McGinnis: The Empire Strikes Back Against Originalism

"All these criticisms [of originalism] are actually disputes about original meaning, not rejections of it."

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John McGinnis wrote an essay for Law & Liberty, titled "The Empire Strikes Back Against Originalism." I encourage you to read it. John provides a thorough summary of how originalism stands today in our legal order, and how its critics are coming to grips with it. Much of the essay focuses on a recent New York Times Magazine article by Emily Bazelon. (James Phillips and I were quoted by Bazelon.) Here is an excerpt:

Bazelon is often caught in a time warp in her criticisms of originalism, as if we were still in the infancy of its revival without the benefit of mature scholarship responding to opponents' claims. She says that Brown v. Board is inconsistent with originalism without even addressing the scholarship, like Michael McConnell's, that argues that it is not. She suggests that originalism will necessarily require a wholesale repudiation of precedents that undergird the modern state without taking account of work like my own and Mike Rappaport's that identifies a role for precedent within originalist theory.

But the strongest evidence of the strength of originalism is that much of her criticism of the current Court comes from originalists or originalist methods. She quotes my colleague, the originalist Steven Calabresi criticizing an opinion of Justice Scalia's as getting history wrong. Similarly, she objects to Gorsuch's Gundy v. United States dissent, which cast doubt on the breadth of Congress' authority to delegate legislative power to the executive, by quoting work from two scholars at Michigan Law School who argue that the original Constitution did indeed permit such delegations. She also argues that a study of the linguistic record of "keep and bear arms" at the time of the Second Amendment shows that the phrase was used in a military context. Unfortunately, she does not assess the correctness of these contending positions (she would have more space if she left out Gorsuch's car, home, and work as a private litigator). But all these criticisms are actually disputes about original meaning, not rejections of it.

Disagreement about meaning does not mean that the Constitution is indeterminate. Indeed, because original meaning depends on facts, it is, in principle, ascertainable, unlike the personal values that other judicial decision-making approaches require judges to use when deciding which of many inconsistent precedents to apply.

I whole-heartedly agree with John. The debates we have today are originalist debates. The Constitution may mean one thing or the other, but it has a meaning, which we can ascertain. Read the entire piece.

NEXT: Reviving Congressional Reauthorization

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  1. Spot on. Thank you Prof. McGinnis.

  2. If the framers were to come back from the dead, one would be hard pressed to find a group of people with views so completely at odds with modern American thought. They thought the franchise should be restricted to white male landowners. They tended to be white supremacists. They were OK with public floggings, and blasphemy laws, and prior restraint on speech. Before we even get to the question of what is the true originalism, can someone please first answer the more basic question of why we should care about the views of people whose values were so very different from our own.

    They weren’t bad people. I disagree with some on the left who would make them out to be evil incarnate. They just had a completely different world view than we do.

    1. “…can someone please first answer the more basic question of why we should care about the views of people whose values were so very different from our own.”

      1) Because time is linear and there was a an opinion slide between then and now on a host of things, but not all of them, if you look at something like the right to keep and bear arms. Public opinion does not flip like a light switch.

      2) Having anticipated changes in opinion, there is an amendment process.

      3) Because they created a social contract between the government and the people through the constitution, of which we are all part of by being citizens. If you want to govern differently, one should understand the meaning and intent of the original contract.

      4) Failure to meet modernist ideals of inclusivity negate nothing of the validity of the constitution as a governing document.

      1. OK, let’s go with your contract analogy. Conditions are not what they were in 1789, so a lot of the terms that were perfectly fine terms in 1789 are useless if not counterproductive today. Now, with most contracts, that’s not a problem, because if the terms no longer meet the needs of the drafters, they make a new contract.

        In the case of the Constitution, there are any number of things that people would like to have different, but the amendment process requires 2/3 of each house and 3/4 of the states, which virtually guarantees that anything having less than near unanimous support isn’t going anywhere. I very much doubt the Constitution in its current incarnation would make it through the amendment process if we were starting from scratch. So, we’re stuck with a document that works ok for some things, not well at all for others.

