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February 25, 2005

originalism in constitutional law: one

Don Herzog: February 25, 2005

A while ago, I explained why strict constructionism in constitutional law is hopeless.  I took strict construction as the view that we should just apply the words in the text and not "make things up" that aren't "there."  And — no point fussing over labels — I acknowledged that "strict construction" could mean appealing to the intentions or understandings of the framers or ratifiers, and promised that I'd turn to explaining what's wrong with that view, too.  So here goes.  In this preliminary post, I'll sort out a series of different views and make some general objections to them.  In my next two on this matter, I'll waive those objections and show that originalism doesn't get its champions what they're after.

Oh, if you're reading posts on this blog trying to expose our covert but shrill and unceasing support-the-Democrats agenda, you've been confused about what happens when you ask academics to think aloud about politics — and you will find my posts on this topic extraordinarily sly in concealing, well, in concealing what isn't there.  That the legal theory of originalism tends to be associated with conservatives is of zero interest, and at no point will I suggest that it is a bad theory because it generates right-wing outcomes.

One:  whose original understanding are we interested in?  That of the framers of the language?  Or that of the ratifiers?  Each of those alternatives can be splintered further.  Consider the fourteenth amendment.  If you think the framers' understanding is key, should we be especially interested in the views of draftsman and champion Representative John Bingham, or the committee members who kept redrafting the language, or the members of both houses of Congress who voted for the amendment, or all the members of Congress?  If you think the ratifiers' understanding is key, should we be especially interested in the views of members of the state legislatures who voted yes, or all members of the state legislatures, or the citizens who supported the measure, or all citizens?

The question suggests a pincer attack:  competing demands pull in opposite directions.  The narrower the group you choose, the more likely it is that you will be able to identify an original understanding in the first place.  I can imagine some historical information about what John Bingham thought, but I doubt that Americans at large shared any understanding of the amendment. (In The Fourteenth Amendment, William E. Nelson documents one crucial ambiguity and disagreement after another.  For instance, "Congress and the state legislatures never specified whether section one was intended to be simply an equality provision or a provision protecting absolute rights as well."  He shows that even Bingham was of two or three minds.)  So go narrow, you might think, lest the originalist project not get off the ground.

But any attention to democratic legitimacy pulls the other way.  I can see why we might respect an understanding installed in the constitution by the people — not for nothing does the original text start, We the People.  But why in the world should we be governed by the views of a relatively narrow group of people?  You might imagine there is some perfect Goldilocks fit, narrow enough that we can surface an original understanding, broad enough to look democratically legitimate.  I can think of no interesting clause for which there is a Goldilocks fit.  And originalism will break down or need some nonoriginalist supplement for any clause for which there's no Goldilocks fit.

Two:  just what does "original understanding" refer to?  This question is wholly independent of my first question:  for whatever preferred actor(s) you identify to answer question one, you can still choose any option for question two and you still have to choose one.  Maybe original understanding is a reminder that English words can change their meaning over time, so we should be historically disciplined by facts about contemporary linguistic usage.  (An old chestnut:  if a constitutional provision stipulated that something must occur "biweekly," you'd want to know whether contemporaries meant "twice a week" or "once every two weeks.")  I'm completely on board with that version of originalism.  But if that's all there is, originalism is only a wrinkle on the hopeless strict constructionist view:  after figuring out what ciontemporary usage was, we'll still be staring intently at the abstract words of constitutional provisions as if they dictated outcomes.  But "equal protection" won't tell you what to do about affirmative action even after you find out what mid-19th-century Americans meant by "equal" and "protection."

For original understanding to depart interestingly from strict construction, then, it's got to be more than the injunction to use a historically sensitive dictionary.  So consider the surprisingly varied candidates originalists have referred to.

Some opt for your preferred actor's intentions.  If that means anything like private mental states, leading originalists (Justice Scalia, former Solicitor General Charles Fried, Prof. Randy Barnett) roundly reject the view for good reason.  Law has to be public; it's tyrannical to be told that the law consists not in the actual words made law, but in what some people thought about it.  I complained a while ago about the bait-and-switch tactics of those who championed a state constitutional amendment banning same-sex marriage here in Michigan, assured voters that it had nothing to do with domestic partnership benefits — and then promptly suggested the amendment does ban those benefits.  Their move was contemptibly shoddy dealing in a democracy, but the legal force of the language on the books isn't what people intended to accomplish in voting for it.  Still I leave "intentions" on the list because self-styled originalists do invoke it and they probably mean what they say.  Attorney General Edwin Meese III famously called for "a Jurisprudence of Original Intention," though he provided different glosses on what that might mean.

Some originalists turn to contemporary understandings of the language, but move past the dictionary view and ask:  what would their preferred actor(s) have taken the legal force of the constitutional language to be?  To see the difference between intentions and that question, return to the Michigan constitutional language.  A voter could correctly say, "Whoops, I meant only to stop gay marriage, but now I see the language actually might preclude partnership benefits."

To answer that question, originalists again invoke surprisingly varied kinds of sources.  There's documentary evidence making claims about the meaning of the passage in question.  There's documentary evidence on similar passages, or why competing passages were rejected.  There are political campaigns and lawsuits brought in the name of the passage, early judicial decisions invoking it too.  There are contemporary practices, which get used in two ways.  Some want to show what enemy was being rejected:  chattel slavery plays that role in construing the fourteenth amendment.  Others want to show what the passage couldn't sensibly be enlisted to oppose.  They argue, for instance, that if the Congress that passed the fourteenth amendment ran racially segregated public schools in Washington, DC (it did), it was loopy for the Supreme Court to decide that the amendment prohibits racially segregated public schools.  Not only are there varied kinds of sources, but frequently within any one kind we can discover competing and contradictory evidence.

