Originalism and Accidental Outcomes

Should we follow the original meaning even when it resolves issues in ways its enactors did not foresee?

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In my final guest post, I'll turn to the implications of the original meaning of the citizenship clause for originalism and modern law. Before I do, I want again to thank Eugene Volokh and the Volokh Conspiracy for inviting me, and to thank everyone for your comments and criticisms. The discussion may continue over at my regular blog, The Originalism Blog.

With some oversimplification, originalism is the view that the Constitution's original meaning should bind modern governmental actors (what Lawrence Solum calls the constraint principle). As described in prior posts, the original meaning indicates that persons born in U.S. overseas territories are born "in" the United States and that U.S.-born children of people not lawfully present in the U.S. are born "subject to the jurisdiction" of the United States. Originalism's constraint principle would require modern governmental actors to recognize people in these categories as U.S. citizens.

This originalist outcome may seem odd, though. The clause's enactors likely did not foresee that their constitutional language would resolve either question. Neither question was part of the 1866-1868 citizenship debates. The U.S. didn't have material overseas territories until 1898. Materially restrictive federal immigration law didn't begin until the 1880s. The originalist resolution is therefore accidental: the enactors could have chosen other language to accomplish their goals that might have affected these modern debates differently. What justifications for originalism explain enforcing outcomes that the enactors could not contemplate?

Several common justifications seem unhelpful here. One is that modern law should respect the wisdom of the framers. A related idea invokes the framework in which the Constitution was adopted. John McGinnis and Michael Rappaport argue that the supermajority process required to adopt constitutional provisions tends to produce good results. Similarly, it's said that adopting or amending a Constitution occurs in an atmosphere in which people undertake unusually thoughtful reflection on long-term goals and structures, in contrast to ordinary short-term political thinking.

These approaches share the common feature that they suppose adherence to original meaning produces (on balance) desirable substantive outcomes due to the way the text was adopted as law. Invoking the constraint principle to bind modern political actors is justified by the results. But this justification seems inadequate where the enactors didn't choose the constraint that is now applied. With the citizenship clause, for example, the enactors likely didn't understand the policy questions involving birth in overseas territories or birth to persons not lawfully present in the United States. Invoking the constraint principle to resolve these policy questions today (instead of leaving them to the political branches) is difficult to justify on the basis of the enactors' wisdom or the enactment's structural advantages. The text's resolution of the policy questions arises from fortuity, not choice.

A second set of justifications for originalism rests on popular sovereignty. Regardless of the desirability of the enactors' choices, those choices should (it is said) be honored because they were made through a democratic process encompassing the people's will. Again, though, it is not clear why modern political actors should be bound to outcomes not deliberately chosen by the people at the time of enactment. If "the People" in adopting the Fourteenth Amendment couldn't have foreseen that they were resolving key modern debates over citizenship, the resolution is only a fortuity of the language chosen, not a deliberate constitutional commitment of the popular sovereign.

These concerns might not worry those, such as my colleague Larry Alexander, who adopt an "original intent" view of originalism. Intentionalists might say that the best originalist way to apply the framers' enactment is to constrain the political branches only in the paradigm situations the enactors actually understood and confronted, while leaving further extensions or non-extensions to the political branches.

But most modern originalists call themselves "original meaning" originalists (following Justice Scalia), not "original intent" originalists. So they need a justification for treating the citizenship clause's text as binding even in its "accidental" applications.

I think there are two related justifications. The first is modern originalism's core commitment to rule-of-law values, specifically (in the case of a written document) to the rule of written law. Professor Solum discusses this commitment at length in justifying the constraint principle. Rule-of-law values such as stability, objectivity, and predictability are served by following the text's original meaning even if that meaning constrains modern political actors in ways the enactors couldn't foresee.

Originalism's rule-of-law commitment also arises from a formalistic idea of what the law is. This commitment underlies Justice Scalia's pioneering shift from original intent to original meaning. The law, he insisted, is what was enacted: the text, not the intentions. A formalist conception of law requires that the text be applied to the full extent of its meaning even if that goes beyond (or not as far as) the enactors' conscious design.

Originalism's commitment to formalism and rule-of-law values isn't incompatible with commitments to the framers' wisdom, the structure of the enactment process, or the idea of popular sovereignty. In many (perhaps most) cases, the justifications will run in parallel. Commitment to the text's original meaning commonly validates these other justifications because the text is (usually) the best evidence of the enactors' design. But as the citizenship clause indicates, original meaning and the enactors' design will sometimes diverge. At that point, rule-of-law considerations appear to dominate and justify original meaning originalism's adherence to the text without exception.