        1. It’s not my contract analogy, it’s John Locke’s primarily.

          Okay, so conditions changed…but slowly for the most part over a long period of time, not all at once. What you’re advocating for, without realizing it, is what Jefferson wanted, a new constitution or vote every generation or so. However, that’s not how human society/culture works, we are governed by the dead in that the living inherit the bad and good from them. Culture is an inheritance.

          At most, you can say that the amendment process is to tough. Maybe. But that is a trade-off to avoid big changes on transient issues. Think of it this way, when conservatives control most state legislatures, and after (a potential) Trump win where the Senate is retained and the House retaken, aren’t you glad that the GOP can’t make a constitutional amendment to end abortion or (re)define marriage to its historical understanding of one man/one woman?

          1. As I said below, I think amending the Constitution should require more than a bare majority; I just think the current bar is too high. Though I’m not as worried about the scenario you propose in which conservatives amend it for policies I don’t like, because that has not been the case in jurisdictions in which it is far easier to amend the Constitution. In Florida, for example, where I live, amending the Constitution only requires 60% of the vote in a general election and I haven’t noticed that it’s been a problem.

            My greater concern is the structural polity in the Constitution that allows Trump to be president and the GOP to control Congress even though majorities vote Democrat. (I’m talking about the two senator per state rule and gerrymandered house seats.) If you want to beef up the Bill of Rights to put limits on what kinds of laws can be passed, fine, but it seems to me that one of the most basic, core elements of self governance is that the people get to choose whom their leaders will be.

        2. “In the case of the Constitution, there are any number of things that people would like to have different, but the amendment process requires 2/3 of each house and 3/4 of the states, which virtually guarantees that anything having less than near unanimous support isn’t going anywhere.”

          Common excuse, but it’s wrong.

          Look, if it required a 3/4th vote of the people, you’d be right. But of states is a different matter.

          Let’s suppose that 55% of voters are in favor of a given amendment. And let’s suppose that this support is uniformly distributed across the country. Every Senator, every House member, every state legislator, will find that 55% of their constituents favor the amendment! It will be ratified practically by acclamation.

          OTOH, let’s suppose that those 55% of voters are NOT uniformly distributed, but instead represent everybody in the 7 largest states, and nobody anywhere else. In THAT case, the amendment is hilariously doomed, it won’t even get out of committee.

          The supermajority requirement, because it is a supermajority of elected representatives, NOT voters, does not require a supermajority of voters supporting an amendment. It requires that support to be widespread, but it could be widespread and fairly shallow, and still do the trick.

          This isn’t designed to require overwhelming support for amendments, it’s designed to prevent amendments that are locally overwhelmingly popular, but not popular across most of the country. The “No taxes will be collected in coastal states” amendment, for instance, would probably be pretty popular in terms of the gross percentage of the population that liked it, but be a complete nonstarter because none of the non-coastal states would like it.

          No, the real reason we’re not getting amendment anymore isn’t that it’s absurdly hard, it’s that it is routed through Congress, which wants different changes to the Constitution than the general population wants, and which can get them with much more certainty and less trouble by convincing judges to say the Constitution already means whatever the desired change is.

          An amendment to allow Congress to regulate all commerce, indeed everything, not just interstate commerce? Congress would love it, the states would never ratify. But the Supreme court gave it to them without the bother of letting the states have any say in the matter…

          1. Brett, the elephant in the room that you’re ignoring is that 2/3 of Congress and 3/4 of the states favors minority policies since Wyoming and North Dakota cancel out California and New York in both the Senate and state ratifications. And I think the procedural rules should be ideologically neutral. Californians who support or oppose a constitutional amendment should not be disadvantaged because they’re Californians, or because the amendments they favor are progressive amendments.

            1. The elephant in the room YOU are ignoring is that the only reason that’s the case, is that you’re talking about amendments with local appeal.

              The procedural rules, aside from the provision that no state can have their representation in the Senate reduced without their consent, ARE ideologically neutral. The rules are just biased, deliberately, against amendments that are only locally popular.

              Californians aren’t disadvantaged by being Californians. They get a heck of a lot of House seats. They’re disadvantaged by wanting things that aren’t popular across the country.

