Constitutional originalists frequently understate the case for constitutional originalism.
Professor John McGinnis is a prominent and persuasive exponent of originalism. However, in his posting,ย The Empire Strikes Back Against Originalism, which Michael Ramseyย summarizes here,ย he misses some opportunities.
Consider his quotation of James Madison: โI entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.โ Thatโs fine as far as it goes, but here is Madisonโs entire passage, written in aย 1824 letterย to Henry Lee:
โWith a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption. Not to look further for an example, take the word โconsolidateโ in the address of the Convention prefixed to the Constitution. It then and there meant to give strength and solidity to the Union of the states. In its current & controversial application it means a destruction of the states, by transfusing their powers into the government of the Union.โ
Professor McGinnisโ extract might suggest Madison was merely making a theoretical observation, when he was actually launching a full-throated attack on what we would call โliving constitutionalism.โ The complete passage forces the question: Why should we apply to Madisonโs constitution an interpretative technique he so roundly repudiated?
As a general matter, originalists tend to understate their case in at least three ways:
- They understate how long originalism has prevailed in Anglo-American documentary interpretation;
- they do not emphasize the degree to which originalism has prevailed, and still prevails, throughout Anglo-American jurisprudence; and
- they downplay the role of the subjective understanding behind a documentโs words in fixing the meaning of those words.
First: Professor McGinnisโs posting provides an example of temporal understatement in his remark that originalism โhas been around since the early republic,โ citing Madisonโs 1824 letter.
But by 1824 Anglo-American courts had been applying originalist methodology for centuries. Specifically, the โintent of the makersโ had been the lodestar of documentary construction since at least the 1500s. Myย 2007 articleย on the subject contains many examples, but here is one from the Founding-era:ย In 1782, the Virginia Supreme Court of Appeals decidedย Commonwealth v. Caton. It applied originalist methods to the Virginia constitution, with judges referring repeatedly to the โmakers of the constitutionโ and what was โintended by the framersโ (who were, in this case, also the documentโs ratifiers). Participants in theย Catonย case included several Founders of the first and second rank, including Edmund Randolph (as an advocate) and Edmund Pendleton (as a judge).
Anti-originalists sometimes contend that originalism is a creation of modern conservatives. History renders this claim risible.
Second: Originalists need to emphasize that the โintent of the makersโ standard is not unique to constitutional interpretation. It is, and long has been, the standard for interpreting documents generally. Pre-Founding-era and Founding-era legal sources show the โintent of the makersโ guiding construction of documents of all kinds, with the notable exception of real estate conveyances. Of course, the identity of the โmakersโ varied with the nature of the instrument. For a statute, the โmakersโ were the legislators (not the legislative drafters); for a will, the testator; for a contract, the contracting parties; for a constitution, the ratifiers.
Today we usually refer to the โthe intent of the partiesโ rather than the intent of the makers, but originalism remains the prevailing rule of documentary construction throughout the law. In fact, it has expanded its empire to include real estate conveyances, as I showed in my conveyancing treatise many years ago (Modern Law of Deeds to Real Property,ย Little, Brown &Co., 1992).
In my view, far too many constitutional commentators (both originalists and non-originalists) arrive at their positions without significant experience in other areas of the law. Exposure to a variety of legal subjects helps us understand the product of the framers, most of who had multi-subject law practice experience before they started writing constitutions. If we required law professors with constitutional ambitions to work first in fields such as contracts, property, and estates, then I think claims that originalism is unique or fabricated for conservative ends would largely disappear.
Third: Perhaps in reaction to Professor Jeff Powellโs much-citedย 1985 law review articleโor in reaction to Justice Scaliaโs views of statutory interpretationโmany originalists have unwisely distanced themselves from the ratifiersโ subjective understanding in favor of objective public meaning.
Yet in other areas of the law, when coherent evidence of subjective understanding is available, courts give it great, often decisive, weight. When the evidence demonstrates sufficiently that the written words differ from the subjective understanding, courts often employ the equitable remedy of reformation to ensure that the words comply with the understanding.
Contrary to Jeff Powellโs thesis, the jurisprudence of the 16th, 17th, and 18thย centuries demonstrates that Anglo-American lawyers similarly valued the subjective understanding behind documents being construed. When good evidence of subjective understanding was available, courts used it to clarify the words. Occasionallyโas the court did unanimously in theย Catonย caseโsubjective understanding could trump the words. Thus, the following maxims were common during the Founding-era:ย Ut verba serviant intentioni & non intentio verbisย (โSo that the words serve the intention and not the intention the words โ) andย Qui haeret in litera haeret in cortice. (โWho sticks [only] to the letter sticks to the barkโ).
I am not, of course, suggesting that courts re-write the text of the Constitution to conform to ratifier understanding. (Aside from perhaps one or two clauses, there is very little variance.) But where subjective understanding is clear, we should unapologetically apply it in construing the text.
Originalism is not some competing theory of fairly recent origin, or even of 19thย century origin. It has been the dominant method of documentary interpretation in our legal systemโand a central feature of the rule of lawโfor at least five centuries. Originalists need to start saying so.
Note: A fuller examination of constitutional and other documentary interpretation at the Founding appears in Robert G. Natelson,ย The Foundersโ Hermeneutic: The Real Original Understanding of Original Intent,ย 68 Ohio St. L.J. 1239 (2007).
This articleย first appearedย in The Originalism Blog.
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