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Counterrevolutionaries in Robes: why originalist courts are right for America

Submitted by Simon on Mon, 09/17/2007 - 10:05pm

It seems fitting on Constitution Day to consider the ongoing role of the Constitution in American government, and thus the tools which we use to determine its meaning. Rather than focusing on any specific provision, I think it's better to step back and take a broader view: to consider the ongoing role of the Constitution is to consider the question of how it ought to be interpreted. Since this is a blog post not a treatise, I will of necessity sketch only a dim outline, and ask the reader to bear this in mind.

My approach to interpreting the Constitution is usually known as "originalism"; simply stated, "our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people." "While the proponents of originalism are far from monolithic in [ou]r methods,"1 and while even the same originalist method leaves room for more than one answer in some cases (two persons need not agree on what the original meaning is to agree that it will control once determined, whatever it may be),2 it's my belief that originalism is the only legitimate way to interpret the Constitution, and that this follows ex visceribus res; while I don't expect to take the reader that far, I hope to at least open the door and point the way.

We will obviously need to talk about what originalism is (and even more importantly, what it is not). But rather than tackling that point head-on right out of the gate, I want to begin by walking the reader through a more mundane, run of the mill question. "[T]he Constitution is real law. That's Marbury [v. Madison]'s central point...."3 So if the Constitution is a law (of one sort or another), it seems logical to start with a simpler question: how do we interpret laws? That is, the right way to do Constitutional interpretation will very likely have a great deal to do with the right way to do statutory interpretation.


In statutory as in constitutional interpretations, there are several theories about what law is and thus how the task of interpreting it should be approached.


Many take the position - usually termed "intentionalism" - that the task of a judge "is to give effect to 'the intent of the legislature,'"4 and that judges should "seek to recreate the legislature's intention in order to resolve a particular statutory dispute,"5 usually accomplished by delving into legislative history. On this view, "the written word is but an imperfect reflection of the real law. The true law, the governing rule, is not down on paper; it is in the minds of the legislators. The true rule applies no matter what the words say. If the statute is just evidence of the rule, the debate must go on [even if the text is clear]."6 But to speak of "legislative intent" is akin to saying "we have a headache"; "[i]ntent is elusive for a natural person, fictive for a collective body [such as a legislature]."7 A closely-related approach can be termed "purposivism." As the name implies, adherents try to discern the purpose of the statute; having done so, they may use that purpose to clarify an ambiguous provision (legitimate) or to boost the level of generality in order to go around clear text (not legitimate).

I subscribe to neither of these approaches, although a quick google search for the phrase "give effect to the intent of the legislature" will unmask me as a heretic.8 Nevertheless, in both intentionalism and strong purposivism, it seems to me that the judiciary are conceptualized "as the faithful fiduciaries of the enacting legislature, resolving controversies as that legislature would have chosen[] had it understood the facts of the controvers[y before the court]."9 Yet "[s]tatutes are not exercises in private language."10 "Law is a public act," so surely it follows that "[s]ecret reservations or intentions [on the part of the lawgivers] count for nothing."11

Thinking these problems intractable (as I hope the reader will also), I belong to a school of thought known as textualism. Simply put, we believe that "[t]he words of the statute, and not the intent of the drafters, are the law."12 Our way of interpreting statutes is aptly summed up by an aphorism of Justice Oliver Wendell Holmes (who was not a textualist). We ask, as Holmes wrote, "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used...."13 This is not quite the much-pilloried "plain meaning rule"14; textualism doesn't pretend that words can be isolated from context,15 it doesn't exclude consideration of the background assumptions of a statute (about which more anon), and it certainly doesn't require willful ignorance of terms of art. We do say that "[w]hen a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning,"16, but we of course acknowledge that if words that have both an ordinary and a technical meaning appear in a context implying that meaning, we should give them the technical meaning,17 and in particular, "where Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."18 The point, to put it bluntly, is that intent is not law: the text is the law, not what might have been intended by the legislature (or by any individual member thereof) or by how it was expected to operate.19


There are two primary reasons to be a textualist, each independently adequate to not only justify but require textualism in statutory interpretation.20

The first reason is one of pure formalism: while we might go around and around discussing in philosophical and jurisprudential terms the answer to the question "what is law," in practical terms, law is legislation, and at the federal level, the federal Constitution tells us what counts as federal law. The supremacy clause tells us that "[the] Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." Set aside the Constitution and treaties for now, and focus on the laws of the United States. Article I tells us that such laws must have bicameral approval and be signed by the President. While this presents a somewhat misleadingly simple picture -- for now we can gloss over matters such as the enrolled bill rule, vetoes and veto overrides, constitutional limits on legislation and treaties, and so forth -- the important point for now is that federal law is the product of a process: bicameral approval by Congress and presidential approval of the resulting bill. Congressional intent is at once meaningless (since intentions not expressed in the bill aren't approved by the other house or the President) and irrelevant (since a legislator may very well have no intent at all yet still validly participate in the enacting of a statute - what counts is her vote).21

