My last two posts have critically examined Calabresi and Rickert’s argument. Now, for a brief interlude, let me defend them in this and the next post against Jack Balkin’s criticisms.
Balkin criticizes Calabresi and Rickert on the ground that their understanding of the 14th Amendment – either privileges or immunities, or equal protection – as prohibiting caste legislation is not part of the original meaning, but merely an expected application of framers. Balkin writes:
Calabresi and Rickert treat the principles against caste and class legislation as part of the original meaning of the text, even though the principles they discover cannot be found in the text itself and do not follow from its semantic meaning. They seek to show that these principles are part of the original public meaning by looking at initial constructions of the text and statements of principle and purpose offered by framers and adopters. Nevertheless, they insist that they are not interested in original intentions or original understandings for their own sake, but rather are interested in the objective public meaning of the text.
First, original meaning should generally be limited to original semantic meaning, including any generally recognized terms of art. Underlying principles are not part of original semantic meaning. They are constructions. They are ways of fleshing out and implementing the principles that we find in the text. They are principles that we ascribe to the text in order to make sense of it and apply it in practice.
I believe this is mistaken. If one, let’s say, reads the Equal Protection Clause as protecting equality, that is certainly text based. Now, one must understand what equality means. One of the semantic meanings at the time, as illustrated by the public debate that Calabresi and Rickert discuss, would certainly have included a bar on caste legislation. So it would seem that “no caste legislation” is one semantic meaning of equality.
If I understand him correctly, Balkin appears to dispute this on the ground that a prohibition on caste legislation is merely one of the meanings of equality. And, for Balkin, a choice between those meanings is construction, not original meaning:
Second, the statements of principle and purpose that were made contemporaneous with adoption of an amendment are the initial constructions of the amendment; they are a form of original expected applications, and they are not binding on us today.
But from the perspective of original methods originalism, which Calabresi and Rickert say they are employing, this is probably not true. If one has an ambiguous provision, then one of the traditional methods used for resolving that ambiguity is to look to the purposes of a provision – not as revealed in legislative history as a matter of intent, but as inferred from looking at the circumstances of the legislation and the public values of the time. I believe that Calabresi and Rickert can be interpreted as making this argument implicitly.
While Calabresi and Rickert have offered their own response to Balkin, I believe that original methods originalism helps to rebut the criticism that a prohibition on caste legislation is, in their argument, merely a construction or expected application of the Fourteenth Amendment.
Posted at 8:00 AM