So the grammatically incorrect but conceptually helpful question is, what are originalism?  There are plenty of possible views on offer, a genuinely embarrassing embarrassment of riches.  That very plenty suggests another pincer attack in response to the worry that judges will have discretion, especially in constitutional law.  Don't give judges enough resources to use in interpretation, and they'll have discretion:  that's how strict constructionism founders so spectacularly.  But give the judges too many resources to use, and again they'll have discretion:  they can pick and choose as they see fit from the list of approved sources.  Is there a Goldilocks fit that will give the originalist the right actor(s) to appeal to, the right sources to assemble an original understanding, and a reasonably univocal result on the original understanding that will yield clear judicial mandates?  I doubt it.

More to follow on just why I doubt it.


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Posted by: oliver

There must be a scholar somewhere in this country that knows the constitution by heart. Let's just give this person ink, quill and parchment, lock them in a room for some hours to rewrite the thing from scratch and then we'll all work afresh from that new document. Then whatever the scribe says goes, and no more consititutional ambiguity. I don't know if I can take any more ambiguity.

Posted by: oliver | Feb 25, 2005 8:20:27 AM

Posted by: john t

" but why in the world should we be governed by the views of a reatively narrow goup of people". Why not? I guess it depends on who or what those people are. As it is you might say we are governed by only nine people,or more than likely,five.

Posted by: john t | Feb 25, 2005 8:38:15 AM

Posted by: bakho

Isn't "strict constructionist" just the right wing polite public code for anti-affirmative action, anti-abortion agenda? I didn't know it had any other meaning.

Posted by: bakho | Feb 25, 2005 9:14:43 AM

Posted by: Don Herzog

Thanks, Will. I was trying to sidestep Bolling v. Sharpe and the intricacies of reverse incorporation. But the argument I have in mind pictures Congress affirming a political ideal, and not being sneaky about whether they should be bound by the same rules just because of the different wording of the fifth amendment.

This is just one place where straight-on textualism diverges from originalism, even though sometimes people talk as if they're the same thing.

Posted by: Don Herzog | Feb 25, 2005 10:19:50 AM

Posted by: Daniel

Don: How would your first issue apply to the issue of "legislative intent" in interpreting recent legislation? Few of those questions about whose intent should be looked to come up in that context because it seems settled that the conference report or floor discussions or whatever are weighed and used accordingly. A major difference is state ratification. But if we could find a written account of each ratification of, say, the 14th amendment, and each clearly expressed that the will of that particular legislature was that, say, education was NOT covered by the amendment, then what?

As to your argument that the sources are many and contradictory -- well, gee, let's just give up because its too complex! What do you do when confronted with an issue on which there are multiple, contradictory precedents?

Consider the judge who rejects 'originalism' and 'strict construction' or includes them only as one of many factors. Would it not seem that ALL information, of whatever sort and source, is 'relevant' to interpreting the Constitution? In which case you've increased the confusion, not lessened it.

Posted by: Daniel | Feb 25, 2005 10:30:20 AM

Posted by: Don Herzog

Daniel, actually the use of legislative intent is hotly contested. Justice Scalia, for instance, is flatly opposed on principle.

I have two different sorts of objections in play, and I'm not sure which one you're after. One: if you construe intentions as something apart from the written words, it violates the basic rule-of-law commitment to publicity to make the law hang on them. Two: I doubt you can surface the kind of clear consensus in the historical materials that you have in mind. At the time of the ratification of the fourteenth amendment, some figures thought it would clearly incorporate the Bill of Rights against the states; others thought it wouldn't. Some thought it protected an independently defined set of rights; others thought it just said, whatever rights a state recognizes it has to extend to blacks, too. And so on. This second argument is utterly contingent; it's a factual claim about our constitutional history, not any kind of a priori or conceptual claim.

Posted by: Don Herzog | Feb 25, 2005 10:36:07 AM

Posted by: baa

Here are some generic criticisms of a theory of interpretation:

1. The theory underdetermines the results in many cases
2. Exponents of the theory disagree on how it is applied, and multiple contradictory versions of the theory exist

I have no doubt these criticisms apply to originalism, and to other theories of legal interpretation. As for to the publicity requirement Don Herzog suggests in his comment above, it seems very likely to me that many theoretical approaches to legal interpretation will be hard to square with robust transparancy. Experts will be needed to determine facts relevant to the theory, and experts will be needed to apply the theory, and expertise is never transparant. In brief, then, I think discussions of originialism, or Larry Solum's neoformalism need to take place in a comparative context. The question we need to answer is not "is theory X complex and imperfect." It is! Rather, we need to know how it stacks up against other theories.

As others have pointed out, Herzog's comment "why in the world should we be governed by the views of a relatively narrow group of people?" is exactly the right question. Our political system does allow us to be governed by views of a narrow group. If 51% of Americans may want their congressman to establish scientology as the state religion, it's tough luck for them! Judges have immense power to contrain the actions of our representative government. The point of restrictive theories of legal interpretation is to put some limit on that power. Formalism and originalism are devices to do that. Many of us (even social liberals) don't want to wake up some morning and find out that some new kookaberra thing has turned into a constitutional right via a 5-4 vote. I'd like to hear more from Don Herzog about how his favored scheme of interpretation handles this problem.

