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The Essential Meaningless of the “Original Intent/Original Meaning” Distinction

[ 36 ] January 6, 2011 |

In my experience, almost any discussion (including this one) of “originalism,” somebody will bring up a distinction between “original intent” and “original meaning.” This argument was made prominently in Robert Bork’s The Tempting of America, and at least since then originalists have generally try to argue that they believe in the latter rather than the former. On its face, the distinction makes sense — it’s more plausible to say that we’re bound by what the framers and ratifiers of constitutional provisions wrote than what they subjectively expected. But it seems to me that — obviously unserious arguments like Steve King’s “no matter what’s in the Constitution it couldn’t apply to Mexicans” aside — it’s a distinction largely without a difference. Not only does “original meaning” not really solve any of the problems of originalism (most prominently, indeterminacy and normative unattractiveness), it essentially relies on the same kinds of evidence.

As it happens, for another of the series of papers I’m doing with djw about judicial review and democratic theory, I’ve been reading Randy Barnett’s Restoring the Lost Constitution. In the book, Barnett not only makes a case for the importance of the distinction but presents it explicitly as a road-to-Damascus story: he had always rejected originalism, but once he understood it to mean “public meanings” rather than “original intent,” he became a convert. Despite this, it’s not really clear what methodological differences are involved. For the most part, to determine the meaning of constitutional provisions Barnett uses the same sources — the Federalist, statements of prominent framers, etc. — that you would use if you were trying to determine original “intent” rather than “meaning.” And when you get down to cases, such evidence is almost never sufficient to establish a genuine widely shared “public meaning” that could be useful in resolving a constitutional dispute of any interest.

To take an example, let’s consider a case where I’m sympathetic to Barnett’s bottom line — his discussion of the Privileges or Immunities clause of the 14th Amendment. Like me and most other people who have considered the issue today, Barnett finds the reasoning of the majority opinion in the Slaughterhouse Cases — which permanently gutted the provision — unpersuasive. In addition, Barnett argues that Miller’s majority opinion “set aside” the original meaning of the clause. (p. 195) What is the evidence for this? Barnett relies heavily on the statements of John Bingham (of Ohio, not New York as Barnett claims), the amendment’s primary author, and also refers to more general claims about the intent of Congress from the dissenting opinions.   If we’re talking about “public meaning,” though, this evidence is inadequate.  If we are bound by meanings rather than intent, Bingham’s statements mean little absent evidence that they were almost universally shared by the many other federal and state legislators who voted to ratify the amendments, as well as the public at large. Barnett does not provide this evidence, and he also doesn’t confront the extensive evidence presented in the ur-text of originalism (Berger’s Government By Judiciary) that Bingham’s sentiments were largely anomalous even among members of Congress. Bingham’s evaluation of the 14th Amendment is more attractive to both Barnett and myself, but no member of Congress can establish a “public meaning,” and if anything Bingham’s interpretation of the implications of the text he wrote is a minority one.

Indeed, I would argue that the claim that the Slaughterhouse Cases set aside the “original meaning” is virtually self-refuting. If the decision had been rendered by a Court dominated by Southern Democrats decades after the fact, that would be one thing. But the holding was the product of a Republican-dominated Court less than a decade after the 14th Amendment was ratified. (The Lincoln and Grant appointees split 4-4, with the lone Democratic holdover providing the margin for the majority.) The closely divided Court provides definitive evidence that there was no authoritative “original meaning” of the Privileges or Immunities clause. The broad language of the amendment concealed sharp divisions within even the dominant governing coalition of the time.

So, essentially, I think the “original meaning” has the same problems in practice as any other form of originalism — the evidence presented is almost always selective and inconclusive, it does little to constrain judges, and to the extent that it does provide a constraint it leads to outcomes that most will consider normatively unacceptable.

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  1. Pithlord says:

    The more important distinction is between meaning as expected application and meaning as naming a concept, which might be the same thing as Mill’s distinction between extension and intension.