Categorical adherence to original meaning is reinforced by an important practical concern. To this point, I've assumed that it's possible to separate clearly situations in which the enactors deliberately resolved a modern policy choice and situations in which they resolved it only accidentally. But those situations may not be so easily distinguished. Even with the citizenship clause, some authorities have suggested that the enactors could have foreseen the issues of overseas possessions and undocumented migrants. Beyond the citizenship clause, categorization difficulties become even more apparent. What if the enactors deliberately chose to constrain the political branches in a certain way, but new policy considerations, not present at the time of enactment, arise to suggest that the policy decision has additional dimensions the enactors could not foresee? Pursuing such inquiries necessarily injects uncertainty and subjectivity into the interpretive process. Originalism applied with such qualifications may resemble non-originalism and cease to provide dependable constraint on judges or the political branches. Originalism's commitment to rule-of-law values will sharply oppose such moves as undermining objectivity, stability, and predictability; originalism's formalism will insist that the solution is the (relatively) concrete rule of original textual meaning, irrespective of whether that meaning reflects a deliberate policy choice of the enactors.

The formalist approach is compatible with other justifications for originalism. Those who rest originalism on the framers' wisdom may believe that, on balance, the best way to effectuate the framers' wisdom is to apply the framers' text categorically, even to situations in which it may appear that the framers did not make a deliberate policy choice. The alternative is case-by-case evaluation of the text's compatibility with the framers' choices, which, in addition to being unstable and unpredictable, may, due to institutional limitations and bias, not deliver superior results. Thus, other justifications for originalism may combine with and complement originalism's formalism, rather than stand as an alternative to it. But the example of the citizenship clause indicates, I think, that formalism is originalism's core.

NEXT: Today in Supreme Court History: October 30, 1735

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  1. With the citizenship clause, for example, the enactors likely didn’t understand the policy questions involving birth in overseas territories

    I don’t understand this. The US may not have had overseas territories, but their acquisition, one way or another, was a live possibility at the time. And of course other countries had overseas territories, so the situation was not unimaginable.

    1. Right. And also, we did have territories. The country was expanding westward, acquiring territories. As it happens they all became states, but I don’t think anyone thought the US government was required to make them states, couldn’t have kept some as territories, couldn’t have negotiated treaties with the Indian tribes, etc. Heck, Alaska was acquired as a territory in that era and didn’t become a state until the mid-20th Century.

      So they almost certainly understood that the US would have territories where there would be a legal issue about citizenship of people born there.

  2. No, we should ignore originalism altogether. The framers’ world view was almost totally different from our world view. Why should the opinions of slaveholders, white supremacists and advocates of restricting the vote to white male property owners decide issues for today?

    1. Why should the opinions of slaveholders, white supremacists and advocates of restricting the vote to white male property owners decide issues for today?

      You’re right. We should completely ignore their opinions and views. In fact, we can start by ignoring the 1st, 4th, and 5th amendments. No more miranda warnings! And the government simply must be allowed to seize anything it wants without having to compensate the previous holders! To kick this off, the government should prohibit all campaigning by the DNC, seize all its assets, and force them to testify to anything illegal they have committed!!!!1!

      1. There are routes other than originalism that preserve the protections of the First, Fourth and Fifth Amendments. Just because the framers got a lot wrong doesn’t mean they got everything wrong. It does mean that you need a better argument than “that’s what the framers intended.”

        1. Originalism doesn’t rely on “what the framers intended”, it relies on “what the framers wrote down”.

          The alternative is “what I intend”, where both “I” and “intend” vary by the speaker and the phase of the moon.

        2. It does mean that you need a better argument than “that’s what the framers intended.”

          This is nonsensical. This is exactly what 80% of this article discussed: the difference between original intent and original public meaning, and how original public meaning is a) the superior method and b) the more widely accepted method.

          Even your favorite liberals on the Court, such as Elena Kagan, acknowledged the salience of Scalia’s method (original public meaning originalism) and stated “we are all originalists now.” It’s time to get your talking points straight, or perhaps you should start a Twitter war in an attempt to cancel Elena Kagan because she sided with a man who took the original public meaning of words and legal phrases during the slaveowner era seriously. Clearly, Kagan is equivalent to a slaveowner.

          1. If you want to have an argument with Elena Kagan, you’ll need to contact her directly. There is a significant overlap between her views and mine, but I am no more responsible for her comments than she is for mine.

            And my underlying point, which applies to both original intent and original public meaning, is that I don’t especially care about either one given that the authors of the Constitution had views that are not merely in conflict with mine, but in conflict with those of most Americans today. You think it’s a good idea to give the last word to people who thought the vote should be restricted to white male property owners, fine; I disagree.

            1. given that the authors of the Constitution had views that are not merely in conflict with mine, but in conflict with those of most Americans today. You think it’s a good idea to give the last word to people who thought the vote should be restricted to white male property owners, fine; I disagree.

