It's important to distinguish among different originalist sources of potentially authoritative interpretations of the constitution, namely the framers, the ratifiers, and the people.
My view is that the framers' understandings of a constitutional provision – considered either individually or, somehow, collectively – should not be regarded as inherently authoritative. Why should an article by Publius be afforded any more legal weight than one by Posner? Each is the product of a private citizen in a private capacity. Of course, Publius (all three of him) acted in a public capacity, but it's still problematic to extrapolate his intentions from his writings and to give those intentions special authority. A judge must read, say, the Federalist Papers as either the law review of their day or as a window into the minds of the public Publius. The former reading only deserves as much weight as a (really good) law review article, and the second reading has two difficulties of its own. First, the Federalist Papers are probably not the best, and are certainly not the only, evidence of Publius's intentions. A judge who wants to figure out what Madison, Hamilton, and Jay had in mind when they drafted a clause would be advised also to consult sources such as records of convention debates and personal correspondence. (But how often do judges purporting to uphold framers' – or even a framer's – intent actually play historian?) Second, framers' intentions in a public capacity are still private. Analogously, if a state legislature had Judge Posner draft its antitrust statute, that state's high court shouldn't resolve antitrust cases by asking "what would Posner do?" The people, at least in theory, consented to the governors who appointed the court and to the legislature that confirmed the appointments and passed the law; they didn't consent to what Posner, however wise, thinks the law means.
I've held off on mentioning the difficulty of ascribing intentions to a group because it also applies to the second historical source in question: the state ratifying conventions. The important difference is that these conventions, unlike the framers, legitimated the constitution. They spoke for "we the people" and gave the constitution the force of supreme law. Thus it seems that their understandings of the constitution actually carry some authority. But how should these understandings be conceptualized? The main problem is that different delegates had different reasons for supporting, and different interpretations of, the same provisions. And the ratifying conventions didn't publish statements of understanding representing the views of at least a majority of delegates. In short, ratifiers' intent seems to have the same pros and cons as legislative intent, plus the absence of official ratification history. Notably, the Federalist Papers, given their influence in the debates over ratification, are quite relevant to inferring ratifiers’ readings of the constitution. What I argue against above are the leaps that some people make, for example, from what Madison thought a provision meant to how the provision should be interpreted. Even worse are the naked assertions we sometimes encounter along the lines of "The framers would be shocked to learn that the First Amendment protects X." These are easy targets, but they underscore the importance of distinguishing between the authoritativeness of the framers and of the ratifiers.
Lastly, there are the people. More precisely, I mean the populace at large during the founding (or during the passage of a given amendment), through which one can discern the common usage of terms. Needless to say, the people at large aren't an independent source of legal authority, but their use of language can shed light on what they, through the ratifying conventions, thought they were consenting to when they ordained and established the constitution. For example, consider Professor Amar's discussion of the meaning of "commerce." He writes, "'[C]ommerce' also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets."
I hope this is a decent starting point for thinking about what to make of Professor Amar's extended history lesson – aside from the fact that it's eye-opening and intrinsically interesting.
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3 comments:
You've written on this before -- on your old blog -- and made many of the same arguments. Many of them are true statements of the problems with discerning the "intent" that should be read into legislative pronouncements (I think almost everything generalizes beyond the constitutional case). Of course, my use of "intent" is a little bit of a red herring -- if judges are to enforce the legal import of some written document, then they have to put some construction on the words of the document, and the problem is no less vexing if it's conceived of as something other than a search for intent.
Anyway, my general reaction is that what your arguments show is that the originalism you've described is a second-best method of legislative interpretation. It's far from obvious that there's any better method. (In this connection, I think extending your argument beyond constitutions to ordinary statutes is especially instructive: your case logically applies to narrow, technical statutes which passed Congress last year. But I assume few would suggest a frankly non-originalist approach to reading such statutes. To go beyond originalism in the constitutional case then requires at the least a solution to a tough line-drawing problem.)
I'm also curious whether you think the literature on public ignorance has any application to your discussion of "the people['s]" legislative intent. You're probably inclined to say, "No application," so let me be more specific. If the people could be shown to have had only the vaguest ideas of what, say, the guarantee of the Second Amendment meant, does that mean modern courts should apply only the vaguest constraints? To a certain extent, this difficulty can be skirted by a more nuanced understanding of democratic legitimacy: the people may delegate legislators to have specific intent on their behalf, thereby lending legitimacy to laws that they themselves may have only dim awareness of. But I think even this more flexible theory is strained by the likely reality of public misconceptions(?) about the law. If the public believed that the First Amendment said something opposite what the framers believed, whose view should govern? Is that too easy? Then what if the public's view is an unreasonably bad reading of the text, essentially crazy?
You might argue that what I've outlined are simply more problems with originalism rather than challenges to your argument, but I don't think that's right. They're consequences of the notions of the democratic legitimacy of legislation that you use to justify your inclusion of "the people" in the first place.
Thanks for the deep thoughts.
To be clear, my post wasn't meant as an attack on originalism. In fact, I'm inclined to agree that some form of it is the best we can do. It's hard to argue with a judge interpreting a statute so as to advance the purpose that a majority, if not all, of its legislators clearly had in mind. (Of course, there may still be outcome-determinative, or even just rationale-determinative, disputes over how to formulate this purpose - how specifically, how significantly, etc.) This seems as unassailable a practice as, say, interpreting a statute so as to maximize its internal consistency. (Once again, the thorns of nuance inevitably prick judges' interpreting fingers; one can at least imagine, for instance, having to look outside of a text in order to decide between two equally internally consistent readings.) Both practices help the legislature do what it was trying to do through the imperfect tool of language. (Congress: imperfect tools using imperfect tools since 1787.) Things get interesting when the legislators did not conceive of the question at hand. Should we then endeavor to rule in accordance with what we think they would have thought had they the requisite knowledge? Or should we let our functional understanding of the law guide us?
As far as I recall (a dangerous way for me to begin a sentence), Scalia narrows his originalism, in theory, to a search for the public understanding of the text itself at the time that it acquired legal force. Thus legislative history is irrelevant except as generally poor evidence - poorer than a trusty, dusty dictionary - of how the majority of citizens conceived of a law when it was passed. His idea is that despite delegating legislative authority to Congress, the people don't consent to legislative history because it wasn't enacted through the democratic process. I guess Amar - a "liberal originalist" who supports judicial reliance on legislative history - and others would have to invoke some theory of delegation in response. But you're right to point out that this doesn't account for my suggestion that "the people's" understanding be given an independent weight on the interpretive scale. Since I have the pride of a tuskless bull walrus, my response is to lumberingly backtrack. (It's not like my upside is a harem.) I will now advance the view that the people's delegation of legislative sovereignty to Congress is more or less complete. Accordingly, the public's use of a term such as "commerce" is only relevant as evidence of how the ratifiers understood it. You've made me realize - regardless of your intent - that recognizing multiple loci of legislative sovereignty at a given level of government is, well, an exercise in futility. In the rare case when Congress meant heads and the people thought tails, then heads it is; if the people thought they voted for representatives who would enact tails, then that's for the democratic process, not the courts, to sort out. Power from, not to, the people!
Good follow-up reading:
"Originalism for Liberals" by Cass R. Sunstein
"Alive and Kicking" by Jack M. Balkin
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