael Rappaport and I have explained that the weight Madison assigns to the people in the conventions might be justified as the application of a legal rule of contemporary exposition known at the time of the Founding. Official action, like a proposed amendment or the uniform sense of a convention, provides that exposition—or, more poetically, a “breath of life”—to the words on the page. But whatever its source, Madison’s insistence on looking to the state conventions is consistent with the originalist view that the meaning of the Constitution was fixed long ago.
Bilder also cannot resist distorting originalism, saying that “It is no surprise that as the historical record expanded, originalism shifted to a constitutional jurisprudence that sought to cabin the multi-vocal array by fixating on dictionaries and the disaggregating glossing of individual words.” This claim is false, as any glance at originalist scholarship in the last several decades would show. Far from fixating on dictionaries and disaggregating individual words, originalist scholars often do a deep dive into relevant history, including the history of the many legal terms used in the Constitution and the way they were connected to one another. That is the way to understand meaning in its historical legal context.
For examples, I would refer Bilder to Caleb Nelson’s article “Preemption” in which he explicates the meaning of the non obstante phrase (“anything to the contrary notwithstanding”) in the Supremacy Clause by reference to preexisting conventional legal interpretative rules. A more recent example is Michael McConnell’s just published The President Who Would Not be King, where McConnell argues presidential power can be best understood by recognizing that Framers considered the powers of the British monarch and distributed them among the branches. In a recently published essay, Michael Rappaport and I survey other originalist works that pinpoint meaning by reference to a far richer array of evidence than that for which Bilder gives originalists credit. Sadly, her comment betrays an ignorance of contemporary scholarship about the original Constitution—matters in which a legal historian of the early republic might be expected to take an interest.
Bilder is also misleading when she implies that originalism was created by the conservative movement. She states: “[A] mixture of digestible documentary record and Reagan conservatism, bound together for the bicentennial, provided fertile soil for the 1986 speeches by Antonin Scalia and Edwin Meese declaring a constitutional jurisprudence based on an original public meaning.” It is hardly the case that originalism was invented in the Reagan administration. As Howard Gilman—no conservative himself—has shown, for the first hundred years there was a consensus that the Constitution was to be given the meaning it had at enactment. Only in the progressive era did the idea of a living Constitution emerge.
Finally, Bilder relies on arguments from professional authority. The entire essay relies heavily on the fact that Bernard Bailyn disagreed with originalism, and, in particular, believed gun rights were limited to the militia. But as great a historian as Bailyn was, referring to his views is no substitute for addressing the vast literature on the Second Amendment’s meaning. Appeals to contemporary authority cannot displace the responsibility of both historians and originalists to canvas the historical record.