In a previous post, I raised the first of my two objections to Stephen Griffin's criticism of using original public meaning (OPM) to understand the phrase "executive Power" in the Constitution. Briefly, I argued that Professor Griffin erred in thinking that OPM methodology focuses exclusively on pre-drafting uses of the relevant phrases (in this case, the use of "executive" power by authorities such as Locke, Blackstone and Montesquieu). To the contrary, while pre-constitutional usage is important to OPM, so also is other evidence of public meaning, such as drafting and ratifying history and post-constitutional practice.
I also acknowledged, however, the OPM methodology may (depending on the person) heavily emphasize pre-drafting usage (as my scholarship often has, including with respect to executive power). Here, I will say a little in defense of that approach.
When people use words in a legal documents, or read words in a legal document, they don't read them in isolation. Rather, they read them in the context of previous legal writing, where it has used those words in a particular way. This, after all, is how we give meaning to any set of words — not by thinking about what they ought to mean, but by thinking about what they have meant, as used in familiar writing or speech. So when someone in 1788 read the words "the executive Power" in the proposed Constitution, it's natural that they asked themselves, what did "executive Power" mean when used in familiar legal and political writing of the recent past? That is how we would expect them to understand the communicative content of the proposed Constitution.
Among the most familiar legal/political writings in eighteenth century America were the works of John Locke, Baron Montesquieu and William Blackstone. All of them discussed executive power. And all OPM methodology claims is that the meanings these sources gave "executive power" is an important clue as to the meaning Americans of 1787-89 attached to it.
Professor Griffin objects that these writers long pre-dated the Constitution (Locke writing in the late seventeenth century and Montesquieu and Blackstone in the mid-eighteenth century) and wrote in other countries. Historians of the revolutionary period in America have shown, he says, that substantial changes occurred in Americans' thinking about executive power after the mid-eighteenth century, which OPM theorists ignore.
Of course any appropriate OPM approach must take into consideration such changes, and it's undoubtedly true that Americans in the 1770s and 1780s had evolving views of the best allocation of executive power. (I talk about this in particular in The Constitution's Text in Foreign Affairs, Chapter 6). But here it is important to distinguish (as Professor Griffin does not) between the meaning of "executive power" and the proper allocation of executive power within a government. Political writing of the time defined "executive power" (and legislative power) not in terms of which branch exercised it, but by its nature. How the executive power should be allocated was a separate question, and one sharply debated at the Constitutional Convention and elsewhere. Pure separation of powers theory held that all executive power should be allocated to a single chief magistrate. Other views contended that the powers should be more mixed (as with a chief magistrate exercising a veto over legislation, or a representative assembly having control of some "executive" decisions).
These debates took place against a linguistic backdrop provided by Locke, Blackstone, Montesquieu and similar writers who discussed executive and legislative powers. Although written earlier and in a different country, as Professor Griffin says, these were the main reference books of the founding generation in America. True, the founding generation did not agree in all respects with the allocation of executive power recommended by these writers — most obviously, they thought the chief magistrate should not control war initiation and treaty making. But in discussing these questions, they used the vocabulary of the legal/political writers with which they were familiar. Thus, for example, at the Convention Madison objected that the Constitution should not give "executive" power to the President, at least without limitation, because that would indicate the President had war initiation power. In taking this position, he was using the Blackstone/Montesquieu vocabulary, but objecting to their recommended allocation. (The Constitution dealt with his objection by expressly giving Congress power to declare war, after which Madison went along with the grant of executive power to the President).
To be sure, it's possible that the founding generation rejected the Blackstone/Montesquieu vocabulary as well as some of their proposed allocations. So OPM methodology would require attention to how "executive power" was used in America as well. And as Professor Prakash and I outlined, there is substantial evidence that Americans continued to use it as Blackstone and Montesquieu had (basically, to mean law execution power and foreign affairs power). To pick one example we discussed, the influential 1778 Essex Result, written during the debate over the Massachusetts Constitution, used executive power in this way. But in any event, because Blackstone and Montesquieu were in such wide use in America, and because they gave executive power a particular meaning, I think something of a presumption lies in favor of their definition (though not their allocations), unless it is shown that their meanings were abandoned.
In sum, OPM methodology looks at a wide range of historical evidence to determine the meaning of a phrase such as "executive Power" but it may legitimately emphasize pre-constitutional uses by authoritative works in common circulation. These works provided at least the starting point for the founding generation's vocabulary, so it is appropriate to start with them. Contrary to Professor Griffin, I see nothing wrong with this approach either generally or with regard to executive power. It may be that Professor Griffin is actually critiquing faulty uses of OPM methodology (in which case I agree with him), but the fact that OPM is sometimes done badly does not mean it fails as a methodology.
Posted at 6:48 AM