    The most sophisticated originalists say they are claiming that when we want to know what concepts the Constitution names, we should look at contemporary linguistic usage. If linguistic usage has changed, then we should go back to the beginning.

    But they are not claiming we should look at how either the framers as individuals or their generation as a cultural entity would apply these concepts. If they thought coverture and segregation were consistent with equal protection, then that’s not because the meaning of “equal” or “protection” has changed, but because they were substantively wrong about what those concepts require.

    So understood, originalism is unobjectionable but it is also toothless, since it is consistent with finding that the death penalty is “cruel and unusual punishment” — which is really the classic example of living constitutionalism. We mean the same thing by “cruel” as the 18th century, we just think different practices are in fact cruel.

    • Scott Lemieux says:

      Right. The constitutional provisions of the most interest are sufficiently abstract that examining linguistic meaning provides almost nothing useful in terms of application to concrete cases. Which is one reason, in practice, originalists always end up talking about the subjective expectations of framers — without that, there’s basically no content left.

      • Pithlord says:

        The example Solum uses is “domestic violence”, which he says in the 18th century meant something like insurrection while now it would mean intimate partner abuse. The thing is that this law professor type of originalism has no practical implications for the controversies people really care about. Brennan and Marshall could happily have been originalists in this sense.

        • hilzoy says:

          I don’t know enough about legal philosophy to know whether “original meaning” has some special meaning in that context. But about extension v. intension:

          The great virtue of that distinction, I think, is to permanently destroy all arguments of the form: the Framers didn’t think this provision of the Constitution had this result/applied to this group/etc., so if you think it does, you’re changing the Constitution. Because obviously, once you think about it, it is perfectly possible to *just not know* that some word applies to a particular thing.

          E.g., if Congress banned toxins of a certain sort, and then someone later discovered that some substance that had been thought to be innocuous was a toxin of that sort, then under the law, that substance is banned, even if Congress had no intention of banning it (back when they thought it was innocuous.) If I say that I will bring whoever committed some heinous crime to justice, not knowing that it was committed by my closest friend, I do not get to say: well, I never thought I’d be bringing *my best friend* to justice. In these cases, no meanings have changed, no original anything has been violated, and yet statements turn out to apply to people/things that they were not originally thought to apply to.

          Similarly, “the Framers never intended that creches could not be publicly funded/women would have rights/etc.” What matters are their words, not their understanding of those words’ implications.

  2. Pithlord says:

    I haven’t actually read his book, but I think Barnett could reply that the Slaughterhouse court did not make a linguistic mistake (or mistake in interpretation), but an application mistkae (or mistake in construction).

  3. Anonymous says:

    it’s a distinction largely without a difference

    Indeed, as it would more or less have to be. In general the intent behind an utterance and its meaning need to line up fairly closely. Not infallibly, of course–there are plenty of genuine failures of communication–but generally.

    I’ve always thought that the distinction was basically a fiction employed so that originalists have a ready excuse to ignore legislative history, as it is often convenient for them to do. Scalia, of course, insists that the concept of legislative intent is incoherent because the legislature is made up of individuals with their own varying intents. A convenient theory for those times when you want to cut a statute off at the knees by willful blindness to Congressional purpose. And if you’re going to do that, it’s useful to have an “original meaning” label for your originalism, so you can employ it without running into the supposed problems presented by legislative history.

  4. hv says:

    So, essentially, I think the “original meaning” has the same problems in practice as any other form of originalism — the evidence presented is almost always selective and inconclusive

    (emphasis added by me)

    Mr. Lemieux, I feel like you are underselling your case. I am a bit cynical, but I always thought “original meaning” was a much WORSE way to look at origins. I thought it was even tactical on the part of originalists… “in for a dime, in for a dollar” kind of thing.

    You outline some of the ways it is worse: the material one might choose to include is effectively unlimited (and unpredictable to participants in court cases), any cultural reference would count. This radically increases the danger of selectivism and confirmation bias.

    Most damning, it allows one to look at the writings of those who opposed legislation. To my eye, this leads to a contradiction with respecting “original intent” since it would plainly allow the intent of legislators to be trumped by the “meaning” supplied by the opponents whom they just defeated.