    2. Any cursory reading of the Declaration of Independence would show how far we have gone past any point they would have tolerated. Funny how you ignore that and only care about the obvious white Anglo-Saxon male changes. Much more to society than you present.

      1. They understood change would happen, and that there is danger in granting government new and more power, so they gated it behind supermajority requirements, and the unrestricted free speech to convince most that government should be given more power.

        This need has not disappeared. We have plenty of historical examples of democracies and things like them failing into true dictatorships.

        “Eh, we got some big mo going, and that’s good enough” is whistling past the graveyard.

      2. That’s because a lot of what’s in the Declaration of Independence is stuff most people either don’t care about any more or no longer believe to be true.

        It’s not a bad document. It served a valuable function in its time. But times have changed.

    3. We should care about their views on certain topics, because they wrote our founding documents, which basically everybody in the government is swearing to uphold. And, to the extent they haven’t been amended, they still mean today what they meant then.

      Fixity until amended is the very point of having a written constitution. Once you abandon that principle, you don’t have a constitution any more. You’re just pretending to have one.

      1. I think I should amplify on this: Fixity until formal amendment is literally the only reason you bother having a written constitution. If you don’t value that, you go with the English alternative, a common law ‘constitution’; It does work for certain values of “work”, you don’t HAVE to have a written constitution to have a government.

        And what is the purpose of language, if not to transmit meaning across time and space, from one person to another? To enable a person today to understand what somebody generations and miles away was thinking?

        “Living constitutionalism” is a deliberate rejection of the whole point of writing down constitutions. It’s a rejection of language itself, a decision that you won’t let it work, you won’t receive the meaning that’s being sent to you.

        That’s what makes it so hard to defeat: You literally can’t argue somebody out of the position that they’re not going to let language work, you have to use language to argue with them! They’ve dived into a rabbit hole nobody but themselves can get them out of.

        1. Living constitutionalism is a recognition that because the amendment process is so unwieldy, the only way to meet today’s needs is to take a flexible approach to language.

          In general, I do not believe in flat out ignoring a plain command in the text. I would not, for example, allow a 29 year old to be sworn in as a senator. But there aren’t as many plain and unambiguous commands, not open to interpretation, as some originalists seem to think. I don’t know all the rights that are encompassed in the Ninth Amendment, for example, and I damn well don’t think the Seventh Amendment makes small claims court unconstitutional.

          1. Every burglar in the world thinks locks are unwieldy. But they only have trouble with them because they’re trying to steal what the locks are there to protect.

            People are always going to think a process ‘unwieldy’ when it doesn’t give them what they want.

            1. Oh, so now you’re analogizing people who want self governance to burglars who are trying to steal something? Are you for real?

              Here’s a far better burglar analogy: The Constitution stole self goverenance from the American people. We’d like it back.

              1. No, because you’re not talking about self-governance. California, say, has that already. You’re talking about other governance, about people in one place being able to impose changes to the highest law of the land on people living in other places.

                You’re saying, “Because we’ve got more people over here than you have over there, we get to impose our will on you.”

              2. “The Constitution stole self goverenance from the American people.” YOUR definition of self-governance is California and New York ruling the rest of the country. A more reasonable one is every state, and local governments within the states, governing except for the few cases where local actions have a major impact on national policies. That was stolen from us by FDR and an intimidated Supreme Court.

    4. can someone please first answer the more basic question of why we should care about the views of people whose values were so very different from our own

      This is a question that has to be asked whenever there is a system of written laws. But how is it legitimate to claim to have written laws and then with a wink and a nod allow unelected judges to substitute their own preferences for the written laws?

      We could have a sunset provision for all written laws, requiring them all to be re-enacted periodically, but what would that do to the certainty and continuity that people expect from a civilized society?

      1. Most written laws don’t require 2/3 of each house and 3/4 of the states to change. I think amending the Constitution should require more than a bare majority, but the current system goes too far.

        And I don’t see it as winking and nodding as you substitute judicial preferences for the written laws. Everyone agrees that the 8th amendment bans cruel and unusual punishment; the question is whether it’s what we think is cruel or what the framers would have considered cruel. South Carolina executed someone by burning at the stake as recently as the 1840s; to say that times and sensibilities have changed is a gross understatement. In that case, I’m fine with going with modern sensibilities and I don’t really care that the framers would have seen it differently.