The second reason, and the one that's more important for my purposes today, is normative, and pertains to the rule of law. It is, after all, "the proud boast of our democracy that we have 'a government of laws and not of men.'"22 If America stands for anything, it stands for the rule of law. The point I want to make was best expressed by Hayek, and it's this: what is the rule of law? According to Hayek,

[s]tripped of all technicalities, ["the rule of law"] means that government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge."23

That is, as I see it, law ought to be knowable; secret laws are inherently tyrannical, and the recognition of this much brings us back to Bork's observation (quoted above) that "[l]aw is a public act," which in turn brings us to the problem of non-textualism: it produces unknowable law. If the law is actually, as Easterbrook characterized the intentionalist mindset, in the head of the legislator not on the pages of the statute book, it is unknowable. Textualists believe that "statutes have serious consequences for people outside of the legislature and that people should not be held to legal requirements of which they lacked fair notice...."24 Of course, this isn't to suggest that ignorance is a defense. Compare the requirements of service of process: due process requires notice of proceedings against them, but due process requires only that the methods used be reasonably likely to inform the defendant, not that the defendant must actually have learned of the suit. Likewise, the rule of law doesn't require that every person know the law, but it does, as I see it, require the law be knowable, which means, as I see it, we ought to consider as law only that which can be known: the words of the law.


"The powers of the [Congress] are defined and
limited; and that those limits may not be mistaken
or forgotten, the constitution is written.

It is hard to overstate the immense significance of the Constitution being written. As Randy Barnett has put it, "[o]nce the importance of text or 'writtenness' is conceded, some version of originalism becomes much harder to resist ... [because] the reasons why text is important are also the same reasons that support some modest version of originalism...."26 I am lead to originalism because I believe textualism follows inescapably from my assumptions about the requirements of the rule of law, and as I see it, originalism follows from textualism and a fortiori from the written nature of the Constitution.

It becomes necessary at this point to get somewhat more specific about what I do and do not mean by originalism. You will often hear originalism referred to as "the theory of original intent," or words to that effect, either directly or in passing. But the attentive reader of Part I will see the problem: if, as contended above, the Constitution is a law similar to (but paramount over) statutory law, and if in construing statutes we should keep in mind that intent is not law, then it would be utterly incoherent to suggest that intentionalism should govern interpretation of constitutional law but not statutory law.

This apparent contradiction is vaporous: originalism is not "the theory of original intent." While there are those who believe in original intent, they are few and far between, and usually have little idea what they're talking about. Like virtually every modern proponent of originalism, "I reject [intentionalism] for both [statutory and constitutional interpretation] ... What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."27 As I see it, the task of interpreting a legal text, whether that text is a statute or the Constitution, is to determine the original meaning of the language – that is, to understand how knowledgeable individuals would have understood the statute's words, read in the context of the whole, at the time when it was enacted.28 In other words, originalism is an overlay over textualism: textualism says that a law means what it says, and originalism accounts for the passage of time by adding - as I think follows inevitably - that a law means what it says when it is enacted.

The originalist, like the textualist, looks first to the text, and gives the text the meaning it bore at the time it was adopted. Then, "[i]f the language has more than one interpretation, then one would look to purpose, structure, and history to help to clarify the ambiguity."29 And "when we dive in murkier waters, where the [Constitution's] command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: by tradition, and by precedent (the latter being tradition given sharper teeth)."

Neither originalism nor textualism are wooden literalism, and nor are they "strict construction." I said above that textualism doesn't deny inquiry into the background assumptions of a statute, and identically, originalism doesn't require is to misread terms of art. Originalists recognize that the constitution was adopted against the background of certain presupositions - against the background of the common law, and so Wilson v. Arkansas, for example, Justice Thomas concluded that the Fourth Amendment incorporates the common law's knock and announce rule despite the Constitution's not saying a word about it, and in Moskal v. United States, Justice Scalia insisted on giving "falsely made" the meaning it bore as a common law term of art rather than simply reading the words literally.

While Barnett says only that "original meaning follows naturally, though not inevitably, from the commitment [of the Constitution] to writing,"30 I would go further than Barnett: I also said above that I believe originalism follows ex visceribus rei from the written nature of the Constitution. Just as the very process of legislating - arguing over wording - concedes the importance of words, the written nature of the Constitution demands that we take the words seriously. The framers argued over not only the large-scale concepts of the Constitution, but its wording. The ratification debates and both sides - federalists and antifederalists - argued not only over the Constitution as concept but the Constitution as text. They took the constitution's words seriously. We should do the same.

