Originalism

Meanings, Intentions, Original Law

Another way to understand what originalists are doing.

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In the Supreme Court's recent standing decision, Uzuegbunam v. Preczewski, both sides made originalist arguments. An interesting post by Mike Dorf asks what kind of originalism this was.

To Dorf, neither Justice Thomas, for the majority, nor the Chief Justice, in dissent, really sought the original public meaning of the terms "Cases" or "Controversies." They didn't "consult late 18th century dictionaries, corpuses, and perhaps other sources," to ask "whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a 'case' or 'controversy.'" Instead, the Court cited the views of people like Justice Story or Lord Holt on whether common-law courts could hear suits for nominal damages. Thus, the Court must have been engaging in "old-school intentions-and-expectations originalism"—"showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages."

This iron choice between meanings or intentions leaves out another important possibility, namely the original law. If Article III courts could or couldn't hear nominal-damages suits at the Founding, the same likely remains true today. The history matters, not because we have an affirmative obligation to do as the Founders did, but to the extent the courts lack any new authority to do differently: perhaps nothing has happened to abridge, enlarge, or modify the scope of the judicial power since it was adopted in Article III.

So the reason why Justice Story and Lord Holt seem obviously relevant is that we want to recover what the law was upon Article III's ratification—and Justice Story and Lord Holt, neither framers nor ratifiers, might still know more about this than we do. Article III let the federal courts hear "Cases, in Law and Equity, arising under . . . the Laws of the United States." What we need to know isn't really the meaning of the words "Cases" or "in Law," so much as the scope of the common-law jurisdiction those words would have conferred. If common-law courts in general could hear these sorts of cases at the Founding, it's harder to argue that Article III forbade the federal courts from doing so.

This isn't to endorse either opinion, or to say that either consciously sought after the original law. And standing doctrine itself might have strayed rather far from Article III's original scope. Many questions that we now see as standing questions might actually have been resolved by other areas of law–the topic of an ongoing research project of mine, on "How Standing Ate Procedure." (Whether "the defendant should be able to end the case by giving him a dollar" might depend, for example, not on Article III, but on the law of tender—which might have let defendants make such payments, but which also might have taken them as admissions in future suits.)

But whether or not they're consciously pursuing the original law, both professors and judges might discover, like Molière's M. Jourdain, that they've been speaking prose all along.

NEXT: Why Are Some Courts Issuing Overbroad Injunctions Against Speech? "All the Craziness ... Needs to Stop Totally"

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  1. “What we need to know isn’t really the meaning of the words “Cases” or “in Law,” so much as the scope of the common-law jurisdiction those words would have conferred. If common-law courts in general could hear these sorts of cases at the Founding, it’s harder to argue that Article III forbade the federal courts from doing so.”

    This sounds a lot like the “historical test” used to determine which claims are common law ones for the purposes of the Seventh Amendment jury trial right.

  2. It makes no more sense to me to ask how the law was understood in 1789 than it does to ask George Washington’s doctors how we should practice medicine. In any other context, the very idea of being stuck in a 230 year old time warp would be laughed off the stage.

    The term “rule of thumb” comes from the fact that at the time, a man was legally allowed to beat his wife so long as the stick he used was no thicker than his thumb. Branding, flogging and even burning at the stake weren’t considered cruel and unusual punishment, and free speech meant no more than that the government couldn’t censor you in advance (though it could absolutely punish you after). Yet these are the standards we look to to determine how the Constitution should govern us today? Seriously?

    1. I think it makes perfect sense to ask and consider what you find. But it also makes perfect sense to reject it in favor of other important considerations.

    2. “In any other context, the very idea of being stuck in a 230 year old time warp would be laughed off the stage.”

      As well it should be – but what does that have to do with a Constitution with an established amendment process? Call it originalism or what you will, there should be interpretive rules which reserve the amendment process to the policymaking branches of government, and the people – rather than judges.

      1. I don’t see it as amending to acknowledge that words have changed, and what, i.e., James Madison thought was cruel and unusual may not be the same as what we consider cruel and unusual. So I would fix the problem simply by asking how 21st century Americans understand the concept, and not how James Madison understood it. Or how we today understand due process and free speech, not how the framers understood them. That way, the text is preserved and my objections about anachronistic thinking are satisfied.

        1. Are you assuming that “our” understanding (as interpreted by the courts) is going to move consistently in a good direction? What if “we” (the courts) decide eugenics is awesome, that hate speech isn’t free speech, that prior restraint isn’t so bad after all, that rape is so horrible that cruel and unusual punishments are suitable for that offense, etc?

          1. …and it seems that a lot of “we”s think due process means getting a mob together through the Internet.

            1. No, I am not assuming that things always move in the direction of progress; I part company with Steven Pinker on that question. But on average I don’t think we’re likely to get any worse results from modern understanding that we would from consistent application of Madison-era understanding, and for the most part I think we’d get better results. And, when it turns out that eugenics wasn’t so awesome after all, it’s much easier to then pivot to the right direction by simply adopting what would then be the current understanding.

              You’re right that the civil war amendments happened, but only because we had a bloody civil war. One of the things that worries me about the current situation is that the Constitution is not, in my view, serving us well, but the onerous and cumbersome amendment process makes it damn near impossible to fix the problems. I think there are parts of the Constitution that outlived their usefulness a long time ago. So, we may well end up having another civil war, with no advance guarantees about who would be left standing, simply because of the cumbersome process the framers left us.