Posted by: baa | Feb 25, 2005 11:35:47 AM

Posted by: john t

Bahko come on now,we both can think of situations where original intent is applicable,and although we would come up with some that differ we'd also come up with some that are the same. We could certainly go to the body of the Constitution for this, a particular political movement counting rather heavily on the full faith and credit clause for example,but we can just as well refer to numerous amendments,some so obvious as to cause a snigger or two. Take your pick;you have a problem with the 8th,the 4th,how about tthe 12th,16th 17th ? Tht contentious 2nd as far as I know has never had a Landmark decision visited upon it,there are others where there is broad agreement as to entirety or as to particular clauses. Originalism is not the byzantine maze it's made out to be but if you wish to criticise the moral deficiency of conservatives who am I to stop you

Posted by: john t | Feb 25, 2005 11:50:54 AM

Posted by: Chris

It seems to me that the views of anyone who is proposing language as part of a process that requires several people to act--enacting the Fourteenth Amendment, or passing a statute, or agreeing to a contract, or authoring a judicial opinion for an appellate panel--only matter to the extent that they match the views of a hypothetical reasonable observer of the lanaguage at the time. Bingham is not authorized to use language in an idiosyncratic way, even if he was the one who proposed the language that Congress adopted and the states ratified. Rehnquist is not authorized to attach an idiosyncratic meaning to the words that the rest of the Court agrees to, just because he is the one who composes them. This means that there will always be a question whether a particular framer is being reasonable in explaining what the text means, because to the extent that his explanation is not reasonable, we are not justified in thinking that the others whose consent was required actually attached the same meaning to it. That said, however, we should have a default presumption that those who commented on language in 1866 do indeed offer a reasonable view. Most people who use language know what they're talking about, though temporal distance makes the presumption easier to overcome.

Constitutional theory needs more attention to the philosophy of language in the Fregean tradition. We should distinguish between the original sense of the constitutional language, which is unchanging and binding, and its original referent, which, because it depends on changing facts, can change. We need to get back to the wisdom of Euclid v. Abler Realty, 272 U.S. 365, 387 (1926):

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…

Posted by: Chris | Feb 25, 2005 11:58:49 AM

Posted by: Peter Wizenberg

Many people are opposed to the idea that the U.S. Consitution is a 'living document'. For example, some people argue that the 14th Amendment's Equal Protection clause doesn't mandate that same-sex couples be allowed to legally marry, since none of the people who were involved in enacting the 14th Amendment would have supposed that that would be the case, or indeed would have supported the legalization of same-sex marriage. I'm sympathetic to the idea that we should interpret laws in light of our best current understanding of the manifold purposes of law.

The Talmud, (the Jew's NEW Testament, in the sense that it amplifies and supersedes, in some sense, the Torah), evinces the argument that our understanding of law evolves and develops; read below.


One particularly well-known bit of aggadata is found in the talmudic tractate Bava Mezia 59b. The aggadata follows a halakhic discussion in which the rabbis debated whether an oven that had become impure could be purified. While almost all the sages felt it couldn't be, Rabbi Eliezer, a lone voice but a great scholar, disagreed:

"On that day, Rabbi Eliezer put forward all the arguments in the world, but the Sages did not accept them.

"Finally, he said to them, 'If the halakha is according to me, let that carob­tree prove it.'

"He pointed to a nearby carob-tree, which then moved from its place a hundred cubits, and some say, four hundred cubits. They said to him 'One cannot bring a proof from the moving of a carob-tree.'

"Said Rabbi Eliezer, 'If the halakha is according to me, may that stream of water prove it.'

"The stream of water then turned and flowed in the opposite direction.

"They said to him, 'One cannot bring a proof from the behavior of a stream of water.'

"Said Rabbi Eliezer, 'If the halakha is according to me, may the walls of the House of Study prove it.'

"The walls of the House of Study began to bend inward. Rabbi Joshua then rose up and rebuked the walls of the House of Study, 'If the students of the Wise argue with one another in halakha," he said, "what right have you to interfere?'

"In honor of Rabbi Joshua, the walls ceased to bend inward; but in honor of Rabbi Eliezer, they did not straighten up, and they remain bent to this day.

"Then, said Rabbi Eliezer to the Sages, 'If the halakha is according to me, may a proof come from Heaven.'

"Then a heavenly voice went forth and said, 'What have you to do with Rabbi Eliezer? The halakha is according to him in every place.'

"Then Rabbi Joshua rose up on his feet, and said, 'It is not in the heavens' (Deuteronomy 30:12).

"What did he mean by quoting this? Said Rabbi Jeremiah, 'He meant that since the Torah has been given already on Mount Sinai, we do not pay attention to a heavenly voice, for You have written in Your Torah, 'Decide according to the majority' (Exodus 23:2).

"Rabbi Nathan met the prophet Elijah. He asked him, 'What was the Holy One, Blessed be He, doing in that hour?'

"Said Elijah, 'He was laughing and saying, "My children have defeated me, my children have defeated me.""'

The British-Jewish scholar and writer Hyam Maccoby has commented: "This extraordinary story strikes the keynote of the Talmud. God is a good father who wants His children to grow up and achieve independence. He has given them His Torah, but now wants them to develop it...."

Posted by: Peter Wizenberg | Feb 25, 2005 12:08:08 PM

Posted by: noahpraetorius@hotmail.com

My view is that constitutional jurisprudence is so completely arcane and divorced from what non-lawyers think the constitution meant as to be undermining our democracy.

Maybe its time for a rewrite.

Posted by: noahpraetorius@hotmail.com | Feb 25, 2005 12:31:16 PM

Posted by: SamChevre

It seems that ANY theory of legal interpretation is subject to some generic criticisms; baa mentions 2, and I would add a third: the basis may be agreed on, but exactly what evidence should be considered may not be clear. For example, is foreign law relevant to deciding "what is a cruel and unusual punishment?" What about polling results?

Thus, it seem to me that Dr Herzog's criticisms of originalism could apply just as well to any method of judicial interpretation.

