Houston Federalist Society Dialogue on the Future of Originalism

Josh Hammer, F.H. Buckley, Ilan Wurman, with Judge Oldham as moderator

Earlier this month, I blogged about a brewing debate in Federalist Society circles about originalism, common-good originalism, and common-good constitutionalism. Our Federalist Society chapter in Houston organized a dialogue to discuss this fascinating topic. We invited Josh Hammer, Ilan Wurman, and F.H. Buckley to present their competing views on this topic. I encourage everyone interested in the future of originalism to watch this debate.

Comments

[Krychek_2]

I know what it's future should be -- put it out of our misery already.

[Ilya Shlyakhter]

One thing I don't understand about originalism -- maybe someone can explain:

The Constitution's legitimacy today comes from assent of _today's_ people, who have (presumably) read it and agreed to live by it. They read it based on _today's_ public meaning. So why should the _original_ public meaning control?

[LawTalkingGuy]

Self- professed original public meaning originalists can chime in if I am getting this wrong, but this is how I understand the argument, although I think it suffers from the legitimacy flaw you address and major methodological flaws.

Despite being lumped together in a group as the "Founders/Framers" they were not a monolithic group who disagreed on a lot of things. They were also politicians who were trying to compromise and promote a political project. The Federalists Papers are spin. So advocates of getting back to the true meaning of the Constitution wisely realized that you can't just look at what the drafters thought about what they wrote. The best evidence we have of their "intent" is the text itself.

To figure out what the text meant, and thus what the drafters intended you have to figure out what the words meant to everyone around at the time they were written. This is supposedly a perfectly answerable question. Once the original public meaning is discerned, future courts will be constrained by it forever more. This leads to an unchanging Constitution which leaves much less room for judicial activism. Thus everyone is bound by the rules of the game, and knowing that, the political branches can add more rights through statute, and the people can use the amendment process to add more (or subtract) rights or revise constraints on government (like the commerce clause for instance).

So in sum original public meaning originalism will give an unchanging view of what the Constitution means and knowing that, the people are free to use the tools at their disposal to work from that to achieve what they actually want.

[Ilya Shlyakhter]

If "unchanging Constitution" is the main value, then strong adherence to stare decisis gives that -- whether or not the ruling that created the precedent matched Founders' intent. Before the first ruling, the interpretation was by definition unsettled, so the first ruling can't be said to have "changed" it. Thus Founders' intent seems a red herring as far as constancy is concerned.

It seems originalism claims its legitimacy not from constancy, but from the notion that living how Founders wanted us to is in itself a supreme value. But Founders aren't deities; our raison d'etre isn't to live out their plans. An originalist reading of the Bible (if it were possible to read God's true intent) might have supreme legitimacy, because living as God wants his followers to live is in itself a supreme value; but that logic shouldn't apply to the Constitution, yet originalists seem to imply it does.

[M L]

1. "Originalism" is the proposition that the meaning of the Constitution does/should not change, until it is properly changed via the amendment process.

2. The Constitution does not govern or apply to the people. Rather, the Constitution governs those who govern the people. Just as the people cannot change the laws that govern them on a whim, without going through the legislative process, so those who govern the people should not be able to change the Constitution which governs them, without going through the amendment process. That is why #1.

3. Because 1 and 2 have not been followed, one might argue that there is no "consent of the governed," and that indeed there is no longer a legitimate Constitution, the same having been materially and irreversibly breached so as to render the agreement irreparably broken.

4. Setting aside 3, your question isn't exactly clear but again, there is nothing in the Constitution for the people to "live by." Instead, it is the government that must live by it, as a condition of the people's consent to being governed by all laws, courts, officials and so on.

5. It's not clear what you mean by "today's public meaning." But basically, going back to #1, if you do not change the meaning of the Constitution except by amendment, then the original public meaning of the Constitution (as amended) will always be the same as today's public meaning. The fact that you may have evolutions of language such that some words gain different meanings in colloquial usage would have no bearing on the public meanings of those words as legal terms of art in a legal document.

6. The heart of your question seems to be: How is consent of the governed carried on from generation to generation? Simply the same way as the terms of a contract apply to the successors and assigns of the original parties. The successors and assigns receive the benefits of such contract and assume its obligations. And how is that manifested in successive generations? This is where it gets interesting. Under English common law and "birthright subjectship" it seems you had no choice. It was by birth. America was founded on a different concept of citizenship, which can be renounced at any time. So it seems new generations manifest their asset by choosing to continue living in the US and being a citizen rather than going somewhere else.

