Plato relates that, just before Socrates was sentenced to death by an Athenian jury, he told them it was his duty to be like a horse-fly buzzing around a very large, powerful, but somewhat sluggish horse. Athens was much like that horse, said Socrates, and it was his task to keep stinging his fellow citizens, trying to convince them to focus on what was important—virtue, and the perfection of their souls—rather than on mundane daily routines. I’m no Socrates, and I hope I won’t be given a cup of hemlock, but it seems to be my job to periodically remind originalists that a methodology they embrace leads to an infinite regress, which is not a good thing.
A recent classic example is Robert Natelson’s article, entitled “Understanding the Constitution: How States May Respond to Illegal Immigration,” which Andrew Hyman highlighted in a post. The article examines how the Constitution’s four provisions containing the words “invasion” or “invaded” affect any rights individual States might have to deal with illegal immigrants that the federal government has failed to remove from the country. My concern here, however, is with methodology, not with any particular legal issue.
Mr. Natelson writes: “Does the peaceful, but illegal, flood of immigrants across the border qualify as an ‘invasion’ as the Constitution uses the term? … The first stop on the path to learning what the Constitution means by ‘invaded’ and ‘invasion’ is to look up those words in Founding-era (i.e., 18th Century) dictionaries.” The problem here is that the first stop is doomed to be the last, and indeed only, stop.
If one reads the four constitutional provisions Mr. Natelson is studying, one concludes that the words “invaded” and “invasion” are used in contexts that are entirely familiar to us today—we would find nothing puzzling about the use of those terms in those provisions. Yet, Mr. Natelson immediately dives into 18th century dictionaries—thirteen of them, in fact. Why? The only possible answer is that, as an originalist, he believes (as did Justice Scalia; see, D.C. v. Heller) that, because the Constitution is antique, we should entertain the rebuttable presumption that all the operative words in the Constitution might have time-dated meanings that differ from their current meanings. So, we immediately open 18th century dictionaries to see if we can unearth some interesting time-dated meanings.
The problem with this approach, as I’ve noted before on this blog, is that it gives rise to what I’ve called 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.
Simply put, if you’re going to entertain the presumption referred to in the Paradox, you’ve launched yourself into an infinite regress. Having determined the 18th century definition of “invasion,” you’d have to determine the 18th century definition of the words in the definition of “invasion,” and then, having determined the definition of those words, you’d have to …, ad infinitum.
Mr. Natelson writes, e.g., that one of the old dictionaries defines “invade” as “to enter in a hostile manner.” He also checked old definitions of “hostile,” and it “usually meant only ‘without permission’.” And he concludes that “'invasion’ covered much more than military assault.” (A pest control company told me they would guarantee my house against invasion by ants, roaches, stink bugs, etc. for one full year after treatment. So, not much has changed.) But how can we be sure we understand the time-dated meaning of “permission”? Did Mr. Natelson look into old dictionaries for the meaning of that word? And what about “without”? Might that have a time-dated meaning as well?
There’s more. Mr. Natelson says that, after a review of old dictionaries, “[t]he next stop on the journey consisted of the debates over the Constitution itself.” He cites Madison’s Federalist No. 41, which refers to “licencious [sic] adventurers … daring and sudden invaders.” Mr. Natelson takes this to imply that “invaders” were not limited by definition to “formal military operations.” I have no quarrel with that conclusion. But Mr. Natelson should have a quarrel, given his favored methodology, unless he first checked for time-dated meanings of “licencious,” “adventurers,” “daring,” and “sudden.” After all, Federalist No. 41 was written before the Constitution was adopted—it’s older.
In my most recent blog on the Paradox, I proposed entertaining the rebuttable presumption that the words and phrases in the Constitution had the same meanings in 1789 as they have today, with the understanding that the presumption would be rebutted (a) where a word or phrase is so archaic and obsolete that we have no clear idea what it means, e.g., “letters of marque and reprisal,” or (b) where a word or phrase seems to contradict our own understanding of its meaning, as does the phrase “high … misdemeanors” in Article II, Section 4. In contrast, if one insists on embracing the presumption referred to in the Paradox, an infinite regress awaits.
Posted at 8:54 AM