    Also, “original meaning” fails to have any explanation for how to handle the routine and predictable rhetorical excesses during the legislative process. It raises the specter that the judiciary will be listening to the Sarah Palins of the 1860s.

    Same problems? No, worse. Give me a Federalist Papers originalist every time.

    • Gwen says:

      I think that opponents get a voice in original meaning is a feature, not a bug (see my thoughts on the 8th Amendment and Bill of Rights debate below).

      That said, clearly there needs to be some degree of discretion to filter out “death panel” type claims and other hyperbole.

      Ultimately, the value of originalism hinges on the decency of the judges applying it.

      (I know, that’s a cop-out and a disclaimer).

      • Gwen says:

        Moreover, there is sort of an intersection of professional responsibility with constitutional law here.

        For example, Rule 11-type limits on “non-frivolous” argumentation.

        The courts certainly already decide what sort of argument is frivolous and what is not.

      • hv says:

        I think that opponents get a voice in original meaning is a feature, not a bug

        Gwen, thank you for your reply. I certainly didn’t mean to advocate silencing any particular group, but rather to point out that there is real tension between “original intent” and “original meaning” camps. My claim is the switch to “meaning” has devalued “intent” in very concrete ways. It is worth pointing out how silly some of the originalist stuff sounds, and how quickly they are willing to discard intent, and how damning that should be to the foundation of their approach.

        • Gwen says:

          To be sure, I never believed you were advocating silencing a minority, per se, but pointing out the problem inherent in giving weight to hyperbolic comments (which, I think, tend to be more often made by opponents than proponents).

  5. partisan says:

    Incidentally Pamela Brandwein has a book on the Slaughterhouse cases coming out in February from Cambridge called Rethinking the Judicial Settlement of Reconstruction.

  6. rea says:

    The central paradox of originalism in any of its forms is that the founders weren’t originalists. Over and over they used phrases (“due process,” “cruel and unusual,” “interstate commerce,” “general welfare”) with no particular set meaning, in the expectation that interpretation would be worked out over time on a case-by-case basis. When contemproary courts, for example, find a right to privacy protected by the 14th Amendmetn, they are engaging in the process intended by the founders, even if the particular results of that process were not forseen by the founders.

    • Pithlord says:

      That’s not a problem for “semantic originalism”. If the text sets our a principle or standard, as opposed to a rule, then that’s what needs to be applied.

      • Gwen says:

        I agree. I think the proper place for originalism is in setting bounds on what interpretations might be permitted, rather than dictating a particular outcome.

        This can happen in two ways:

        * Looking at general standards/principles rather than rules, as you said.

        * The “could the drafters and their peers have plausibly believed that this outcome was possible” test. For example, during the debate on the 8th amendment one of the representatives (from South Carolina, IIRC) objected to the prohibition on cruel and unusual punishment arguing that it might someday lead to the abolition of the death penalty. Scalia of course loves to talk about how the framers did not *intend* the 8th amendment to bar capital punishment but they certainly could have imagined that some later court might hold so (and did, for a brief time in the 1970s). Whether it was actually believed, intended etc is irrelevant in this view; the fact that it was raised sincerely made it a part of the discourse and thus a forseeable outcome.

        We shouldn’t let bad history determine the outcome of cases by itself… because then it is too easy to provide a veneer of legitimacy to a fundamentally corrupt process. We should however use original meaning as a guidepost or a boundary to ensure that our judges are being rational.

    • Scott Lemieux says:

      Barnett actually has two responses to this: 1)the framers didn’t believe in “original intent” but were more sympathetic to “original meaning,” and (more importantly) 2)what the framers wanted doesn’t matter if originalism is useful. The first claim I don’t buy, and the second if OK as far as it goes but only works if you’re persuaded of the merits of originalism (which, of course, I’m not.)