Here is my question: if you want to say, as I do, that the Constitution is a law, and like other laws, it means the same thing until it is changed--is there a name for that theory of interpretation?

Posted by: SamChevre | Feb 25, 2005 12:35:10 PM

Posted by: noah

The beautiful but dangerous lunatic UM law school graduate Anne Coulter commented recently on C-SPAN (rough quote): " the constitution said 'Congress shall make no law' but Congress did make laws, but we lost that argument..."

Dangerous consternation!

Posted by: noah | Feb 25, 2005 12:48:12 PM

Posted by: dave

While the actual legal theory arguments make for fascinating wordplay, the political argument is a lot cleaner and simpler. A substantial section of the public (both left and right) feel that judges are trespassing on legislative turf, enacting societal changes from the bench that should properly be debated by society at large or their elected representatives. In fact, outside of legal theorists, I can't say I've ever heard of anyone who doesn't think that this is the case. Some favor it, as it enables them to push their agenda quickly via the courts rather than slowly by changing public opinion. Some oppose it on tactical grounds but will favor it once they succeed in packing the courts with sympathetic judges (an operation well underway). But pretty much everyone I've read or talked to thinks that legislating from the bench is occurring, and occurring regularly. Whatever you feel about tobacco regulation, or gay marriage, or school funding, or land use, or the death penalty, it's tough to make a principled argument that we are better off as a society if policy in those realms is made judicially rather than legislatively.

Paradoxically, the big loser in all of this has been the left. While racking up many tactical victories by legislating from the bench, the left has gotten a lot less good at convincing the public of it's goals. Why bother, when you can convince a judge. The left's thirty-odd year legislative decline has a lot to do with it's judicial triumphs.

But, hey, keep talking originalism, incorporation, and Talmud. That'll convince 'em in Kansas.

Posted by: dave | Feb 25, 2005 12:54:55 PM

Posted by: noah

Serious question Don,

Ive been thinking about printing up some bumper stickers promoting Anne Coulter for the Supreme Court...what is your opinion of her grasp of constitutional law?

(And yes I am a Anne Coulter groupie...isn't everyone?)

Posted by: noah | Feb 25, 2005 1:07:10 PM

Posted by: Chris

The 42nd Congress took office in March 1871; the 39th Congress proposed the 14A in 1866.

Posted by: Chris | Feb 25, 2005 1:23:19 PM

Posted by: Tad Brennan


I like your point about Fregean philosophy of language, but I think the phrase "original referent" is probably not what you want.

Take the question of whether Star-trek phasers will be covered by the "right to bear arms" clause. I would say that phasers were not part of the "original referent" of that clause, i.e. what we could plausibly imagine the original users meant to refer to by using words with that sense. The "original referent" of their phrase may just have been sabers, muskets, and so on. On the other hand, I would say that phasers *will be* part of the referent of the "original sense" of that phrase (when there are phasers to refer to).

So I guess I'm proposing that you relabel your distinction: granting that there is some "original sense" that is fixed and immutable, what changes over time is not the "original referent" but the "current referent of the original sense" or the like. Clumsier, but I hope it gets your point across more clearly.

Posted by: Tad Brennan | Feb 25, 2005 1:35:37 PM

Posted by: Chris

Yes, that's more felicitous. Thanks. The original reference of the constitutional language is not binding. The reference of the constitutional language can change, but the original reference will always be what it was. The original sense of the constitutional language is binding and unchanging on my view.

Posted by: Chris | Feb 25, 2005 1:53:47 PM

Posted by: john t

Tad and Chris, Think of it as an awareness on the part of the Founders that where once was used the fusil and the blunderbuss there came the rifiled bore. That weapons and times would change and hopefully the people would not lose their heads, The last hope being only partially fulfilled.

Posted by: john t | Feb 25, 2005 2:14:10 PM

Posted by: Will

Good Comment dave.
Words are like slippery little eels, constantly squirming out of our minds' myriad cubby-holes. As many have pointed out, I don't think there's ever going to be a perfect method for interpreting and applying laws written in a different world -- for that is surely the case of america 250 years ago. If Don has a more reasonable way than (that idiot?) Justice Scalia, then I'm quivering with anticipation and waiting breathless to hear them.
To bad we can't write our laws out mathematically, where every definition and variable is totally specified and the undefined terms and assumptions are specifically noted -- but that's just me the applied mathematician talking.

Posted by: Will | Feb 25, 2005 2:38:33 PM

Posted by: Don Herzog

Will, where in the world did that offensive parenthesis about Scalia come from? I don't get it. I am not an originalist, and he is. Does that mean I think he's an idiot? No, not at all. I much admire his work -- I always teach A Matter of Interpretation in my seminar on constitutional interpretation, and in first amendment I not only take his views extremely seriously, I sometimes agree with them. I think for instance he is absolutely right in dissenting in one case after another where the Court approves of shutting down anti-abortion protests.

I don't think I've injected any sneering into this discussion, so I'd much rather you not flirt with attributing it to me.

Posted by: Don Herzog | Feb 25, 2005 2:46:14 PM

Posted by: noah

A story that repeatedly pops up is that the famous mathemetician/logician Kurt Godel at his naturalization hearing lectured the judge that the US Constitution lacks internal logical consistency.

Has anyone ever considered whether it is possible to enumerate human rights in a completely consistent manner...so that it would be possible to program a computer to adjudicate all questions about the law?

Posted by: noah | Feb 25, 2005 2:59:21 PM

Posted by: Jay Cline

I personally reject the notion that interpreting the Constitution, or any law, must be done ONLY with regards to the original intent of whomever. Interpreting the constitution must take into consideration not only the intent of the framers, and the ratifiers, but also the resulting consequences of the enactment of that law.