Quote from https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/

"The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.

America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain."

[Dilan Esper]

The framers of the Constitution were, of course, well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England.

It's hilarious to see a conservative originalist argue this as part of an argument against birthright citizenship. A British common law practitioner would say "are you out of your bloody mind? You have to follow Wong Kim Ark!".

And of course, that's the point. The originalist project is actually completely at odds with the actual common law system we inherited, which is based on the iterative wisdom of precedent, not original meaning.

[M L]

Wong Kim Ark stands for the proposition that U.S.-born children of lawful permanent resident aliens are U.S. citizens. It says nothing with respect to the U.S.-born children of illegal or non-permanent resident aliens.

Regardless. There is the British system we inherited, and then on the other hand there was the repudiation of certain elements of it that came with the dissolution of political bands tying us to it.

[LawTalkingGuy]

What are the babies then? You can't be born into an illegal status.

[M L]

There is a big difference between non-citizen and illegal. Millions of people are lawful residents or tourists.

What are the babies of illegals and tourists? Current practice is they are granted citizenship, but the Constitution does not require that. What should it be? I'd say they should have the same status as their parents - either tourist/temporary or illegal. Or, just legal on a temporary/tourist visa. But let's say you climb over the fence into Area 51 and pop out a baby. Boom, born into an illegal status.

[bernard11]

the Constitution does not require that

Please don't start that nonsense again.

[Ilya Shlyakhter]

"new generations manifest their assent by choosing to continue living in the US" -- and it is _their_ assent, not the Founders', that matters. That assent is based on how _new generations_, not the Founders, understood the words.

"terms of a contract apply to the successors" -- in deciding whether successors assumed the contract knowingly and voluntarily, shouldn't we ask what the contract's words meant to _them_?

[Ilya Shlyakhter]

"the meaning of the Constitution does/should not change, until it is properly changed via the amendment process" -- nothing stops people from passing an amendment that says, "All words in the Constitution shall be read to mean what they meant in 1787". That such an amendment hasn't passed is an indication of... what, in your view?

"not clear what you mean by “today’s public meaning.”" -- what most people living today, who read the document's words, take them to mean. Much more reliably determinable, than what 1787 people ratifying the document thought the same words meant: today's people can be polled.

"terms of a contract apply to the successors " -- if the original contract was written in Olde English, and successors agreed to inherit the contract after reading a modern translation, it's the translation that should govern. People agreeing to inherit the Constitution today do a mental translation into words' modern meanings, so it's the result of that translation -- modern public meaning -- that should govern.

[LawTalkingGuy]

Josh Hammer is a clown who once said this:

"Libertarians are aligning with leftists to advocate for more defense lawyers on the bench.

In no world is the median defense lawyer of the same credentials as the median prosecutor. Representing drug dealers, gangbangers, and felons in possession of firearms is not a dream job."

His opinions on the legal system should be taken with minimal seriousness.

[David Welker]

I listened to the beginning, and I have to say, this Ilan Wurman guy is pretty short-sighted when it comes to basic premises or addressing basic holes in his own analysis. The problem with him isn't that he has made a contemporary choice to be an originalist, it is that he has a hard time understanding that it is, in fact, a contemporary choice. As he says, both public original meaning originalism is "so obvious to me" and he just doesn't understand why the vast majority of academics do not submit to his narrow-minded point of view.

Well, if public original meaning is so "obvious" why were many originalists, such as Robert Bork, previously focused on the original intent instead of original public meaning? Is this guy so short-sighted as to not realize that this "obvious" idea of "his" is actually more of a contemporary trend?

James Madison, described by some as the father of the Constitution due to his authorship of the Virginia plan upon which much of the document was based, changed his view on how the document was best interpreted over time, as illustrated by his signing the bill establishing the Second Bank of the United States after originally arguing that the First Bank was unconstitutional. Thomas Jefferson also changed his view on how the Constitution should be interpreted when he went forward with the Louisiana purchase even though he originally thought that it was unconstitutional. Chief Justice John Marshall, likewise did not dogmatically adhere to a straight-jacketed view of the Constitution when he insisted that "we must never forget, that it is a constitution we are expounding" reminding his readers that the "Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." The key word here is "adapted," which implies the sort of change that originalists falsely claim is illegitimate.

One of the greatest jurists of our history, John Marshall didn't agree with the idea of public original meaning. But Ilan Wurman just cannot understand while the vast majority of academics disagree with him on this point, which is just so "obvious" to him?

