At Balkinization, Stephen Griffin has begun a series of thoughtful posts on New Originalism. Here is the introduction to the first post:
In this and the next few posts, I hope to set out my approach to the theory of constitutional change and its implications for current debates on the new originalism and the viability of the idea of the “living Constitution.” I am moved to do so by several considerations (including that I am planning a book on the subject!). The other main consideration is that I feel I should respond to scholars who have themselves responded to my prior work, especially my article “Rebooting Originalism.” This article was was critical of the new originalism, but was published before all of its features became fully apparent (at least to me). So part of this is by way of catching up with the new originalism and updating my critique. Lately it seems my name has come up a bit more than usual, especially in a recent interesting exchange between Lawrence Solum and Saul Cornell on the value of intellectual history and in Solum’s article on constitutional construction in a highly useful symposium in the Fordham Law Review. Solum has been wonderful about mentioning my work, particularly in a Clough Center symposium at Boston College just a few months ago. So time to return the favor, catch up on Solum’s crucially important and leading work, and set out my own distinctive position in a systematic way. In proceeding with reference to Solum’s work, by the way, I am not trying to slight or ignore other significant work on original public meaning, including Jack’s own seminal Living Originalism. But I feel Solum is pushing me in particular to clarify my position. So in what follows, I will be arranging my argument around his recent work.
Another reason is that I want to justify further some just-published, fairly harsh remarks about original public meaning theory in my contribution “The Executive Power” to the Oxford Handbook of the U.S. Constitution. With respect to pro-executive power scholarship since the 1990s, heavily reliant on original public meaning theory, I wrote that it “involves a deliberately selective approach to the use of historical evidence. It is not a historicist theory and so does not involve the appropriate consideration of historical context. The highly questionable consequence of original public meaning methodology is to create an alternate version of eighteenth-century history seemingly designed to bypass the most insightful and learned scholarship on the Founding Period.” (citing in particular the work of Gordon Wood and Jack Rakove) The distinction I draw here between interpretive works that are “historicist” as opposed to “originalist” (using original public meaning theory) is certainly not obvious. I want to say more about this. Relatedly, it has become more evident to me that many scholars don’t see the lay of the land the way I do, specifically with respect to the importance of theories of informal constitutional change to other issues in constitutional theory, including issues of interpretation.
Here are the posts so far:
I have argued that the original expected application of the adopters of the Constitution and its subsequent amendments is not binding on later generations. The original expected application consists of how the adopting generation would have understood and applied the provisions of the Constitution,
in addition to the way that they would have articulated and applied the relevant principles and purposes behind the Constitution. Thus, the original expected application is not simply a set of concrete results; it also includes the ways that the adopters would have articulated and applied the purposes and principles they believed were behind the text of the Constitution.
As a result, I have a "thin" theory of original public meaning. The original public meaning consists of the semantic meanings of text, generally accepted terms of art, and any inferences from background context necessary to understand the text. (By contrast, a "thick" theory of original public meaning might count as part of original public meaning the way that the public (or well-trained lawyers) understood and applied the Constitution's provisions. The thicker one's conception of original public meaning, the more original expected applications tend to control the implementation of the Constitution in the present. In the limiting case, best represented by the original methods originalism of John McGinnis and Michael Rappaport, there is little or no room for construction at all; everything can and should be done through fidelity to original public meaning.)
People often confuse two very different positions about the role of original expected applications in the New Originalism.
The first position says that because these materials are not binding on future generations, interpreters may and should ignore them. These views have little or no bearing on the best construction of the Constitution today. This gives later generations complete freedom to construct the Constitution in any way they would like.
The second position is that although these materials are not binding on future generations, they are an important resource for constitutional construction. These materials are the beginning of the constitutional tradition, and therefore people today should invoke and employ them as aspects of that tradition.
I do not accept the first position, and I do not believe that most people who call themselves New Originalists do either.
I do accept the second position.
Posted at 6:26 AM