              The fact that some of their actions are inconsistent with their own words about equality and the rights of man hardly means that all their words are useless. As the article states, original public meaning originalism is largely divorced from the messy, ironic, inconsistent, and illiberal actions of the humans who wrote the Constitution.

              Being victims of British colonization, for example, the founders had some salient views on the extent of police power and searches and seizures that are certainly relevant today. And it was Scalia who often came down on the side of defendants instead of the government’s side in 4th amendment cases, unlike, say, purposevists such as John Paul Stevens.

              1. I didn’t say that *all* of their words are useless. Nobody is right about everything, and nobody is wrong about everything. There are some issues on which I agree with the framers and others on which I do not.

                What I’m saying is that neither their opinions, their writings or their intentions are dispositive. We are living in different times, and a significant chunk of what they believed does not reflect current American values. So if your best argument is that that’s what the framers intended, I don’t care. That argument is really just a version of the logical fallacy of appeal to authority anyway.

                1. So if your best argument is that that’s what the framers intended, I don’t care.

                  I never understood the urge to unload so many words in the comment section of an article that I didn’t understand. Still clinging onto the hackneyed strawman of “intent.”

          2. Deontologist,

            Stop misquoting Kagan. She said “we’re all textualists now.” Being a textualist is quite different from being an originalist.

            1. LOL!

              Go ahead, read page 62 of this Senate hearing transcript and tell me what it says:

              http://purl.fdlp.gov/GPO/gpo12385

              1. I was familiar with the textualist quote, not the partial quote you gave. So you are right, those four words did come out of her mouth, but you are still not accurately quoting her. Here is what she said:

                And I think that [the drafters of the Constitution] laid down—sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So in that sense, we are all originalists.

                Which is pretty much the opposite of what you pretend she said above. “In that sense…” is a very big qualifier. All Justices and legal scholars are trying to determine and apply the intention of the drafters who sometimes “laid down broad principles” that were meant to provide flexibility: And I think that they did not do that [provide specific rules for searches and seizures, for example] because of this incredible wisdom that they had that they knew that the world was going to change…. And then she explained that the Constitution, in her view, could change through the formal amendment process (e.g., the 14th Amendment) or could change through new understanding of what the text means, what the principle contained within the text requires, particularly in context of a changed world.

                But partly they[, changes to the Constitution,] come outside the formal amendment process as well, and what you said about Plessy and Brown is absolutely right, that if you look at the specific intent of the drafters of the 14th Amendment, they thought that the 14th Amendment was perfectly consistent with segregated schools. I mean, you just have to—you cannot really argue otherwise as a historical matter. But in Brown, the Court said otherwise.

                So your use of a partial, out-of-context quote of Kagan to suggest that she agreed with Scalia’s approach is highly misleading. In context, it was clear she was saying almost precisely the opposite of what Scalia said. And Brown is a strong rebuttal. Notwithstanding McConnell’s attempt to defend it on original public meaning grounds, Brown simply isn’t consistent with the intent of the drafters of the 14th with respect to the particulars of how the principle should be applied. (Likewise Loving.) But Brown is more consistent with the principles espoused (given both observation of practice under the original application of those principles and, frankly, more enlightened views on “race”), even if the public at the time and the drafters did not think it would require integration of schools in the District of Columbia, for example.

                Scalia’s version of original public meaning does not allow the Constitution to be “changed” in that manner. Obviously, Kagan’s does. And she was intentionally drawing a contrast. You pretend she was climbing on board the original public meaning train. That’s just not true.

        3. There are routes other than originalism that preserve the protections of the First, Fourth and Fifth Amendments.

          Sure. There’s “I like these things, so we should keep them today.” But the problem is, this methodology only preserves those protections for as long as a bare majority of people agree with you.

    2. Because the alternative is rule of men, and that’s been tried, and it’s worse.

      Look to Portland for an example. Or the Soviet Union, whose Constitution’s literal text was ignored in favor of rule of men.

      1. Sometimes rule of men works well and sometimes it doesn’t, but at any rate, that’s not what I’m talking about.

        There are multiple different methods for interpreting the Constitution. That I reject one specific method — originalism — doesn’t mean I reject all methods and endorse a free for all. Despite what you may have been told, living constitutionalism actually does have rules and parameters.

        1. A living constitution is rule by men. It is so flexible and variable as to have no objective meaning or interpretation, and thus useless as a means of knowing the law. Why have law when its interpretation is as fluid as Niagara Falls? It is rule of men under a fake name, and useless.

        2. There are ways of interpreting the Constitution, and there are ways of substituting for the Constitution whatever you’d prefer to it.

          The latter always claim to be “interpreting” the Constitution, too, because it’s the only way they have an excuse for their ideas being implemented without amendments to the Constitution.