    5. can someone please first answer the more basic question of why we should care about the views of people whose values were so very different from our own.

      This is not an argument against originalism. It is an argument against constitutionalism.

      1. It’s an argument against the current Constitution, yes, but not against constitutionalism in general.

    6. >can someone please first answer the more basic question of why we should care about the views of people whose values were so very different from our own.

      We don’t care about their views, we care that the existence of the current nation being legitimate. If the constitution would not have been adopted, then there is no America. The very union would be considered illegitimate and all the states are now their own dissolved nations free to govern in the foreign policy sphere until a new constitution is adopted, if that even happens.

      1. I’m not required to throw out the baby along with the bathwater. Suppose it were found that President X became president by bribing members of the electoral college, and Congress promptly impeached him. OK, historically, his election is now probably illegitimate. But does that mean that every bill he signed and every judge he appointed never happened? I don’t think so. And I think the same principle would apply here.

        But I’m not even arguing historical illegitimacy. I accept the historical legitimacy of the Constitution. I just don’t think it meets our current needs or continues to serve us well. So I favor revamping it, and in the meantime interpreting it in a way that achieves results that do a better job of meeting our needs.

  3. The bazelon family has a hard-on for doing everything in their power to raise crime rates.
    David with the temporary insanity defense and now emily and laura today.

    One of the sisters wrote an article about how noble she is for neglecting her son in order to defend her client “Kash Register” who—despite having an extensive rap sheet—is somehow the victim of “racism”.
    Talk about over-killing the mockingbird. Do all leftist attorneys imagine themselves to be Atticus Finch?

    1. It’s Lara, not Laura, and I’m not clear why you’re criticizing her for securing the release of an innocent person from prison. (He did not have an “extensive rap sheet,”¹ though he was hardly a saint.) And she did not say that she “neglected” her son (or daughter). She said that her job — like that of every other professional — sometimes required her to miss some family events. And vice versa.

      ¹I love people who watched some cop shows on tv and then adopt the lingo as though they think it makes them sound cool.

  4. I find a gold BMW rather tasteful actually, though it would violate any sumptuary law would one exist today.

  5. Good to see that nothing’s really changed on the originalism front. The original meaning of the constitution is still whatever the speaker wants it to be.

    1. Exactly.

  6. “She suggests that originalism will necessarily require a wholesale repudiation of precedents that undergird the modern state without taking account of work like my own and Mike Rappaport’s that identifies a role for precedent within originalist theory.”

    I think that’s fair, though. Consistent originalism DOES require a wholesale repudiation of precedents that undergird the modern state. The modern state is almost wholly illegitimate, constitutionally, under any consistent originalist reading of the Constitution. That’s just a brute fact: We live after the effective fall of the original Constitution, among its ruins.

    Any originalism that embraces precedent to the point of saying the modern state is constitutionally legitimate is an originalism which has surrendered to the modern state, and given up on being intellectually honest.

    1. Well, let’s just throw our hands up in despair and be conservative living constitutionalists then.

      1. No. Originalists should neither embrace the modern state, nor give up. They should take the view that, while all this crap is illegitimate, it’s perfectly reasonable to chose your battles.

    2. Any originalism that embraces precedent to the point of saying the modern state is constitutionally legitimate is an originalism which has surrendered to the modern state, and given up on being intellectually honest.

      Stare decisis has legitimate force on its own. Originalism can respectably back down in the face of this where necessary (as opposed to being a “bloodthirsty originalist,” which is how Scalia referred to Thomas). This approach, however, doesn’t get around the difficulty posed when originalist judges are asked during their confirmation hearings whether Brown was decided correctly.

      1. Originalism can respectably back down to precedent in the face of genuine textual ambiguity. Some parts of the Constitution explicitly require judgment calls, (What is cruel and unusual?) which can be based on current views and practices.

        And originalism can reasonably say, “This is wrong, but we need to concentrate on fights we can win today, and save this fight for later.”