No one, including the framers and ratifiers are omniscient or clairvoyant, or necessarily wise. To subscribe to a strict originalist credo, as many of my fellow conservative friends do (more for political motivations, I suspect), is to ascribe omniscience to some (the originators) and not others (the plaintiffs and defendants in the case currently being adjudicated). The Law of Unintended Consequences, for better or worse, reigns and cannot be ignored.

And it is then not a huge step to accept that current thought must also be relevant, not only from the plaintiff and the defendant of the particular case before the Court, but also the Court itself. As Justice O'Conner has said, even judicial thought from other countries, though not binding here, must also be considered, if relevant. Better to arm oneself with knowledge than dogmatic certainty.

The original framers and ratifiers of the Constitution embodied in the Judiciary the freedom to interpret the Constitution. If they believed in omniscience, why would they then believe anyone needed to interpret their words?

ps, not all conservatives are "strict constructionists" and I appreciate Don Herzog's efforts to avoid that fur fight.

Posted by: Jay Cline | Feb 25, 2005 3:40:54 PM

Posted by: frankly0

Well, it does strike me that there's at least one way of rescuing a version of originalism from incoherence.

Namely, if a given interpretation of a certain piece of language is inconsistent with the intent of all, or virtually all, of the parties who were, at the time, involved in the decision to adopt that language, then THAT is incompatible with the "original" meaning of the clause. Point is, whether the class of "original agents" is narrowly or broadly construed, the result would come out the same.

Now some interpretations of some pieces of language will fall under this rubric, and others won't, but the principle DOES throw out certain possible interpretations of some clauses.

Another, broader criterion might be that the language should be understood in such a way that, at least plausibly, it could have passed through the various hurdles imposed on its adoption if that interpretation had been made explicit. How could it reasonably be said, after all, that the true intent of the language was really something quite completely incompatible with what people would have been willing to vote through? I think that it makes sense to understand the "intent" of the language in this fashion, so constraining the set of possible interpretations. Whether we honor every aspect of a nineteenth century intent in the twenty-first century is of course another question.

On this latter notion of originalism, it's hard for me to believe, for example, that the original intent of the 14th amendment could not tolerate segregation in schools, since that was such a pervasive, widely accepted practice at the time of the adoption of the 14th amendment. Is there ANY plausibility to the idea that it would have been passed by Congress and the States in required numbers if THAT potential aspect of its interpretation had been made explicit?

All of which is to say, even though "originalism" can perhaps be made coherent, it can't be made sensible. Society moves on, and so much the worse for originalism.

Posted by: frankly0 | Feb 25, 2005 4:21:17 PM

Posted by: Chris

On the school segregation issue, I don't think it's right to say that it was pervasive and widely accepted by the framers of the Fourteenth Amendment. Certainly, there was no clear argument from the text of the Fourteenth Amendment to the conclusion that segregated schools were constitutional that was accepted by the bulk of the citizenry. Very shortly after the Fourteenth Amendment, Republicans in Congress sharted arguing that racial segregation of public schools violated it, or in the case of D.C. schools, its spirit. Senator Harris said in February 1871, speaking in support of a proposal by Charles Sumner to abolish segregation of the D.C. schools, "We have adopted the principle of equality in the Constitution of the United States, and I think this is a proper place to enact a law in accordance therewith." Sumner attracted majorities of Congress in support of a version of his civil rights bill that would desegregate schools on the basis of the Fourteenth Amendment; only Democratic filibusters stopped it from becoming law. Michael McConnell's article discusses the issue at length.

Posted by: Chris | Feb 25, 2005 4:37:03 PM

Posted by: mikec

I think any theory of how to interpret laws should at least answer the following question: What, exactly, is the point of conceiving of a law, drafting it, debating it, amending it, debating it again, and finally ratifying it? I have a lot of trouble accepting a theory of interpretation that makes the entire ratification process, as well as the final language, irrelevant.

Posted by: mikec | Feb 25, 2005 5:01:40 PM

Posted by: Jay Cline

The point of judicial authority, and legislative authority, within the realm of the Constitution is not that judicial or legislative authority is superior over the other, or even intrinsically right, but that any power thus construed can be abused. The Basic Intent of the Constitution is to allow a governance without unduly fostering corrupting influences to overwhelm the system. The Court is not by virtue always right; nor is the Congress by majority consent always right. Fundamentally, if there is disagreement between the Branches of Government, or between the Peoples, there are tried and true and construed methods to resolve those differences.

Case in point, the cause d'celebrity of modern "constructionists"; Roe v Wade. Was the Court acting within its bounds in its decision? Yes. Sorry. I haven't heard one good argument to say that it wasn't. The only argument mustered is, did the Court have the authority? Judicial Authority (Article III Section 1, I believe is where the Court gets that Authority) is about adjudicating, reviewing cases and passing judgements, balancing points of law. In other words, interpreting.

Was the decision right? Dunno. But if the Peoples do not like what the Courts decreed, pass a law that will pass Court muster. If, as is accused, the Court is so biased and closed-minded and would just declare THAT law unconstitutional (probably on the same grounds as RvW) then get a Constitutional Amendment that says explicitly, Abortion is Murder. If you can't do that, YOU do not have legislative authority.

I am (obviously) not a constitutional legal expert, so there is probably a lot of room for criticism here, but to me the current debate about the Court exceeding its authority is dubious and sounds like mere political posturing, setting the stage to build public support and "stack" the Court the "other way". Nothing wrong with that, that is the political process. But a lot of good rhetoric and bad newsprint seems to be wasted arguing technicalities, and I thought getting off on legal technicalities was a real bugaboo with the Right.