          1. But whenever the Supreme Court interprets the Constitution, those on the losing side are going to claim they’re ignoring the Constitution in favor of their own personal preferences. Losing liberals and losing conservatives alike make that complaint.

            You really want to go back to the days when the First Amendment prohibited nothing more than prior restraint? The thing that has changed since those days is our conceptual understanding of what free speech means. To the framers, so long as there was no prior restraint, there was no First Amendment violation, and you could be punished afterward for what you said. I like our interpretation better.

          2. The funny thing about you is that your “interpretation” of this particular provision is a classic example of substituting whatever you prefer.

    3. The scarcity of references in the Constitution that can be plausibly associated with slavery, as well as some of the authors’ writings, suggest that the authors did not firmly believe either that white people were necessarily superior to others or that the vote should be restricted to white male property owners. Until 1807, for example, New Jersey permitted women to vote, and nothing in the federal constitution prohibited other states from extending the vote to women. Those who wrote the US Constitution and many of those who voted to adopt it (or not to do so) certainly knew that. Thomas Jefferson, undoubtedly among others, knew well that black and white people, intellectually, occupied much the same territory and were “kept in their place” to a large degree by arbitrary rules; nothing else, at bottom, can explain enactment of black anti-literacy laws.

      Those “slaveholders, white supremacists and advocates of restricting the vote to white male property owners,” some of them stained by the injustice of slavery and all of them limited by their contemporary environment, still did a pretty good job of structuring a government and prohibiting it from trampling its citizens’ rights. Those who followed have improved on the original, both in amending the the original document and enacting laws to fulfill its implicit promise.

    4. Why should the opinions of slaveholders, white supremacists and advocates of restricting the vote to white male property owners decide issues for today?

      This is not an argument against originalism; it is an argument against constitutionalism.

  3. As described in prior posts, the original meaning indicates that persons born in U.S. overseas territories are born “in” the United States

    I think you’re trying to slice things too thinly. The US may not have had overseas territories, but it did have territories. What should it matter if it is not connected by land?

    1. Perhaps the better version of this is the more explicitly racist version.

      The US did not have majority-non-white territories before 1898.

      That, in the end, is what the Insular Cases were all about.

      1. Which takes us back to my comment above: Given that the framers had values so completely at odds with our own, why are their views even at issue?

        1. Given that half the people in this country have values so completely at odds with each other, why are anybody’s views even at issue?

          Minimal government is the only solution. Statists want maximal government, which is manifestly at odds with your stated view that everyone’s views are at dds with everyone else.

      2. “The US did not have majority-non-white territories before 1898.”

        Pretty sure it did, but I suppose that depends on whether you consider Indians to be “white”.

      3. What about Alaska? In the late 1800s non-whites outnumbered whites 30 to 1.

  4. I appreciate the thoughtful posts that have done a good job outlining the originalist position on birthright citizenship, and in this post, providing a decent overview of some current topics in originalism (including Solum’s contributions on constraint and the 70s-80s shift from “intent” to “public meaning / expected application”).

    That said, the primary issue that I have with a purely originalist standpoint is that far too often, it is just as results-driven (not constraining, as Solum would have you believe) as any caricture of so-called “Living Constituionalism.” You see it in the threads, with so many commenters who claim the mantle of originalism when it suits them looking for policy reasons to disagree with one of the more slam-dunk originalist cases (similar to the ex post facto clause and Justice Thomas, where ideology rules the roost).

    For that matter, I am now thinking of the current election cases, and the sudden fascination with the issue of State Legislatures. I mean, sure. I wonder when our new Originalist overlords will first notice that the First Amendment only constrains Congress. Or is it just results-driven jurisprudence, like turtles, all the way down?

    At a certain point, originalism is not, in fact, an exercise in either constraint or in understanding history (history being different than law), but simply the acquisition of unearned legitimacy with which to belittle those who do not agree with you, only to be countered by those who fire back with their own “originalist” takes.

    At a certain point, you are no longer engaged in the practice of law, but the exegesis of a Biblical text without understanding Aramaic, Greek, or Hebrew.

    1. “At a certain point, originalism is not, in fact, an exercise in either constraint or in understanding history (history being different than law), but simply the acquisition of unearned legitimacy”

      The problem is that this is where living constitutionalism starts, not ends.

      1. “The problem is that this is where living constitutionalism starts, not ends.”

        So this is the canard that is constantly tossed in. What, exactly, is living constitutionalism to you? Who is the foremost practitioner? Is it your contention that “originalism” simply didn’t exist prior to the 1970s and 80s, and Scalia? That before people came up with clever phrases and words, that the Supreme Court made no attempt to read the text of the Constitution, or understand the meaning (or quote Justice Story, or the Federalist)?

        Did it occur to you that, just perhaps, originalism has been practiced for some time as a major tool in the jurisprudential toolbox?

