Prof. Michael L. Smith, in an article entitled “Is Originalism Bullshit?”, adverts to the following assertion made by Prof. Rob Natelson:
Once you are conversant with 18th century usage, you know which common words have changed meaning and which have not. The word "permission," for example, has not changed meaning. But …, one of the 18th century definitions of "hostile" was not commonly used today. It was necessary to consult a dictionary only to confirm and document this, because a law review editor wasn't going to just take my word for it.
Prof. Smith (at p. 47) cites this as one of several statements by originalists that “should raise alarms for those concerned with bullshit.”
Our fellow blogger, Mr. Andrew Hyman, has come to Prof. Natelson’s defense, stating:
Natelson’s self-described procedure was applied to “common” words that he had already encountered in writings from the eighteenth century, and if instead obscure words had been involved, which Natelson had not previously encountered, then doubtless he would have consulted the old dictionaries before forming any notions about what he would find in those old dictionaries.
Note that Natelson draws a distinction between “common words” (whatever that phrase means) that have changed meaning since the 18th century and those that have not, while Hyman speaks of “common” and “obscure” words, which might be a different distinction than Natelson’s.
In any case, the Natelson assertion criticized by Smith and defended by Hyman was made in response to a post of mine, in which I contended that the original-public-meaning originalism embraced by Natelson, and also by the late Justice Antonin Scalia, generates what I call the Paradox of Originalism, to wit:
If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.
A few moments of thought will confirm that the Paradox is self-evidently correct.
In light of the foregoing, I would make two points.
First, Prof. Natelson states that, because he is “conversant with 18th century usage,” he “know(s) which common words have changed meaning and which have not.” But, regarding every common word Natelson encountered in 18th century usage—whether it was a word in the Constitution, or in Dr. Johnson’s dictionary, or in any other 18th century text—there was a first time he encountered that word. How would he know, when he encountered any such word for the first time, whether it had changed meaning or not?
A conscientious and consistent original-public-meaning originalist would have to consult with 18th century dictionaries the first time he or she encountered any common (or uncommon) word. If Natelson did not consult with 18th century dictionaries the first time he encountered any common word, the reason could not be that he was “conversant” with that word in 18th century usage; it could only be because he was a haphazardly inconsistent originalist—not a true originalist at all. But, if he did consult with 18th century dictionaries, how would he determine whether words and/or phrases in the definitions provided by those dictionaries had changed meanings or not? An infinite regress has commenced, and as a matter of logic it can neither be denied nor escaped.
My second point is this. Mr. Hyman asserts: “In many ways, the English language of the eighteenth century is a foreign language as compared to modern English.” I find this astounding. Jane Austen completed the first draft of “Pride and Prejudice” during the very same time-period when the Constitution was being drafted and adopted (although the novel was not published in final form until 1813). Has anyone fluent in modern English ever thought of “Pride and Prejudice” as being written in a language that is, in many ways, a foreign language as compared to modern English? Can anyone specify even one way in which the language of “Pride and Prejudice” differs from modern English?
Here is something written in a foreign language: Proprium humani ingenii est odisse quem laeseris. It’s Latin written by Tacitus. In English, it means: “It is innate to human nature to hate those whom you have injured.” I submit that, if one compares that Latin sentence to any sentence in the Constitution, the language of the Constitution cannot meaningfully be likened “in many ways” to Latin or to any other foreign language.
In summary, original-public-meaning originalism will never evade the Paradox of Originalism. But the Paradox does not establish that original-public-meaning originalism leads to falsehoods, or logical inconsistencies, or incorrect legal conclusions; nor does it establish that originalism is “bullshit.” The Paradox establishes only that original-public-meaning originalism, consistently applied, always generates an infinite regress. That is to say, the methodology leads to nowhere in particular, because the methodology never arrives at an endpoint. If there are legal scholars who are happy to embrace a methodology which, if applied consistently, generates an infinite regress, then, as the framers of the Constitution used to say, de gustibus non disputandum est.
ANDREW HYMAN comments: I previously wrote that, “In many ways, the English language of the eighteenth century is a foreign language as compared to modern English.” Mr. Weisberg responds by saying “I find this astounding.” Well, it may be astounding but it’s true. Perhaps a couple quotes from James Madison will clarify. Madison wrote on June 25, 1814:
If the meaning of the text be sought in the changeable meaning of the words, composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law, if all its ancient phraseology were to be taken in the modern sense. And that the language of our constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased inquiries into the history of its origin and adoption.
Madison also wrote, on March 10, 1826:
In the exposition of laws, and even of Constitutions, how many important errors may be produced by mere innovations in the use of words and phrases, if not controllable by a recurrence to the original, and authentic meaning attached to them.
The language of eighteenth century British common law is not the exact same as the language of the common man living today in the United States. Translating the former into the latter is not so difficult as translating Latin to English, but the concept of translating from one language or dialect to another is similar. To do translation well, one needs dictionaries, immersion, experience, and textual context. In contrast, Madison mentioned (on March 1, 1833) “the case of the Frenchman, who finding in the Dictionary that to pickle meant to preserve, took leave of his friends with a God pickle you.”
DAVID WEISBERG responds:
Neither quotation from Madison characterizes constitutional interpretation as akin to translating a foreign language into English. Rather, Madison very correctly notes that "all living languages" change. So the English language changes over time, and every other living language changes over time–that fact has nothing to do with translating from one language into another. Again, in what way is "Pride and Prejudice" very much like a text written in a foreign language? Moreover, nothing Madison asserts in any way contradicts the Paradox of Originalism; if one assumes that, simply due to the passage of time, all the words and phrases in the Constitution might have time-dated original meanings that differ from current meanings, an infinite regress is generated.
Posted at 6:28 AM