Snark and Originalism

Eric Muller calls an exchange between Michael Stokes Paulsen and Jed Rubenfeld about the latter’s new book in the Yale Law Journal “head-turningly nasty,” and Ann Bartow agrees. While I think that would be an accurate description of, say, John Simon on Gore Vidal, I’m not sure what it says about me but I really didn’t see it. In terms of tone, I don’t see anything problematic at all about Paulsen’s review; it’s hard-edged, but I certainly don’t see it crossing any boundaries. (His piece in the Roe v. Wade book, which I’ll hopefully blog about later today, is much harsher.) With respect to Rubenfeld, the “I do not know Michael Stokes Paulsen or his writings” line is bad, although for its sneering condescension more than the lack of truth Muller claims (I don’t think that sitting on a panel with someone at a conference a few years ago constitutes “knowing” somebody or their writings.) The next part of Rubenfeld’s review is pretty nasty, but if Paulsen misread the book as badly as Rubenfeld claims (I haven’t read it, so I can’t say)–especially on something as crucial as whether he believes Blaisdell was correct–I’m not sure it’s unjustified. And with respect to his comments on originalism, again, I don’t see the problem. I suppose I can see objections to Rubenfeld calling many originalist arguments “half-baked”, but he defends the claim substantively:

Consider Paulsen’s particular brand of originalism. He purports to reject “crude intentionalism.” Original meaning, says Paulsen, is properly understood to be the “objective linguistic meaning of the words of a text (in historical context),” as distinct from any “subjective,” “concrete historical understandings” of the text, including any “historical beliefs” about the applicability of the text in specific settings.

This position is either incoherent or fundamentally misguided or both.

It is of course conceptually possible to divorce the “objective linguistic meaning” of uttered words from the subjective, concrete historical understandings of those words held by the people who wrote or spoke them. What we might call the “semantic content” of words, derived from the linguistic rules of the relevant community, can always differ from the speaker’s or author’s “intended meaning.” People often employ words whose semantic content (in the above sense) differs slightly or significantly from their intended meaning. When we hear such words, we always have a choice in principle between interpreting them according to their semantic content or their intended meaning. Paulsen wants to say that only by following the original linguistic meaning can interpreters interpret correctly, remaining faithful to the actual written law as opposed to creating new law.

[…]

There is an excellent example of this point in Robert Bork’s The Tempting of America. n25 Like Paulsen, Bork tries to defend an originalism that casts aside the actual concrete historical understandings of the Constitution in favor of a supposed objective meaning of the text. He does so in an effort to make originalism safe for Brown v. Board of Education.

Yes, Bork admirably concedes, “those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life.” Nevertheless, Bork asserts, Brown could “have clearly been rooted in the original understanding.” How? Well, “equality and segregation were mutually inconsistent, though the framers did not understand that,” says Bork, and “equality, not separation, was written into the text.”

In other words, the subjective understanding of the ratifiers – their concrete historical understandings – were out of whack with the objective meaning of the words written into the text. Equality means equality; this is not anachronistic; equality meant equality in the 1860s; equality was written into the text; segregation is unequal; hence segregated public schools are unconstitutional. Paulsen indicates that he essentially agrees with this analysis: “The result in Brown … makes entire sense if one focuses on the original linguistic meaning of the Fourteenth Amendment rather than on the mistaken subjective views or expectations of some individuals at the time that the Amendment’s principle did not extend to segregated education.”

The problem is not that Brown cannot be squared with the original linguistic meaning of the Fourteenth Amendment. Of course it can. The problem is that a great many other things can too. An originalism that cuts anchor with concrete historical understandings in this way can no longer coherently present itself as originalism.

The one virtue of originalism was that it purported to offer determinate, demonstrable answers to real constitutional controversies. Does the Eighth Amendment ban the death penalty? “Of course not,” an originalist could say; “I can easily prove to you that it was not so understood at the time of enactment. Any contrary reading by the Court today would therefore be a usurpation – government by judiciary.”

But when originalism cuts anchor with concrete historical understandings, the death penalty’s unconstitutionality certainly could be “rooted in the original understanding.” “Capital punishment was inconsistent with abolishing cruel and unusual punishment,” a Borkian originalist judge could say, “though the framers did not understand that, and the bar on cruel and unusual punishments was written into the text.” Even a Marxist judge could now be an originalist: “Private property and equality were mutually inconsistent, though the framers did not understand that, and equality was written into the text.” Or how about abortion? “Roe v. Wade makes entire sense if one focuses on the original linguistic meaning of the Thirteenth Amendment’s prohibition of “involuntary servitude,’ rather than on the mistaken subjective views or expectations of some individuals at the time that the amendment’s principle did not extend to laws banning abortion.”

Rubenfeld has a substantive point here, and I think it’s proper to make it in forceful terms. Although many originalists seem to think it’s a trump card, the distinction between “original intent” and “original meaning” has very little difference in practice although the latter is somewhat easier to defend theoretically. And Brown is really where the rubber hits the road. While it’s not strictly accurate to say that you can’t defend Brown in “originalist” terms, because at the time of the ratification of the 14th Amendment “equal protection of the laws” was generally not understood as applying to social (as opposed to political) equality, you can do so only by defining principles at such a high level of generality that “originalism” is essentially drained of any content. “Originalism,” defined this way, is indeed virtually indistinguishable from Dworkinian aspirationalism, and does little to constrain judges even in theory. I don’t see anything wrong with pointing this out in clear, biting language.