        Eh, whatever. Ask you rhetorical questions is like surveying the pencils at the end of the year in a kindergarten class. Pointless.

      2. The notion that if you aren’t an originalist, you don’t have constraints was one of the biggest lies ever told. If the religion he professed was actually true, that one statement would cast him into eternal torture.

        Rather obviously, stare decisis is a huge constraint if you take it seriously. It’s also a better, smarter constraint than originalism, and is more politically neutral. Originalists generally hate stare decisis, which is very telling about their real agendas.

        1. I was referring to Scalia in my first paragraph, to be clear.

  5. I’ve enjoyed the other posts in this series, but I can’t wrap my head around the premise of this one. As other commenters above noted, it seems odd to claim that people never contemplated the idea of overseas territories. The entire history of the US to that point was a history of territorial expansion — “Manifest Destiny” and the Monroe Doctrine and all that. I respectfully submit that people in the 1800s were much, much better than people today at contemplating the idea of people being born in territories. Most Americans today probably can’t name any American territories. In the 1800s we had a territorial empire and everyone knew what the territories were. I’m not sure why we would assume they lacked basic imagination.

    1. Not sure why this one eludes you. Manifest destiny = the existing U.S. advancing westward, displacing the relatively small native population, and expanding the borders of the country. Overseas territories = taking control of existing territories fully populated by others and holding them as colonies.

      In the 1800s everyone knew what the territories were, yeah: proto-states, just waiting for enough white English speakers to move there, organize, and become states. That’s not what the Philippines was, though.

  6. “originalism is the view that the Constitution’s original meaning should bind modern governmental actors ”

    I think it’s actually more a matter of thinking that, like it or not, the Constitution doesn’t HAVE any other meaning. It only has one meaning, the meaning it was given when it was adopted. And the only way that meaning changes is by amendment.

    And that people who attribute other meanings to it aren’t just picking another of it’s meanings, they’re replacing it’s meaning with one they like better.

    1. But that is both facile, and begging the question, Brett. (Yes, it is begging the question, because you assume it had only one meaning that cannot be questioned).

      Let me go through two, easy, examples.

      1. I recently had to litigate a case about a recently-passed state statute on a matter of first impression. This wasn’t something from two hundred years ago, or 20 years ago. It had been passed three years prior to the decision. And the thing was- there was a gigantic disagreement about what had actually been passed! Not some kind of “lawyers quibbling over language to make a point,” but “Woah, what is going on with this statute?” And this is with contemporaneous accounts, modern understanding of all the terms, and legislative history (including staff committee reports on the language and budgetary impact of the legislation, not just floor speeches). So it is entirely possible to not have a single, agreed-upon meaning of something, even in the best circumstances.

      2. How can you be so arrogant as to assume that someone (undoubtedly you) knows what it means, when even the people who drafted it and ratified it didn’t always agree? To use an easy example, after the ratification one of the most pressing issues that was debated was, inter alia, the Alien & Sedition Acts and the issues of whether the First Amendment prevented only prior restraint or also acted against subsequent punishment. The very people responsible for the language and for drafting it … didn’t agree. So if those people, who wrote it, who were familiar with the time and the legal background, could not agree – why do you think things are so easy for people now to look back and divine meaning for provisions that were much less likely to be remarked upon?

      1. In addition, basically nobody believes this about any other text, other than maybe the most extreme fundamentalists in organized religions.

        Does anyone believe that Romeo and Juliet, or the Godfather, or Dover Beach has only one meaning? That there’s an original public understanding of the work and that’s the only thing we care about?

        I mean, if you have that approach to life, Freud had no right to appropriate Oedipus.

        Texts don’t have one meaning. They may very well have better and worse meanings- an interpretation of Romeo and Juliet that says “teenagers who can’t make their relationships work should just commit suicide” would be a pretty bad one, for instance. But they don’t have one fixed meaning for all time.

      2. Indeed. There are disputes every day about the meaning of recently drawn contracts, which of course have a vastly narrower focus than the Constitution.

        Besides, before we can talk about the meaning, we have to decide the meaning of “meaning,” the type of definition we want to use. Is a Toyota built in KY or TX an American car?

    2. Brett, after a notable historical effort, it would be possible to show that at the time it was ratified the entire Constitution had at least two disparate sets of meanings, and they were mutually exclusive.

      The first set would have been the meanings intended by the elite figures who wrote it, and who understood the interactions they built into its various parts. Those were the checks and balances, the separation of powers, the notions about rights, the concept of popular sovereignty underpinning everything—the subjects, in short, which informed the understandings which elite authors of the Constitution shared to accomplish their joint effort.