Post facto:
Bolling v. Sharpe reconsidered: precedent, original meaning, and prudence (part 1) (2/21/08)

  1. 1. Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 552 (2007).
  2. 2. Compare, for example, McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 358 (1995) (Thomas, J., concurring) with id. at 371 (Scalia, J., dissenting).
  3. 3. Easterbrook, Foreign Sources & the American Constitution, 30 Harv. J. of L. & P.P. 223, 226 (2006).
  4. 4. Scalia, Common Law Courts in a Civil Law System in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 16 (1997) (Amy Guttman, Ed.).
  5. 5. Cross, The Theory and Practice of Statutory Interpretation in the Supreme Court, text accompanying n.113.
  6. 6. Easterbrook, The Role of Original Intent in Statutory Interpretation, 11 Harv. J.L. & P.P. 59, 60-1 (1988).
  7. 7. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & P.P. 61, 68 (1994); accord Cross, supra, text accompanying nn.124-5 ("The legislature is a 'they' not a 'it.' Aggregation of the intentions of a multimember body is a difficult, if not impossible task").
  8. 8. See Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 71-3.
  9. 9. Cross, supra, text accompanying n. 3.
  10. 10. Easterbrook, The Role of Original Intent, supra, at __.
  12. 12. Easterbrook, The Role of Original Intent, supra, at __ (internal quotation marks omitted).
  13. 13. Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417-19 (1899).
  14. 14. See, e.g., Posner, THE PROBLEMS OF JURISPRUDENCE 262-9(1990).
  15. 15. With that said, it's possible to get sidetracked by jumping the question of "context" to a preposterous level of abstraction. Richard Posner, for example, tries to demonstrate epistemological problems with originalism by unpacking the linguistic assumptions underpinning Article II's requirement that the President be over 35, sugesting that it's not clear unless one grants certain assumptions, such as that age is measured from birth. Posner, supra, at 265-6. He also suggests that the basic rule of statutory interpretation that "the court should start with the words of the statute" is flawed because "[b]efore one can make sense out of the words of a text one needs not only a basic linguistic competence ... but an extensive cultural competence...." Id. at 279 n.23.

    On a philosophical level, this may all be true and profoundly important, but in practical terms it's specious; we aren't engaged in the business of trying to construe the Constitution of Russia without knowledge of that country's history, language or legal context, still less trying to divine the Constitution of the planet Krypton by interpreting the symbols on Superman's ship. The test, surely, isn't whether originalism and textualism still hold good for assessing any texts, but for assessing our Constitution and legal texts, whose surrounding contexts are either known or at least epistemologically knowable. Thus, as I see it, the conditions that would have to prevail for Posner's criticism to hold good simply don't obtain in the business of construing the Constitution and laws of the United States.

    While we're on the subject of common canards against originalism, this seems as good a moment as any to add that it's not useful to get into a meta argument about constitutional legitimacy, because few critics of originalism contend that the Constitution isn't legitimate. Only when debating a critic who believes that the Constitution is invalid in toto do we need to detain ourselves on such points. To accept any of the document as legitimately binding is to accept all of it as legitimately binding.

  16. 16. Smith v. United States, 508 U.S. 223, 228
  17. 17. Id. at 242 (Scalia, J., dissenting) ("[i]n the search for statutory meaning, we give nontechnical words and phrases their ordinary meaning" (emphasis added)).
  18. 18. Neder v. United States, 527 U.S. 1 (1999).
  19. 19. It will sometimes be said that textualists seek "a sort of 'objectified' intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris." Scalia, supra, at 17; see also Nelson, What is Textualism?, 91 Va. L. Rev. 347 (2005); Gold, Absurd Results, Scrivener's Errors, and Statutory Interpretation, 75 U. Cin. L. Rev. 25 (2006).
  20. 20. Another good reason for textualism is that while it is better than any alternative in cabining the discretion of judges, a boon as long as the assumtion that in a democracy the people ought to retain ultimate control over the laws that govern them holds good. But see Cross, supra, text accompanying nn.99-101 (pointing out that "[t]his contention is unproven, however").
  21. 21. Acord Pennsylvania v. Union Gas Co., 491 U.S. 1, 30 (1989) (Scalia, J., concurring in part) ("It is our task, as I see it, not to enter the minds of the Members of Congress - who need have nothing in mind in order for their votes to be both lawful and effective - but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times.")
  22. 22. Morrison v. Olson, 487 U.S. 654, 697 (Scalia, J., dissenting).
  23. 23. Hayek, THE ROAD TO SERFDOM 80 (1994).
  24. 24. Nelson, supra, at __.
  25. 25. Marbury v. Madison, 5 U.S. 137, 176.
  26. 26. Barnett, An Originalism For Non-Originalists, 45 Loy. L. Rev. 611, 617 (1999).
  27. 27. Scalia, supra, at 38.
  28. 28. See Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005). I set aside for this post the enormous subject of stare decisis and its interaction with the task of interpreting and construing canonical texts.
  29. 29. Rapaport, supra.
  30. 30. Barnett, supra, at 630.

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