Posted by: Jay Cline | Feb 25, 2005 7:06:13 PM

Posted by: Perseus

Concerning the question of which group of people you consult to discover original intent, the widest group would be the state ratifying conventions (and state legislatures) since they, not the people directly assembled, are the ratifying bodies designated by the Constitution. The understandings of the citizens at large would therefore be ignored. But Don Herzog is apparently uncomfortable with that possibility so he adds his own extra-constitutional criterion of "democratic legitimacy," which he tries to link to the preamble "We the People." Indeed, he asks: "But why in the world should we be governed by the views of a relatively narrow group of people?" If I were to accept that premise, I would ask: why should we even allow the views of 9 old geezers on the Supreme Court to determine the meaning of the document that governs us? Why not refer every disputed meaning of the Constitution to the people to be decided? Wouldn't that maximize "democratic legitimacy"?

To the more general question of whether original intent is a fully adequate means for settling every issue of constitutional interpretation, the answer is clearly that it is not. But as the advocates of original intent argue, that really misses the point. Any evidence that can be gathered about the intent of a particular constitutional provision illuminates its meaning and therefore ought to weigh heavily in its interpretation. In addition, the debate about original intent really must be put into the broader context of opposing views about constitutional interpretation such as the "living Constitution" or the attempt to fuse constitutional law and moral theory. So I will be waiting to see Herzog's own views on how judges should go about interpreting the Constitution.

Posted by: Perseus | Feb 25, 2005 9:11:29 PM

Posted by: noahpraetorius@hotmail.com

Actually maybe the way out of the morass of constitutional jurisprudence would be an amendment which voided the constitution in its entirety and then merely append the original language sans the 14th amendment which seems to have operationally voided much of the original document and go from there.

This would have the effect of saying to the court "this is what we mean and we mean what we say". A shot across the bows so to speak.

Posted by: noahpraetorius@hotmail.com | Feb 25, 2005 9:42:40 PM

Posted by: john t

noahpraetorius the procedure would be to pass an amendment that repealed the 14th as the 21st amend repealed the 18th. Not a bad idea but but would the dogs be baying at the moon at that one. I think a simpler,more practical,and infinetly more satisfying expedient would be simply to ignore an egregiously idiotic court ruling,which idiotic or not is exactly what the sainted Lincoln did in the Merryman case. When Taney issued a writ for the release of a rioter the U S Marshall delivering it was blocked by Union troops at the fort where the prisoner was being held. If a fool of a judge in Topeka or Scranton or Walla Walla decides to negate a law passed by both houses of congress and signed into law by the president it might be worthwhile every twenty years or so to ignore him,with appropriate hints that he might wish to enforce the ruling himself. Somewhere in the various Judiciary acts, I believe the one of 1891 such a power is referred to in constitutional cases,but if,if it gives such a power to a single federal judge it's time to at the least write a new judiciary act. Alternatively we might stick with the Lincoln approach, If nothing else it would be entertaining to see one of our judicial little ceasars squirm.

Posted by: john t | Feb 25, 2005 11:11:41 PM

Posted by: marvyt

If one is looking for "original intent" the ratifiers of the Constitution should be used. The constitution had no validity until it was ratified. Unfortunately, most of the state constitutional conventions lacked formal notes or minutes. The notes and observations we have from a few of these conventions are very thin and do not establish much evidence for intent or understanding. In some state delegations, some parts of the proposed constitution were barely discussed. Original itent is impossible to devine, especially because the Bill of Rights were added as a rush job after the fact. The Consttution needs to be an evolving document based on the understanding and concensus of "We the people". So the concept of judicial activism is pretty much in the eye of the beholder.

Posted by: marvyt | Feb 25, 2005 11:54:39 PM

Posted by: neal

I was listening to this PBS interview with Ralph Nader, and he supported Judge Bork, surprisingly. Nader said something to the effect "I don't agree with inventing rights in the constitution, because if you can invent them, then you can also take them away."

The judiciary is not meant to create laws, that's the role of the legislature. You may currently like the creative interpretation of the laws, but you may not like them tomorrow. I say it is in the interests of the people to try to keep the judiciary as neutral as possible, and as confined as possible. That way "We the people" have the greatest ability to influence the law in the democratic sense (like what happens if over the next 12 years some very "conservative" justices are appointed).

Maybe it is, as Don tells us, really hopeless, and perhaps he will share with us his view of how the judiciary should define laws. But I for one find the idea of giving up on interpreting the law as it was originally meant disturbing.

But why in the world should we be governed by the views of a relatively narrow group of people?

Well, if you believe the people that draft and amend the constitution are narrow, then consider that the justices are narrower still, being chosen by the group Don derides as narrow, and having a very long shadow, with no opportunity to be kicked out.

Posted by: neal | Feb 26, 2005 3:53:36 AM

Posted by: Jay Cline

To argue that the Court must be held to some standard of democratic legitimacy ignores the one salient point from the Original Intent of the Constitution. The Court was deliberately construed to be the most anti-democratic and the most unresponsive Branch of the Government to public will.

Remember, the Constitution was written nearly in the wake of the bloody English Civil War 130 years earlier. That Grand Experiment failed utterly, mostly because the true organ of democratic will, the legislature, had no limits in the powers it assumed. It replaced a Crowned King with a Committee of Kings. Even the third and early fourth quarter of the 18th Century saw legislative abuses in England and America that greatly concerned the Original Framers. In fact, up until the last, the Complaints of the Colonies were directed against the English Parliament and The Colonists were seeking assistance for redress from the King.

In fear of what Jefferson wrote about the tyranny of the mob (remember the Sons of Liberty?), the Court was isolated from democratic will to the extent they could adjudicate without fear of democratic reprisal. Argue all you want about making those nine old geezers more responsive, but when I have my day in Court, I'd rather have the decision made on the merits of the case, not by some popularity contest.

