I’d like to comment on Prof. Ramsey’s recent post, “Katie Eyer: Disentangling Textualism and Originalism”.
Prof. Eyer says the difference between textualism and originalism is this: “Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. … [T]hey are different inquiries, and command fidelity to different ultimate guiding principles.” Prof. Larry Solum responds: “‘Public Meaning Originalism’ as articulated by theorists is almost always understood as committed to the proposition that the communicative content of constitutional text ought to constrain constitutional practice. … Given this understanding, Public Meaning Originalism is a form of textualism.” Prof. Ramsey by and large agrees with Prof. Solum, asserting that: “An original meaning originalist is faithful to the text as informed by the history, but ultimately is faithful to the text.”
These formulations all look past the elephant in the room; they overlook a fatal flaw in the methodology the late Justice Antonin Scalia relied on in applying Public Meaning Originalism. He said in 2013 that his opinion for the majority in D.C. v. Heller, 554 U.S. 570 (2008), was his “legacy opinion insofar as it is the best example of the technique of constitutional interpretation which I favor … I think it’s the most complete originalist opinion that I’ve ever written.” (I’ve argued here that both Heller and its progeny, McDonald v. Chicago, 561 U.S. 742 (2010), reach wrong results, but for reasons unrelated to the fatal flaw described below.)
Scalia’s Public Meaning Originalism embraced the rebuttable presumption that, because of its antiquity, every word or phrase in the Constitution might have a time-dated original meaning that differs materially from its current meaning. So, e.g., in Heller, in examining the word meaning of “Arms” in the 2nd Amendment (at 581), Scalia immediately consults founding-era dictionaries (Dr. Johnson, Noah Webster, Timothy Cunningham) and other founding-era documents to determine that meaning. Precisely the same methodology is used regarding the phrases “keep arms” (at 582), “bear arms” (at 584), “well regulated Militia” (at 595), and “security of a free State” (at 597). There would be no reason to employ such a methodology unless one believes that all words and phrases in the Constitution might have time-dated meanings that can be revealed only by studying literary materials roughly contemporaneous with the Constitution.
What Justice Scalia apparently never realized is that, if one must resort to founding-era dictionaries and other literary material to ascertain possible time-dated meanings in the Constitution, then the meaning of those founding-era dictionaries and other literary material might similarly be time-dated, necessitating a further inquiry into the meaning of the words and phrases in those secondary founding-era documents. And, etc. We thus find ourselves in an infinite regress—a bad place to be. This infinite regress arises from what I have called the Paradox of Originalism, fully discussed here.
To avoid an infinite regress, one must rebuttably presume that the words and phrases in the Constitution have current meanings that are the same as when the Constitution was ratified. That presumption can of course be rebutted by context or by idiomatic or circumlocutory expressions (e.g., “Person held to Service or Labour” was a circumlocutory reference to a slave), but we must begin with that presumption. If one rejects Justice Scalia’s presumption that the words and phrases in the Constitution might all have time-dated meanings that differ from their current meanings, originalism vanishes, abandoning the field to textualism.
This brings us to the use of history in interpreting the text of the Constitution. In his dissent in Obergefell v. Hodges, 576 US 644, (2015), Justice Scalia wrote:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. (576 US at 715-16, footnote omitted.)
What is significant here is that Justice Scalia has to be very careful to tell exactly one half of the historical truth. It is true that, in 1868, no one doubted the constitutionality of limiting marriage to one man and one woman. But it is equally true that, in 1868, no one affirmed the constitutionality of limiting marriage to one man and one woman. The whole truth is that, in 1868, no one gave any thought to the constitutionality or unconstitutionality of prohibiting same-sex marriage, because at that time no one was giving any serious thought at all to same-sex marriage.
In the first paragraph of his Obergefell dissent, Justice Scalia wrote this:
[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension … of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice … robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. (576 US at 713.)
I believe Obergefell was wrongly decided, and I agree wholeheartedly with the more general sentiment expressed in Scalia’s dissent. But I also believe that Public Meaning Originalism, at least as practiced by the late Justice Scalia, is a fatally flawed interpretive tool.
Posted at 6:05 AM