      The second set of meanings would have been those given it by ordinary citizens at the time of ratification. Mostly, ordinary citizens had no idea how the thing was supposed work, or what kinds of notions and suppositions were built into it. One reason for that being that the elite people who created the document tacitly expected it to be managed and operated by at least semi-elite people who somewhat shared the elite authors’ views.

      The simple truth is that the Constitution, if operated on the basis of what is now termed, “original public understanding,” would not have worked. It would not have worked because it was a novel and complicated machine built to be operated by people with some training concerning its complications.

      All of that is readily apparent in the historical context of the time. A context, by the way, which you will not be able to develop even an inkling of using the methods of, “original public understanding.”

      1. The Constitution was not for the illiterate those with no knowledge of the way governments work. It was, however, written in plain language and accessible to those with a reasonable degree of literacy and a general understanding of the way the English government of the time operated. I leave to historians the question of the relative size of the two groups, but suspect it was weighted as much or more to the second as is the case now. And I suspect that the general outlines, if not the more esoteric implications, were understood well enough, and by enough of the population.

  7. Thanks for the posts, Professor Ramsey.

    I agree that original meaning should be followed. As Randy Barnett put it, the Constitution is now the law that governs the People. It is the law that governs those who govern the People. And just as we, the People, cannot change the law that governs us, without going through the political process, those who govern us cannot change the law that governs them without going through the AMENDMENT process. This has a popular sovereignty theme to it but Ramsey seems right that formalism is the core.

    And yet, of course, those who govern us have changed the law that governs them, without going through the amendment process. They’ve done it many times, when it’s politically expedient or just because they feel like it. This is not some griping over modern day political grievances. Arguably since Marbury v Madison this has been happening. But without a doubt, this is a form of tyranny, and it was rampant in the first 100 years of this country, and in the second 100 years, including the first half of the 20th century apart from modern times.

    What to make of that? I’m not here to suggest the project be scrapped. Just observing facts. I’m not a revolutionary of any sort, nor a “living constitutionalist.” Instead, I take this as a reflection on the fact that nothing is perfect in this fallen world. I’m still in favor of following original meaning today.

    Some will argue that when you find yourself in a game of backgammon, it makes no sense to try and apply the rules of checkers just because you would have preferred to play checkers. I don’t agree with that but there could be some theoretical point where it makes sense.

    1. It is the law that governs those who govern the People.

      Yikes. The number one premise in American constitutionalism, the one from which everything else flows, is that nobody governs the People, who are sovereign. That means they act at pleasure, and without constraint. The Constitution, being the People’s own decree, does not constrain them, but constrains only their government.

      Nothing in the Constitution applies at all to what the People may choose to do, including change the Constitution by any means they find convenient. For instance, the amendment process set forward in the Constitution applies to the government, but to the People themselves. That is one of several reasons why a Constitutional Convention could prove way too exciting.

      Perhaps, M.L. you were mistaken only as a matter of capitalization, and meant to refer to persons in their individual capacities, as subjects of the government?

      1. “. . . but not to the People themselves.”

      2. I have a typo in the second sentence, “the Constitution is now the law that governs the People” should have been “the Constitution is not the law that governs the People.”

        And you know what, you might be right, maybe I shouldn’t capitalize People there, but not sure it makes a big difference. Can you explain this more?

  8. Original meaning is less able to deal with rapid change than e.g. original intent. But change (especially technological change) is now rapid, and accelerating greatly. The law is already lagging further and further behind in areas such as cyber warfare, AI, biotech. How long do you expect the balance to remain in favor of OM?

  9. The key question here is what is an accidental outcome.

    Perhaps the Declaration of Independence’s phrase “All men are created equal” language provides a classic example.

    The key point of Dred Scott v. Sanford was that applying the phrase to the “enslaved Negro race” would be an outcome so absurd that the Framers could not possibly have intended it and it could not possibly part of its original meaning.

    And today, ones side in the abortion debate depends in part on whether one thinks the use of the term “created” was an accident and not really intended to mean anything different from “born.” And for similar reasons. How ansurd one would think such an outcome would be?

    In my view, which is closely related to my view of rational basis, whenever a question is the subject of substantial debate, either today or historically, interpreting the other side’s approach as a mere accident is not fair play. It is therefore not an accident that the authors of the decleration used “all men,” and not an accident that they used the term “created.”

    Nor is it an accident that the framers of the 13th Amendment used the term “party” rather than “person.” They wanted to prohibit the practice of slavery as itself inherently immoral, completely separately from the question of whether the former slaves were to be treated as full persons, regarded as equals, or indeed otherwise entitled to rights.

  10. The US did not have overseas territories but the incorporated territories were I think understood for eventual admission as States and that process proceeded at a fairly rapid clip as population developed in those areas. The Louisiana Purchase was in 1803 and Louisiana was admitted as a State in 1815. Texas became independent in 1836 and promptly re-instituted slavery. Texas was finally admitted to teh Union in 1 845 was admitted to the Union as a state which more or less lead directly to the Mexican American War. The Mexican American War ended in 1848 and California was admitted to the Union in 1850. Alaska was was purchased in 1867, but had little in the way of infrastructure or population until after WWII when significant military investment was made.

