Mike Ramsey asks an interesting question about Curtis Bradley’s new paper:
if post-ratification political actors in fact embraced intuition and consequentialist considerations rather than text and original understanding, isn't that a reason for originalists to sharply discount post-ratification practice? Post-ratification practice is relevant to original meaning only if post-ratification actors were trying to discern and be guided by original meaning. If they weren't, why do we, as originalist interpreters, care what they did?
This is an interesting question. Perhaps different versions of originalism will answer it differently. In my view, there was a legal rule that is of relevance here. That rule – which I call the two canons approach – held that a contemporaneous exposition of a law that was consistently followed was entitled to some weight as to its interpretation of the law. Thus, one might conclude that this post ratification practice informs the original meaning.
But what if that post ratification practice did not purport to follow the meaning of the law? I have not encountered any discussion of this issue. There are several possibilities.
- It does not matter that the practice did not purport to follow the meaning of the law. That practice is still entitled to weight.
- It does matter. That practice is not entitled to weight under the two canons approach because that approach requires that the interpretation attempt to discern the meaning of the law.
- It does matter. That practice is entitled to consideration under the two canons approach. But it is not likely to prevail because an interpretation that does not attempt to discern the meaning of the law is a weak one and therefore does not get much weight.
The second and third possibilities are quite similar. Under the second, the practice does not invoke the two canons approach. Under the third, the practice does invoke it but probably does not prevail because it is so weak.
If forced to choose at this point, without doing any further research, I would lean towards the second possibility.
Posted at 8:00 AM