Prof. Rappaport’s recent post broadly defines “originalism” in accordance with Prof. Larry Solum’s view that that theory encompasses two premises: the fixation thesis and the constraint principle. In this note, I want to focus on the fixation thesis. (A more detailed discussion is available in my paper on SSRN.)
In Prof. Solum’s words, the fixation thesis holds that “the linguistic meaning of the constitutional text was fixed at the time each provision was framed and ratified.” Prof. Rappaport takes this to mean that “the meaning of the text is the meaning it had when it was enacted—its original meaning.” These formulations seem clear and straightforward, but experience demonstrates that conscientious originalists can apply the fixation thesis and produce flagrantly erroneous results. Its apparent clarity and simplicity can be illusory.
Consider the late Justice Antonin Scalia’s well-known struggle with the question whether the 8th Amendment prohibition against “cruel and unusual punishments” bars flogging as a punishment today. In an interview in 2013, Justice Scalia said that, although “a long time ago” he was a fainthearted originalist who would have found the re-imposition of flogging to be unconstitutional, in 2013 he would not so find. “[I]f a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional.”
The notion that a re-imposition of flogging today would pass muster under the 8th Amendment is obviously mistaken. Flogging was “cruel” in the 18th century and would be “cruel” today, as defined, e.g., in the O.E.D.: “Disposed to inflict suffering[.]” (Suffering was inflicted, of course, as a means to the commendable ends of deterring the criminal from repeating his crimes and others from replicating them.) But in the 21st century, no reasonable person could say that flogging would not be “unusual” in the U.S. Because the 8th Amendment bars punishments that are both cruel and unusual, it would bar flogging today.
Justice Scalia’s mistake stems from confusing the 8th Amendment prohibition of “cruel and unusual punishments” with a prohibition of punishments that are (a) cruel and (b) were unusual in 1791, when the amendment was adopted. Indeed, one might think that, having accepted the fixation thesis, we should understand the 8th Amendment as prohibiting cruel punishments that were unusual in 1791. That is incorrect, for the following reason.
Consider two versions of the amendment:
1. “…, nor cruel and unusual punishments inflicted.” (Actual)
2. “…, nor punishments inflicted that are cruel and also unusual as at the time of adoption of this amendment.” (Hypothetical)
In 1791, the framers of the 8th Amend would have understood the clear difference between these two versions precisely as we understand that difference today; none of the words or phrases in these two versions have changed meaning in the 228-year interval. And, because they would have understood the difference just as we do, we may conclude that, in adopting version 1, they declined to adopt version 2.
A second problematic example is Justice Scalia’s dissent in Obergefell v. Hodges. In rejecting (in my opinion, correctly) the view that the 14th Amendment requires States to accept same-sex marriages, he wrote:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the people who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
This is, I submit, an entirely unsatisfactory explication of “the meaning” of either Due Process or Equal Protection, or both.
It is flatly misleading to say that in 1868 “no one doubted” the constitutionality of limiting marriage to opposite-sex couples. In 1868, no one doubted that marriage should be limited to opposite-sex couples, but equally no one doubted that marriage should not be so limited, because no one had ever considered the question at all. [Compare Justice Scalia’s majority opinion in Kyllo v. U.S.: Use on a public street of a thermal-imaging device aimed at a private house to detect heat anomalies evidencing cultivation of marijuana in the home was an unreasonable search under the 4th Amendment. Certainly no one in 1791 considered that using that device would constitute an unreasonable search, because no one at that time had ever conceived of such a device. But that empty truism did not lead Justice Scalia to find no constitutional violation.]
Justice Scalia’s misadventures (which are no reflection on Profs. Rappaport and Solum) do teach an important lesson. The meaning of a phrase—“cruel and unusual punishments,” or “the equal protection of the laws,” or “unreasonable searches and seizures”—cannot be determined by identifying the things to which the phrase did or did not refer at the time it was made part of the Constitution. Flogging was not a cruel and unusual punishment in 1791, but it would be so today. In 1868, the equal protection of the laws was not understood either to compel the States to recognize or permit the States to reject same-sex marriages, because at that time no one had even considered the issue. In 1791, no one had an opinion as to whether remote thermal imaging could constitute an unreasonable search.
The meaning of a word or phrase is not determined by its referents at any particular moment; the definition of a word is to be found in a dictionary, and the meaning of a phrase can be discovered by starting with the definitions of the constituent words, and then researching idiomatic meanings. Constitutional history is of course important, but if we had a time machine to transport us back to 1791, we would certainly find convicts in stocks being flogged. That would not make flogging constitutional today.
MICHAEL RAMSEY adds: I completely agree on the Eighth Amendment example, and in fact I used this same example in a recent talk on originalism. When originalists say that sometimes facts change, and that can change the way fixed meanings are applied, this is an example of what they have in mind. But the Eighth Amendment is a bit unusual (sorry) in this respect. The example does not generalize to the proposition that applications change whenever facts (or our understanding of facts) changes.
For example, the confrontation clause says that a criminal defendant has the right to confront witnesses against him. We now understand — in a way the framers of the Amendment did not — that confrontation of particularly vulnerable or impressionable witnesses can interfere with the truth-seeking process. But that would not suggest (to originalists) that courts should read an exception into the confrontation clause. We may now understand that an absolute confrontation clause is a bad idea, but that does not change the fixed meaning of the clause.
Posted at 9:05 AM