    I think it is fair to say many in the US were uncomfortable with an American Empire and looked at the oversees territories as a temporary arrangement, until something better could be worked out or they became developed enough to go it alone.

    “Overseas Territories” were first acquired after the Spanish American War, including indirectly Hawaii. Their status was somewhat ambiguous with regard to eventual statehood. Hawaii was not immediately annexed, some in Congress had misgivings. Cuba was ceded by Spain and shortly became independent. The Philippines when ceded to the US (for $20 million) were a simmering pot with multiple groups fighting for independence and sometimes against each other. The US formed a democratic government granted the Philippines more autonomy, eventually leading to Independence. Some in Congress wanted independence to be immediate. A similar course was followed with Puerto Rico, but there has never been as strong a constituency for independence in Puerto Rico as in the Philippines. There have been plebiscites held over the years and a clear desire for independence has never solidified. The Independentistas regularly draw a relatively small number of votes while the two major parties, one favoring statehood and the other favoring some kind of looser commonwealth association with the US. Both have held power at times in the recent past, that seems largely dependent on the popularity of the candidates. The other territories were regarded as generally regarded as too small to be independent.

    Viewing all of the as purely racist is a gross oversimplification. Sorry for the long rant but I get tired of the “everything is racism” mantra.

    1. Cuba was ceded by Spain and shortly became independent.

      But pre-Civil War discussions of annexing Cuba clearly were aimed at admitting it as a state. Indeed, for southerners that was the whole point – to add a slave state.

  11. “U.S.-born children of people not lawfully present in the U.S. are born “subject to the jurisdiction” of the United States.”

    On the underlying point, I don’t necessarily disagree with this specific statement. But “people not lawfully present” is too broad of a category, considering the entire idea did not exist as a legal concept back then. The challenge with originalism is to identify the general principle that must apply to modern questions that didn’t exist before.

    In his posts, Ramsey has not addressed temporary visitors or “sojourners” as they were called in the ratification debates, but he attempts to do so in the paper, unconvincingly. As Joseph Story wrote, “persons who are born in a country are generally deemed to be citizens and subjects of that country … , a reasonable qualification of this rule would seem to be that it should not apply to children of parents who were in itinere in the country or who were abiding there for temporary purposes.” That is consistent with the later Wong Kim Ark decision.

    The reason I disagreed with Ramsey’s overall conclusion or characterization regarding “subject to the jurisdiction” is illustrated by the issue of Native Americans as discussed in the ratification debates. People focus on the point that Native Americans were not generally “subject to US laws.” But that only applied within their sovereign territories. Howard expressly admitted this. And Trumbull likened Native Americans within their tribal territories to Mexicans in Mexico.

    Thus, Native Americans within their territories were situated the same as foreign persons in other countries.

    Native Americans physically present within the rest of the US were generally subject to US laws, and were again situated the same as other foreign persons who owed foreign allegiances and were physically present in the US.

    The point made in the ratification debates is that Native Americans who maintained tribal relations owed allegiance to a foreign sovereign, even though it was only quasi-foreign. This was illustrated by the general inapplicability of US law within their territories and the making of treaties with the tribes. And because they owed allegiance to a quasi-foreign entity, they were not subject to a “full and complete” jurisdiction in the words of Howard, or as Trumbull put it “They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Of course, any Native American who picked up and moved to New York City and settled there and did not maintain tribal relations, was subject to this sense of jurisdiction. Just as all those who immigrated from England or Germany or China to settle permanently in the US were also subject to its jurisdiction.

    1. And they clarified this by allowing Indians to claim US citizenship if they left the tribal lands.

      The modern equivalent is American Samoa, which maintains a tribal form of law. Samoans are eligible for expedited naturalization, but they are not automatically granted (or forced to be) US citizens.

    2. In his posts, Ramsey has not addressed temporary visitors or “sojourners” as they were called in the ratification debates, but he attempts to do so in the paper, unconvincingly. As Joseph Story wrote, “persons who are born in a country are generally deemed to be citizens and subjects of that country … , a reasonable qualification of this rule would seem to be that it should not apply to children of parents who were in itinere in the country or who were abiding there for temporary purposes.” That is consistent with the later Wong Kim Ark decision.

      The problem is, it’s consistent with the dissent in WKA, which is the part that cites Story. The majority quotes Lord Chief Justice Cockburn, who said,

      “By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

  12. If the proper way to interpret the Constitution is according to its original meaning, if that is how an interpretation gains legitimacy, then shouldn’t that be the meaning arrived at using the then-current rules of interpretation as the enactors and ratifiers would have done?