    • dave says:

      No, they used at least some of those phrases in the consciousness that they had well-defined meanings for a group of men brought up to revere the English Common Law. There is an important sense in which the US Constitution is not an ‘originary’ document at all, but merely a codification of expectations derived from previous social and legal institutions. That it has become, against the expressed wishes of many of the ‘Founders’, a quasi-religious object of veneration and interpretive debate, is none of their faults.

  7. Medrawt says:

    I wonder what “original meaning” folks would make of the following thought experiment:

    We have another constitutional convention. Included in our new constitution is the specific phrase “under no circumstances will the United States undertake the torture of a prisoner.” Now, does the “public meaning” of “torture” include or not include waterboarding?

    • C.S. says:

      does the “public meaning” of “torture” include or not include waterboarding?

      Even if they conceded this point, they’d just start arguing about what “prisoner” meant.

  8. Joe says:

    When Rachel Maddow went to Alaska, she had some older guy on who was actually a member of the Alaskan Constitution Convention (if there was more than one, don’t know which). He rejected originalism in its various forms as bunk.

    I’m somewhat confused how Scalia, self-expressed originalist, is so cynical about legislative history. Originalism repeatedly cherry picks just as badly as he thinks that leads to. It often cites legislative history (e.g., of the BOR) in fact.

    The difference between the various strands of originalism comes off as too much akin to counting angels on the heads of a pin. But, as I was just today, I will be denounced by their proponents as having “no limits” on my alternative. Which is fictional, but either way, if so, neither do they, in the scheme of things.

  9. Gwen says:

    I’ve always seen the distinction as being a bit like the distinction between the “objective” and “subjective” theories of contract interpretation. Intent is subjective; meaning is objective.

    At the very least, calling it “original meaning” is facially more honest.

    And, I imagine in a few edge cases (seriously, how many contract cases turn on whether you follow the chicken case rule or the case about the two ships Peerless?) it could actually matter.

    Of course, identifying and discussing those rare edge cases is the sort of thing that keeps law professors publishing papers, so you might want to look into it sometime…

  10. flounder says:

    I’m currently obsessed with the fact that one of the very few jobs the Framers bestow on the Vice President in the Constitution was to break tie votes in the Senate. I think this, plus the fact that very explicit situations (e.g. passing treaties) where a supermajority vote was expected, is a very underutilized argument against the undemocratic filibuster rules that the Senate has been operating under.
    I want to hear some of the “original intent” wags and pundits defend the current process against the fact that the Founding Fathers expected a system where Al Gore, Joe Biden, and Dick Cheney were breaking tie votes as a regular course of business, instead of on gimmick votes (last tie break was Dick Cheney under reconciliation rules) once every 12 years or so.

  11. Murc says:

    The litmus test I like to use for people claiming they prefer a stance of ‘original meaning’ (as opposed to constitutional literalist, which is an entirely different ball of wax) is to ask them about the 2nd Amendment and the word ‘arms.’

    If I get a breezy answer in which they claim ‘arms’ is a catchall term whose meaning can expand to cover all modern equivalents of 18th century hand-carried small arms (or an even breezier one in which they claim with a straight face that the Framers would have been a-ok with civilians parking tanks on their lawns) then I can safely dismiss them as a right-wing hack.

    If they suddenly look uncomfortable and admit that the 18th century meaning of arms as it relates to squaring the circle between their preferred constitutional rubric AND their preferred policy outcomes is something they have to wrestle a lot with, then there might be a conversation worth having in there.

  12. joel says:

    While I’m not generally a fan of originalism in any flavor as judicial doctrine, I have to say…I would be very sad to see the most excellent originalist riff that makes up the first third of the Cooper Union speech disappear.

    No particular reason to think that Lincoln was actually an originalist, but he was arguing against a supposed claim of originalism and decided to take the fight on his opponent’s terms. And, I think, he blistered them.

    Looking back, long before I even knew of the Cooper Union speech I was making somewhat the same argument (with considerably less rhetorical flourish) in Constitutional History class. I remember getting into a heated argument with the professor: “But the plain text* of the Constitution says that Congress can regulate the territories! So how can Taney say the opposite with a straight face?”

    * Article IV, Section 3

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