        But originalism can’t respectably say wrong is right. It must always correctly identify which interpretations are wrong, even if it doesn’t have to expend capital on fights it can’t win today.

        Scalia described himself as a “faint hearted”, which is to say, unprincipled, originalist. Often he was no originalist at all.

        He knew it, and he knew he was doing wrong, and that Thomas was more principled than he was. And of course that grated, somebody demonstrating that you CAN do the right thing always pisses off people who have decided to do the wrong thing and tell themselves the right thing was impossible anyway.

  7. Originalism — still younger, and far less popular, than Kim Kardashian.

    1. Silly, Originalism was the default setting before liberal living constitutionalists took over the law, starting in earnest with the Warren Court. Orginalism is merely retaking the ground it once lost, leading to twerpish calls for packing the courts.

      Note, this reply isn’t for you, who but rather anyone else who may have read your otherwise unfunny comment.

      1. That’s what I tell people. Originalism isn’t new, it just didn’t need a name before living constitutionalism reared its head. Before that, it was called “reading”.

        1. …and completely false. Ridiculously false. But it should surprise no one that an originalist gets history completely wrong.

  8. She says thatBrown v. Board is inconsistent with originalism without even addressing the scholarship, like Michael McConnell’s, that argues that it is not.

    As Professor McConnell pointed out in his article, any constitutional theory unable to accommodate Brown is “seriously discredited.” McConnell and others force the theory through extreme contortions to fix this problem, so that at the end we’re not even talking about the same theory.

    Consider what James Madison said: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” Does McConnell show that Brown is consistent with the constitution in this sense? Hardly. Here is a criticism of McConnell’s approach by Michael J. Klarman: “It is inconceivable that most – indeed even very many – Americans in 1866-68 would have endorsed a constitutional amendment to forbid public school segregation. …McConnell concedes that nowhere near a supermajority of state legislatures would have endorsed school desegregation in 1866-78.”

    If Brown can be called originalist notwithstanding these facts then the theory is no longer originalist as Madison understood the term, and in fact is not to be preferred over a theory of a “living” constitution, since it is equally easy to manipulate in order to conform to the judge’s policy preference. One simply adjusts the “level of generality” at which the analysis will take place until the proper result is reached.

    1. Brown is anything but Originalist, as I’ve pointed out in other threads. The same Congress that ratified the 14th Amendment, and the states themselves, provided for segregated schools. If you want to get to desegregation via the Court, you can’t do it via the 14th Amendment and call it Originalist.

      That you can’t get Brown through originalism is not a stake through the heart of originalism that the left thinks it is, because social change via the Rule of Law is supposed to come through the legislature in a republic. You can’t get Obergerfell via originalism either, and that particular social change through the courts is just as wrong.

      The left uses conservative support for the Rule of Law as a proxy for opinion shifts, and it works at the margins. Just because society shrugs its collective shoulders and goes “meh” doesn’t mean society supports whatever social change the courts try to throw our way.

      1. You can’t get justice “through originalism”. So if your principle view of the law is that it should strive towards such, why should you support “originalism”?

        1. That’s like saying, “You can’t get to charity “through accounting”. Sure you can, accounting just tells you how to add up the numbers, it doesn’t say what you spend the money on.

          But it does get in the way of “charity” if you want to be “charitable” with somebody else’s money, and not bother getting their permission to spend it, first.

          Originalism doesn’t stop you from getting to justice. It stops you from getting to your idea of justice, without going through the process of persuading other people that you’re doing the right thing.

          1. Originalism doesn’t stop you from getting to justice.

            Every civil rights case from the last 70 years begs to differ.

            It stops you from getting to your idea of justice, without going through the process of persuading other people that you’re doing the right thing.

            Yes, that’s the problem with originalism. It sees tyranny and calls it justice.

            1. Yes, that’s the problem with originalism. It sees tyranny and calls it justice.

              So if we assume that written laws have the meaning that the ratifiers understood them to have, that is to see tyranny and call it justice? Instead, it is only justice if judges have license to interpret a law in a way consistent with his notions of justice? Laws with fixed meaning are tyrannical?