Wurman engages in question begging without even realizing it with a dogmatic insistence that the "public original meaning" is THE way to interpret the Constitution. But, is interpreting the Constitution according to the "public original meaning" within the "public original meaning" of the Constitution?

In fact, insisting on a particular method of interpretation is a contemporary CHOICE of modern political actors, such as judges. I don't get why people like Wurman don't admit they are making a choice as opposed to dogmatically insisting it is some sort of logical imperative. I think it is because admitting they are making a choice rather than pretending that they are under some sort of compulsion both takes away much of the self-righteous steam upon which they run and also requires them to advocate that judges take actual responsibility for the real-world consequences of their decision. An originalist is someone who wants to sentence someone to death, while pretending that they did not just make an important discretionary decision.

Looking back at history, we see that the Magna Carta wasn't interpreted according to its original public meaning. Instead, its meaning was expanded to include the interests of more ordinary people whereas originally its protection was limited to nobility. And the rights of Englishmen, well, those were originally ONLY against the King, and NOT Parliament. The American Revolution was, in part, an extension of these rights against Parliament. If people insisted on submitting solely to original understandings, English society would have never progressed and there would have never been a United States of America. The Star Chamber, after all, was once thought to provide appropriate due process. And, of course, many of the practices complained of in the Declaration of Independence were perfectly legal under the "original public meaning" of English law.

What words in the Constitution give anyone the idea that the role of judges and the evolution of law, especially with respect to the meaning of rights, was supposed to be frozen in place? Article III of the Constitution is, in fact, very short. This, in contrast, to Article I, which is, relatively speaking, very long. Why the difference? Well, one possibility we must take seriously is because since the role of Congress was going to be so much different from and more limited than Parliament, it was necessary to go into more detail. In contrast, the judiciary in the United States was likely expected to play the same role in the United States as it did in England, hence much less needed to be said. This means that judges in the United States would recognize new rights against government power just as those in England did.

Originalists tend to be both obnoxious and arrogant. They are just like Bible thumpers who insist that if you don't interpret text just as they do, you are going straight to hell. They have what is even nearly a religious sense of how those who deviate from their methodology are not righteous. And we are supposed to pretend that gravitating towards this way of thinking is a matter of inescapable logic, and not an arbitrary matter of contemporary personality? Please. Spare us.

At the end of the day, the entire insistence on this "one true methodology" is nothing more than unthinking dogmatism. And, quite ironically, a discretionary contemporary decision of the sort that originalists claim to abhor in others.

[Dilan Esper]

Beware of any theory that claims that legal interpretation is simple.

[nystateofmind]

I disagree with your contentions in your last two paragraphs regarding "originalists." Yes, there are a few that think they are the only ones with the correct viewpoint, but many people use some form of originalism without behaving that way.

My biggest issue with many people who purport to be "originalist" (though in reality their originalism somehow always aligns with their political opinions) fails to answer the fundamental question of "why these ten amendments?" when addressing what was meant by the framers. In the whole universe of possible amendments to state in the Bill of Rights, they chose a distinct subset. That is why I feel you must look beyond the text to see the historical events that caused the framers to focus on those ten. The Constitution itself does not define "unreasonable searches and seizures" in the Fourth Amendment nor "cruel and unusual punishments" in the Eighth Amendment, but the historical context of why the framers highlighted these are necessary in order to apply the Constitution to a situation of today that was unknown to the framers.

The framers did not intend for the rights listed in the Constitution to be an exhaustive list absent amendment otherwise the Ninth and Tenth Amendments are extraneous. Many proponents of "Living Constitution" take this too far. The Ninth Amendment does not mean that you can just invent rights because you feel like it. There needs to be a basis in the text of the Constitution for that right.

[David Welker]

Saying that there needs to be a "basis in the text of the Constitution" for a right not enumerated in it strikes me as a contradiction.

Quite intentionally, the James Madison and the other Framers of the Bill of Rights did not seek to enumerate all rights. But they did say that their failure to enumerate a right should not be taken as a license to disparage or deny them.

How is your insistence that there must be a basis in the text of the Constitution for unenumerated rights not simply a contradiction of the written text of the Constitution that you say must be the basis of all rights?

[nystateofmind]

If any right could be created by judicial fiat, why have a difficult amendment process? As to your next to last paragraph, what that means is that the framers knew they were not omniscient. They were aware that as society developed there would be new scenarios that they would never have contemplated at the time the Constitution was drafted and ratified. As an example, look at Justice Scalia’s majority opinion in Kyllo v. United States. Thermal scanning could not possibly have been known to the framers. Yet the Fourth Amendment was found to apply in this case,