Posted by: Jay Cline | Feb 26, 2005 4:37:34 AM

Posted by: Don Herzog

Three points on democratic legitimacy and law.

One: Perseus suggests that the broadest group we can turn to is state legislatures or ratifying conventions, and not, as I'd suggested, citizens at large. I think those legislatures and conventions are acting in their capacity as representatives of the citizens. I do not think representation is merely the passive aggregation of popular views. But that doesn't mean popular views are irrelevant in construing what a representative body does.

Two: you bet, there are senses in which law and politics have to be sharply distinguished. I'm 100% with Jay Cline when he writes,

Argue all you want about making those nine old geezers more responsive, but when I have my day in Court, I'd rather have the decision made on the merits of the case, not by some popularity contest.

But the constitutional law they turn to, the law we ask them to enforce impartially against whatever current popular pressures they are, doesn't come from Mount Sinai or Brussels or the American Law Institute. It comes from a process of ratification more broad-based and deliberative than ordinary legislation.

Three: some are wondering why the Supreme Court gets final or unique say on constiuttional law, anyway. That raises other issues I'm not pursuing here. For a first-rate provocative case that our current conception of the Supreme Court's role is a historical anomaly and a bad idea, see Larry Kramer, The People Themselves.

Posted by: Don Herzog | Feb 26, 2005 8:15:10 AM

Posted by: D.A. Ridgely

I enjoy taking a swipe at the Warren Court as much as the next fellow (which is apparently Kramer's position), but you’d be hard pressed to convince me it isn’t all John Marshall’s fault. For those of you who may not recall the fascinating politics behind that most inspired piece of legal sophistry, blatant conflict of interests and judicial overreaching, 5 U.S. (1 Cranch) 137 (1803), here’s a bit of perspective with some observations I think may be relevant to the current topic.

Posted by: D.A. Ridgely | Feb 26, 2005 9:05:56 AM

Posted by: noahpraetorius@hotmail.com


What is wrong with We, the people, saying to the court that we are not happy with what they have wrought? Seems to me we are in one of those "if mama aint happy aint nobody happy" eras in our history. If that sentiment cannot garner the support required by the Constitution then of course nothing happens but judging by the many comments here it is by no means certain that it wouldn't.

Also Newt Gingrich has made proposals regarding restricting jurisdiction in some way. What are your thoughts? Isn't the widespread feeling that the courts have illegitimately seized power a concern?

Posted by: noahpraetorius@hotmail.com | Feb 26, 2005 9:11:40 AM

Posted by: Don Herzog

Kramer is not taking a swipe at the Warren Court, though it's amusing he's been adopted by Newt Gingrich and others who want to do that. On Kramer's reading, all Marshall was saying was that courts too get a say on constitutional meaning. The reigning view of the day was departmentalism: all three branches make their judgments, and no one has the final right to make their judgments stick. Very political, very messy.

And noah, nothing at all is wrong with our saying we're unhappy with what the Court does. People say it all the time. We can even amend the Constitution if we don't like something that now passes for constitutional law. I'd oppose jurisdiction-stripping, but that too is another matter.

Posted by: Don Herzog | Feb 26, 2005 9:55:24 AM

Posted by: john t

marvyt On original intent you may wish to refer to Bernard Bailyn's The Debate on the Constitution,all 2100 pages of it. I have no difficulty in ascertaining a comprehensive overview of what the framers wanted but it seems a prehistoric rune to others. The Bill of Rights was enacted over four years after the convention and had been amply debated well prior to the States ratification of the COnstitution,I don't think that's a rush job. Jay Cline It has been said often enough that the Supreme's keep an eye on election results,I can't know how true that is but I hope it has a foundation. Certainly it is true that as best they can they should retain a sense of the commonality of opinion,as for example Scalia has stated. You say"when I have my day in courtI'd rather have the decision made on the merits of the case". But that begs the question,given original intent or in a broader sense,precedence,what ARE the merits of your case. I won't speak for Perseus but I think he was making a rhetorical point against Don H's reference to a small and narrow group etc. As such I think it was fair. Your refernce to Jefferson is ironic considering he more than anyone distrusted the court and was quite a mob man himself,i.e. French Revolution,Democratic/jacobin clubs and so on. Perhaps I'm making a mountain out of a molehill and as such I stand to be corrected

Posted by: john t | Feb 26, 2005 10:00:30 AM

Posted by: noahpraetorius@hotmail.com

Thanks for the link DAR.

How would or has the court ruled on restrictions of its jurisdiction in the past? (I read the paper you referenced but I must admit I don't really understand what happened...perhaps the facts need further expansion!)

Posted by: noahpraetorius@hotmail.com | Feb 26, 2005 10:22:00 AM

Posted by: noah

Or (shudder) I need to go to law school.

Posted by: noah | Feb 26, 2005 10:29:29 AM

Posted by: D.A. Ridgely

Mr. Herzog:

Well, I admit to not having read Kramer. I think you’re being too generous in what I infer to be your take on Marshall, though. He knew damned well that Jefferson would have refused an order to deliver Marbury’s commission, forestalling a constitutional crisis until the political environment was less hostile.


Insofar as anything can be considered settled constitutional law, it is reasonably well settled that Congress cannot alter the Court's express Article III jurisdiction. However, Art. III, Sect. 2 provides that "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." It would appear, therefore, that Congress could deny jurisdiction to the Court regarding some specific subjects, but the topic is highly controversial.