              1. So if we assume that written laws have the meaning that the ratifiers understood them to have, that is to see tyranny and call it justice?

                Sure, if you want to be an idiot.

                I’m pretty clear: my chief interest is justice. Originalism’s core conceit is that the chief interest is (some variation of) “original meaning”, with no regard as to whether that meaning was itself just.

                The problem is not with laws having a known and constant meaning. It’s defending unjust laws just because they’re laws.

                1. “I’m pretty clear: my chief interest is justice. Originalism’s core conceit is that the chief interest is (some variation of) “original meaning”, with no regard as to whether that meaning was itself just.”

                  No, you’re confusing different levels of meaning. You’re discussing what the law ought to be, originalism is about what the law IS. If the law isn’t what you want it to be, then it just isn’t. Go change it, instead of lying about what it is.

        2. You can’t get justice “through originalism”. So if your principle view of the law is that it should strive towards such, why should you support “originalism”?

          But what is justice? Is it simply what an individual judge thinks is justice or is it what statutes and constitutions say is justice? If the latter, then statutes and constitutions have to be kept in sync with current notions of justice. If the former, then we are ruled by the judiciary.

          1. But what is justice?

            Complicated. Possibly unreachable.

            That’s no reason to throw in the towel.

        3. I have nothing to add that Brett didn’t already say.

    2. Brown v. Board of Education overturned precedents that certainly weren’t originalist. The only way to square “separate but equal” with the 14th Amendment was to ignore the reality of inequality. The constitution never endorsed lying.

  9. As usual, I don’t find McConnell persuasive.

    He bases his whole argument on support fr the 1875 civil rights bill, whose provisions were much broader than school desegregation, and which ultimately failed in any event.

    And even there it seems as if proponents merely argued that the amendment permitted such legislation, not that it required it.

  10. “The Constitution may mean one thing or the other, but it has a meaning, which we can ascertain.”

    Is this a prediction of newfound unanimity in constitutional jurisprudence, or just a low-grade swipe that those who do not share the author’s political preferences and consequent constitutional interpretations?

    1. Whatever it is, it certainly is not a defense of originalism.

  11. […] because original meaning depends on facts, it is, in principle, ascertainable […]

    And yet, originalists can’t agree, even among each other, which of them has actually done so.

    They’re no more reliable then tarot cards and soothe sayers.

    1. They’re no more reliable then tarot cards and soothe sayers.

      Determining the facts is not equally difficult in all cases. Furthermore, if we limit the interpretations to “the sense in which the Constitution was accepted and ratified by the nation,” then quite a few can be discarded without much disagreement.

      1. Right.

        Which is why you think originalists would agree with each other more often.

        That they don’t kind of undermines their core claim, no?

        1. Which is why you think originalists would agree with each other more often.

          Agreement on what laws mean is far more common. Most such cases never even make it into the court system. The 14th amendment gets a lot of attention not only because it uses some ambiguous language but also because it can be used to justify literally any result that one could wish. But we shouldn’t conclude from this that there is widespread disagreement as to what written laws meant when enacted.

          That there is disagreement among originalists concerning the original meaning of the 14th amendment is not really due to a disagreement as to the facts. McConnell, for example, agrees that the 14th amendment would not have been ratified if the ratifiers had thought that it required integration of the schools. When Scalia would examine a law for the original meaning he would stop at that point.

          1. McConnell, for example, agrees that the 14th amendment would not have been ratified if the ratifiers had thought that it required integration of the schools.

            That right there? That is an example of a commonplace historical blunder. It shows that the person saying it does not have relevant evidence to cite from the historical record, but likely imagines he can improve the record with inferences.

            The error almost always comes in the same form, the one shown above, (“So and So [a historical figure] would have [some speculative thought, action, response, etc.]” Whenever you see “would have” in any historical discussion, look out. If you find yourself talking history, and using “would have,” you are almost certainly doing it wrong.

        2. The very people who framed and ratified the constitution didn’t agree with each other about what it meant. But 220 years later we can ascertain it’s unambiguous original meaning. And this nonsense actually passes as scholarly constitutional interpretation. I guess we all have to make a living somehow.

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