As Justia, Michael Dorf: Originalism, the Contracts Clause, and the Sveen Case. It begins:
On Monday evening, I had the pleasure to debate Georgetown Law Professor Randy Barnett on the question whether “the U.S. Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text.” Professor Barnett said yes; I said no. Actually, that’s not quite right. At least as I experienced the debate, Professor Barnett said “yes, but,” whereas I said “so what?”
Allow me to explain with an extraordinarily abbreviated history of the last century of American constitutional jurisprudence, followed by an illustration drawn from a case the Supreme Court decided this week.
Here is the key part of that history:
Bork’s answer [to problems of finding the framers' intent] was of a piece with a general shift that has been ongoing now for three decades and was evident in my debate with Professor Barnett: Self-styled originalists abandoned original intent in favor of what came to be known as “original public meaning.” In this view, even if the vast majority of people who proposed and ratified the Fourteenth Amendment did not intend or expect that it would invalidate de jure racial segregation, that result is required by the meaning of the amendment’s language.
Yet once one allows that a constitutional provision can have profoundly unexpected implications, it is hard to see how originalism differs from its supposed rival, living Constitutionalism. And indeed, not long ago Yale Law Professor Jack Balkin wrote a book provocatively titled Living Originalism, in which he argued—without intended irony—that public-meaning originalism and living Constitutionalism are merely opposite sides of the same coin. If so, however, then originalism would seem to invite the old critique of judicial activism.
To be sure, some originalists have tried to keep the likes of Professor Balkin out of their club, but it is hardly clear that their own versions of originalism are any more determinate than his.
Consider Professor Barnett. He is a libertarian who generally (albeit not always) sees libertarianism in the original meaning of the Constitution. Yet that looks more like projection than history or lexicography. As I pointed out in our debate, and as scholars have explored in depth, the original meaning of freedom of speech (in the First Amendment) and the limitations on the power of eminent domain (in the Fifth Amendment) were much narrower than their contemporary meanings, because libertarianism as we know it today developed after the Founding period, which was better characterized by what we would now call civic republicanism. And if one wants to say that the People who ratified the Constitution and Bill of Rights only gave effect to very broad principles, which can be given libertarian content regardless of the framers’ and ratifiers’ subjective intentions and expectations, then one has joined Balkin in admitting that the originalism emperor has no clothes.
And here is the alleged bait and switch:
As I wrote in a 2012 essay in the Harvard Law Review, Professor Barnett and like-minded scholars “make originalism respectable by answering objections leveled at ‘expectations-based originalism’—but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.” Justice Gorsuch’s solo dissent from Monday’s ruling in Sveen v. Melin provides a brand new illustration of this kind of bait and switch.
…
In his dissent, Justice Gorsuch took issue with the substantial-impairment test [in contracts clause analysis] on the ground that it “seems hard to square with the Constitution’s original public meaning.” Yet despite invoking original public meaning, his historical analysis relied on the old discredited form of intentions-and-expectations originalism. Justice Gorsuch cited a statement made by James Madison at the Constitutional Convention as well as the response Madison gave in public debate to the charge by Antifederalists that the Contracts Clause would forbid valuable legislation; on the contrary, Madison claimed, it would give valuable protection to liberty and property. Notably, Justice Gorsuch did not say anything specifically about what any of the words of the Contracts Clause meant in 1789; his argument was entirely about what the framers and ratifiers intended and expected.
And, after noting that Justice Gorsuch also made a textual argument, a further key point:
Whatever the merits of the textual argument offered by Justice Gorsuch, note, crucially, that nothing about it relies on any distinctively original meaning. It is as true today as it was in 1789 that the phrase “any . . . law impairing the obligation of contracts” by its terms appears to apply to all impairments rather than only to substantial impairments. Justice Gorsuch might have as accurately said that the substantial-impairment test is hard to square with the text of the Contracts Clause as with its original public meaning.
That elision points to one further bit of legerdemain employed by originalists. There has been virtually no relevant “semantic drift”—that is, changes in the meaning of words and phrases—since the Founding. Reading The Federalist Papers or the Constitution is nothing like reading Chaucer’s Canterbury Tales in the original Middle English. Yet self-styled originalists often write as though a vast linguistic gulf separates us from the Founding generation.
If there are virtually no practical differences between the Constitution’s original public meaning and its contemporary meaning, why bother resisting original public meaning? Once again, we should do so to prevent the originalist bait and switch. When originalists with power—which is to say originalist judges and justices—go looking for the original public meaning of the Constitution, they typically retrieve the framers’ and ratifiers’ intentions and expectations.
(Thanks to Mark Pulliam for the pointer).
As usual, Professor Dorf offers important and insightful criticism. Much could be said in response. I'll note briefly where I think the most promising responses might go.
On the first point, I would say that the difference between original intent originalism and original meaning originalism is not as great as he supposes (and, in fairness, it may be true that some originalist theorists have oversold the difference). The central difference is the ultimate objective: to find the subjective intent versus to find the objective meaning. But changing the ultimate objective from the former to the latter (as Justice Scalia encouraged in his famous speech on the matter) does not mean that intent (or expectations) become irrelevant. Where the text is ambiguous, it's helpful to know what was generally on the minds of people of the time — the framers and ratifiers, but also other opinion leaders. For this reason, almost universally in originalist scholarship addressed to a particular clause or issue, there is significant exploration of founding-ear materials. (This includes Professor Barnett's scholarship). That's because context is important to meaning. Very few originalists think that one can find meaning without context, and the inquiry into founding-era commentary is a way (though not the only way) to provide context. But the intent (or rather the objectives and expectations) one finds in this context is neither decisive nor essential, because the ultimate inquiry is the meaning of the text.
On the second point, I think there is more linguistic drift than Professor Dorf acknowledges, although surely it is not as great as he characterizes originalists as believing. Typically (though not always) the issue is ambiguity arising from context: a word may have different meanings depending on its context, so the issue is not so much that an entirely new meaning has arising as it is that one must choose between meanings. For example, in the Sveen case the issue is whether "any" in the contacts clause is to be read literally to mean any impairment or more loosely to mean any substantial impairment. In thinking about this question, it's relevant (as Justice Gorsuch said) that key framers seemed to think that the protection was a very important one. The context is that people in the founding era were very worried about state impairments of contracts. Thus it's plausible to believe that the clause was understood as having its literal meaning.
I agree that there's not much daylight between the original meaning and the modern meaning in this example. But one can imagine others where the ambiguity is much greater — for example, the ambiguity in "declare war" or (to use an example recently discussed on this blog) "faithfully executed." Even though the meanings of the individual words have not changed much (in a Chaucer-to-today sense), the clauses are ambiguous without attention to their context, and part of that context is the way the framers and ratifiers appeared to understand them.
Posted at 6:17 AM