Posted by: D.A. Ridgely | Feb 26, 2005 10:35:37 AM

Posted by: john t

D A Ridgely Thanks for reminding me and jumpstarting my feeble brain but that's what I referred to last night re the Judiciary Acts. It ties in as well to popular[as in the people]retstraint on an increasingly adventurous judiciary,at least in the representational sense. The subject is controversial because many people like the overall direction courts are taking,federal at all levels,as well as state.

Posted by: john t | Feb 26, 2005 10:47:23 AM

Posted by: Will

Sincerest apologies to Don!

I've always admired Scalia, so I get a little defensive :)

Posted by: Will | Feb 26, 2005 11:11:26 AM

Posted by: Don Herzog

I quite agree with Mr. Ridgely's observation about Marshall's knowledge that Jefferson wouldn't have delivered the commission. Kramer's point, defended brilliantly, is that the much-quoted claim in the opinion,

It is emphatically the province and duty of the judicial department to say what the law is.

does not mean that courts have unique or final say in the matter; it just means that they too get to decide.

One irony about Marbury that might give further pause to originalists: today we take for granted the rule of avoidance, which dictates that courts, including the Supreme Court, not reach constitutional questions if they can decide the case on other grounds. Marbury is flagrantly the opposite: all Marshall has to do is trot out his argument about the statute and jurisdiction, and the case is done. The whole argument about the constitution and judicial review is then a digression, as far as deciding the case on the merits goes. The rule of avoidance is a damned good idea, but it has a profane history far away from the sacred story of originalism.

Posted by: Don Herzog | Feb 26, 2005 11:14:28 AM

Posted by: noah


Was it not inevitable that the Supreme Court would eventually adopt Marshall's opinion? How could the law function without an arbiter of constitutionality? Or am I, like most non-lawyers, completely missing the point?

Posted by: noah | Feb 26, 2005 11:40:51 AM

Posted by: john t

It is worth adding on to Don H's post that the next exercise in judicial review came in 1857,a modest 54 years later. After the passage of the post Civil War amendments things did start to loosen up a bit. Also of interest is the fact that it was Marshall,as outgoing Secretary of State whowas responsible for not delivering Marbury's commission. Additionally Marshall,who may have referred,or certainly was aware of Hamilton's arguments the Federalist Papers,viewed his ruling as at least a partial restriction of gov't power,a point not dear to the hearts of those who seek expansionist judicial power,depending on who's sitting on the court of course. This is offered only as food for thought.

Posted by: john t | Feb 26, 2005 12:06:41 PM

Posted by: Thomas

What Don doesn't tell you is that this debate has very nearly played out, and that everyone agrees that originalism has, and (importantly) all of the alternatives to originalism have, serious flaws. There is no theory without its difficulties.

So the question either becomes a comparison of the relative evils, or a question of political theory, or a question of who has the burden of proof. None of those are addressed here.

Posted by: Thomas | Feb 26, 2005 2:12:23 PM

Posted by: D.A. Ridgely


I think it’s probable that something akin to how our ‘living’ history of constitutional law (as opposed to our ‘living’ Constitution) would eventually have resulted in much the same sort of judicial oversight (much as executive departments and political parties developed), but only because there is a sort of tacit conspiracy among all the branches of government to make the dammed thing work. One reason the Court has been, until fairly recently, reluctant to overplay its role of judicial review has been its awareness that it has no power, per se, to enforce its rulings. Similarly, both Congress and the Presidency have enjoyed playing chicken on issues of dubious constitutionality. For example, every president since the War Powers Act was passed has bridled at it and claimed it is an unconstitutional restriction on the executive’s commander in chief powers. Conversely, Congress has on several occasions claimed the administration has violated the Act, but neither side has been willing to submit the question to the Supreme Court, since neither side is willing to risk losing. My point is that all three branches are adept at what the old Cold Warriors used to call “Brinkmanship.”

By the way, I don’t think being a lawyer or not has anything to do with missing the point. Many lawyers and legal scholars and philosophers have sought to restrict the judiciary (and government in general) by binding it to some sort of objective and independently ascertainable standard (what some legal philosophers have referred to as an “ultimate rule of law” or “ultimate rule of legal recognition.”) In a second-hand sort of way, that’s what originalism and strict construction in constitutional law are all about. Thus construed, however, I think it’s a fool’s errand.

Posted by: D.A. Ridgely | Feb 26, 2005 3:47:18 PM

Posted by: Perseus

I agree with Don Herzog that ratifying conventions and state legislatures are acting in a representative capacity. But I believe that popular opinion will be reflected (to whatever extent) in the views expressed by the ratifiers. To put it in Mansfield-esque terms, directly consulting popular opinion in any way during the process of discovering original intent would constitute populist informality that goes behind the formally designated ratifying bodies.

Re: Marshall's digression about the Constitution and judicial review in Marbury. Marshall was trying to set an early precedent to shape the role of the Court in the constitutional system, which is really the activity of a founder. It was the same sort of thinking that led Hamilton to exercise the federal government's power of internal taxation--the excise was likewise not absolutely necessary--as soon as possible "lest a total non-exercise of it should beget an impression that it was never to be exercised & next that it ought not to be exercised.” Viewed in this light, I see nothing particularly disturbing about Marshall's decision.

Posted by: Perseus | Feb 26, 2005 5:50:19 PM

Posted by: john t

Perseus I can live with your comments about Marshall,a truly great man,Jefferson feared debate with him,not that that alone proves greatness. I would just like to add that I'm not disturbed by his Marbury decision,he did go on at some length about restraining gov,t power and there was a 54 yr gap between that and the Taney/Dred Scott case. It's the subsequent history of review that I'm concerned with. As to Hamilton and the excise taxes,I'm sure prompitude was on his mind but also the retirement of heavy and worthless state debt.

Posted by: john t | Feb 26, 2005 6:21:06 PM

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