    For most of the text and amendments I think that would, at its core, revolve around the common-law rules and give priority to textualism (via the plain-meaning rule) with a secondary role for purposivism (the “mischief rule” – establish what problem the enactment was addressing, and interpret the text in support of that objective).

  13. It should be obvious to anyone who has ever had a contractual disagreement that two people who negotiated, read and signed a document can disagree on the intent. At least after the fact.

    So “Original Intent” is unknowable.

    Original Meaning gives a logical framework for interpreting a document over time, and allows modern people to CHANGE IT if they don’t like the modern outcomes.

    Even today, we continue to differentiate the automatic citizenship of Puerto Rico from that of American Samoa.

    1. Original Meaning gives a logical framework for interpreting a document over time, and allows modern people to CHANGE IT if they don’t like the modern outcomes.

      Too many people here wished that George Washington was a champion of gay rights, slave rights, transgender rights, lesbian rights, queer rights, transracial rights, corporation rights, the right to healthcare, the right to internet access, the right to safe spaces, the right to Social Security, the right to Universal Basic Income, and the right to execute those who offend their sensibilities.

      Let’s face it: not everyone 300 years ago was as liberal as you are. Fortunately, there’s a process to making the founding document of this country that you live in more liberal. It’s called Congress. It’s also called the Amendment process.

  14. As to persons not lawfully present, nothing in this series strikes me as having marginal utility beyond previous discussions of the issue. Hat tip to Jonathan Adler.

    https://reason.com/volokh/2018/07/19/a-bad-argument-on-birthright-citizenship/

  15. With the citizenship clause, for example, the enactors likely didn’t understand the policy questions involving birth in overseas territories or birth to persons not lawfully present in the United States.

    More generally, there was a gulf full of occurrences and changes during the time interval post-founding, and pre-now. And whatever did happen during that interval was nothing to the thinking of the founders, and formative in varying degrees for us. It is that post-founding formative interval of our own which conditions the thinking most lawyers and and legal scholars rely upon when they ponder original meanings.

    But for the founders, that interval, post-dating their own time, had no significance—they knew nothing of it. Their own similar formative interval stretched back to the time before Jamestown, before Plymouth, before Santa Fe. If we seek to understand original meanings the way the founders understood them, then it is their own formative interval we should privilege in our studies, not ours.

    Taking that as a guide, who supposes there are presently-edifying views on birthright citizenship to be found among the historical records of Massachusetts Bay colonists in the year 1706, for instance? That was the year of Ben Franklin’s birth. Not, I suggest, anyone among those laboring to develop an originalist theory to interpret birthright citizenship today.

    Among legal scholars, those who do delve into the pre-founding era generally study more about the laws in England than they do with regard to the earlier history of the American colonies. Nor in England do those scholars much study anything else except for the laws. They are, after all, legal scholars.

    That is no sufficient basis for the historical context needed to illuminate original meanings in the founding era—whether based on intent, or on text, or on some other standard. What does anyone suppose Boston in 1706 has to tell Washington in 2020 about birthright citizenship? Perhaps there is some such nugget. In that unlikely event, it would take academic historical study to discern it. No originalist method yet mentioned would avail at all.

    Still less is the context of our own post-founding formative era a sufficient historical context. From that we get nothing but present-minded analysis, because vis a vis the founders that era contains nothing else.

    And we would be naive indeed to suppose our own formative era had anything to tell us about what the founders thought, intended, or wrote, because, like us, they were powerless to imagine any part of the time which came after them. It influenced them not at all; it influences us totally. That is the stumbling block of present-minded analysis, without historical context.

    1. What does anyone suppose Boston in 1706 has to tell Washington in 2020

      The original public meaning provides Washington a framework which they can either accept, reject, or build upon by passing new laws and/or amendments.

      The current way that politics work is treating the Court as some sort of cryptolegislature because it’s politically unfavorable for our legislature to actually do something substantive rather than just rubber stamp feel good acts, like the Voting Rights Act.

  16. Let me ask. If a letter from the Senate was discovered in the federal archives commenting on the Treaty of New York, 1790 which letter said:
    children of Spanish settlers living in US territories/states were not citizens, or,
    children of mixed Indian, European parents living in US territories were not citizens, or,
    children born in a US state of Loyalist parents whose property was confiscated after the war, were not citizens,
    the document would have not relevance to this discussion, or, interesting but not conclusive, or, defeats the argument?

    Alternatively, if a document was found saying that too many factual particularities were extant to answer the question in 1790, future legislators should seek to follow their consciences?

    1. Why should any such letter have any weight on the legal analysis? Like the words of the article plainly state, intent is weak and intent isn’t what most originalists rely upon.

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