Matthew Ing poses this important question:
I have a question regarding the proper methodology for original-public meaning originalism. … [T]he framers of the Constitution (and its amendments) did not always agree on the meaning of its provisions. For example, when the Citizenship Clause of the Fourteenth Amendment was debated in Congress, supporters and opponents disagreed about whether the Clause’s language would grant birthright citizenship to Native Americans. Supporters argued that the Clause’s qualifier, “subject to the jurisdiction thereof,” would exclude Indians from citizenship; while opponents argued for a broader understanding of “jurisdiction,” under which the Clause would grant Indians citizenship.
My question is, for purposes of original-meaning analysis, whose meaning (supporters’ or opponents’) should we accept? Has there been any prior scholarship on, or discussion of, this question? I’d like to think that there would be; but I’m not familiar enough with the literature to think of any. Or maybe I’m missing something?
Responses are welcome. My general thoughts are:
I think to some extent the two cancel each other out (assuming both sides are equally credible — that is, the speakers seem to being making genuine textual arguments, one side is not simply a couple of outliers, etc.). I don't think that means the text's meaning is undiscoverable — other tools can be used to find meaning. And opponents or proponents of a provision may act opportunistically to claim a text has a meaning that is, in an objective sense, implausible. Further, it's important to look at what the two sides had in common — that is, what meanings did they both assume or accept in reaching their different conclusions.
At the same time, the question highlights a pitfall for originalist scholarship: taking a single statement of a provision's meaning as conclusive without realizing that it might not (perhaps clearly did not) represent a consensus.
For what they are worth, here are a couple of examples addressing this problem from my own work. Saikrishna Prakash & I encounter it in our article The Executive Power in Foreign Affairs, 111 Yale L.J. 231, at pp 334-339. There we confronted the famous 1793 dispute between Hamilton (as Pacificus) and Madison (as Helvidius) on the question of the President's executive power to declare neutrality. We side with Hamilton, finding the President has the power as part of the Article II, Section 1, "executive Power" with which he is vested. As we put it there, "strongly disagree[ing]" with the proposition that "the Framers' inconsistent views cannot be much of a guide to proper interpretation":
First, although it is true that Madison, and to some extent Jefferson, disputed parts of Hamilton's assertions [as Pacificus], the scope of the disagreement was much narrower than is often supposed. As set forth below, much of the debate turned on the (fairly academic) question of whether the President could by his declaration bind Congress's subsequent ability to decide to enter the war. This core aspect of the debate did not contest the essential proposition that the Vesting Clause gave the President all the foreign affairs power not given elsewhere … Second, to the extent Madison disputed the theory of residual executive powers, his thinking is too unsystematic to provide a dependable refutation.
On the latter point, we go on to examine Madison's position and conclude "[i]n the heat of argument … Madison made what we regard as an indefensible claim … [that all the President's acts], 'properly executive, must presuppose the existence of the laws to be executed.'" As we explain, "Madison's position is riddled with difficulties," including (a) that Madison himself had acknowledged that the President had independent power over diplomatic officers; (b) that "essentially everyone at the time" thought the President had independent power over communication with foreign governments; and (c) "Madison failed to recognize that some of the foreign affairs powers he would deny the President would be difficult to locate in Congress," including the power to communicate with foreign governments. As a result, we concluded:
We believe Madison had not carefully considered the implications of his claim. In context, that is not surprising. It was not the central point of the Helvidius essays, which concerned the power of the President to interpret treaty obligations relating to war. … [Madison's] wider claim that the President exercises no power other than in pursuant of a law or an Article II, Section 2 or 3 power is demonstrably wrong in practice and incoherent in theory. We think it should be regarded as an overstatement in support of a cause, not as a systematic interpretation worked out after careful reflection.
It is important to add that our rejection of Madison comes in the context of a much longer article demonstrating substantial textual and historical support for Hamilton's position; it is not simply that we are picking one over the other. Standing alone, they might well cancel each other.
I faced a similar problem in Missouri v. Holland and Historical Textualism, 73 Missouri L. Rev. 969, 992-94, in which I rejected the Republicans' narrow interpretation of the treatymaking clause — made in 1795-96 in the context of opposition to the Jay Treaty — in favor of the broader Federalist view, basically on four grounds:
First, [the Republican arguments] are only half of an intensely partisan debate… Second, they are only weakly linked to any plausible reading of the [Constitution's] text. [Third,] Republicans ended up claiming that treaties could address neither matters committed to Congress nor matters left to the states — which would almost wholly disable the treaty power. Even at the time, it must have been hard to escape the feeling that political opposition to the treaty was driving a hunt for constitutional arguments. Fourth, the Republicans' arguments were not persuasive at the time [particularly in the sense that the Republicans largely abandoned them in the face of Federalist counterattacks].
Again, it's important to emphasize that, as in The Executive Power over Foreign Affairs, this article makes its case largely on the basis of other evidence and then finds post-ratification disagreement not to be a reason to reject its conclusions.
While not meaning to be comprehensive, these examples suggest one strategy — namely, assessing which of the competing positions is most plausible based on context and other evidence of meaning. They emphatically do not, however, attempt to establish constitutional meaning solely on the basis of invoking one side of a founding-era debate.
Posted at 6:28 AM