              1. What are the issues on which the alternatives are judicial creativity or civil war?

                1. Or are you suggesting the courts can’t help and we may as well get ready?

                  1. The biggest problem is one the courts can’t fix: We are currently in a situation in which the majority simply cannot get what it wants in terms of policy because of anti-democratic institutions like the electoral college, two senators per state, and gerrymandering. How long the majority will put up with that remains to be seen. Unfortunately, there’s not much the courts can do about that since the EC and two senators per state are cast in constitutional concrete, and I’m not aware of any creative re-interpreting of the Constitution that allows those problems to be fixed, short of amending, which will not happen any time soon. So we may well end up going to war over it. I will point out that the EC and two senators per state would almost certainly be unconstitutional had they not been written into the Constitution itself.

                    On things that the courts can help with, I think the extent to which federalism prevents the federal government from dealing with social and economic problems is going to have to be revisited. I think the courts need to take a far more expansive view of voting rights than they have, and a far more expansive view of both equal protection and privileges and immunities. Doing so would not fix the problems in Paragraph 1, but it would help.

                    1. You may consider each state having equal suffrage in the Senate a “problem”. However it appeared to be very important to the founders as it’s the only aspect of the Constitution today that is protected from the amendment process unless all states who no longer enjoyed equal suffrage under such an amendment consent to it.

                      There are, of course, ways around this…

                      One is to amend the Constitution nullifying this restriction in Article V and then amendment the Constitution so Senators have different voting power (perhaps based on their state’s population, perhaps by the Senator’s race, height, or gender, or perhaps by some other attribute(s)).

                      Another is to amend the Constitution to neuter the Senate making the issue moot. Perhaps such an amendment would make the Senate merely a ceremonial body and specifically eliminate the need for them to pass a bill for it to become law and move all relevant existing Senate powers such as approving nominees to the House.

                    2. Very important to some founders. Madison thought the Senate was crap. Some initially thought the entire concept of states was crap.

                      It was important to them in terms of it being a way to compromise with small states and those who were suspicious of the nationalists.

                    3. “the extent to which federalism prevents the federal government from dealing with social and economic problems”

                      Really? Because I believe the federal government can invoke interstate commerce to justify telling people what to grow and smoke on their own property.

        2. And I’d say the people have gone beyond James Madison with (say) a Civil War and ensuing constitutional changes, as well as (to pick an example out of thin air) a prompt Presidential-disability process more suited to the nuclear age than the vagueness of yore, etc.

        3. “I don’t see it as amending to acknowledge that words have changed”

          You say tomato, I say tomato. You’re still licensing Merriam-Webster to become a permanent constitutional convention.

          The worst part of this is that, as soon as we agree that ‘changed meanings’ of words change the meaning of laws, people start asserting the meanings of words have changed, to circumvent the amendment process.

        4. The problem with the argument that what we consider cruel and unusual, rather than what Madison did, ought to control is that, in the hands of living constitutionalists, it inevitably turns into “How do I understand the concept?” rather than “How do 21st century Americans understand the concept?”

          Look at Roper v. Simmons, where the court cited data about the death penalty for crimes committed as a minor,¹ found it ambiguous, and then said, in so many words, “Who cares? What matters is what we personally think.”

          ​ ​
          ¹Not, as it is often misdescribed, the death penalty for minors.

      2. “Call it originalism or what you will, there should be interpretive rules which reserve the amendment process to the policymaking branches of government, and the people – rather than judges.”

        The problem with this defense is that originalism lets judges decide to abruptly throw out well settled constitutional doctrine based on their idiosyncratic view of historical sources. It also has zero guidelines on which sources they should choose to rely upon and which they choose to ignore. These sources remain mysterious to the vast majority of Americans. When students learn about the Constitution in Civics, sure they might talk about the Federalist papers, but they almost certainly aren’t talking about 18th century dictionaries, King’s Bench decisions, Blackstone, and various usages in other documents. The interpretation of the Constitution under original public meaning is an opaque ritual conducted by clerics.

        Consider non-delegation. The originalists would love to abandon principles that have been settled for almost a century in favor of an interpretation that could vastly change the structure of the federal government through an opaque reasoning process. This would be a huge sea change up-ending everyone’s settled expectations without a vote. Are they required to accept or even look at Nicholas Bagley’s and Julian Mortensen’s historical evidence on Founding-era delegation? No. They can simply quote the Massachusetts Constitution, Montesquieu, and Randy Barnett and decide that the entire administrative state is unconstitutional in one fell swoop.

        the TL:DR is that originalism is an interpretive method that reserves the amendment process to judges as much as anyone when it comes to the power to fundamentally alter the settled constitutional structure.

        1. I don’t think we can rely solely on judges to safeguard the constitution, no matter how plausible their theories.

          If they usurp power, the thing to do is push back, or get new judges (and then watch those new judges).

          If they uphold a statute which is unconstitutional, repeal the statute, and in the repeal resolution pronounce the statute unconstitutional. What are the courts going to do, re-enact a repealed statute?

          1. The problem, generally speaking, is that at the federal level the judges are chosen and confirmed by federal officeholders. They don’t work in opposition to those office holders, they are more in the nature of co-conspirators.

            That’s why virtually all laws struck down as unconstitutional are state laws.

            1. I don’t think that’s why. There are far more state and local laws out there. There are fifty different legislatures enacting laws. Thousands and thousands of municipalities. State laws get struck down more often simply because there are more of them.

          2. “If they usurp power, the thing to do is push back, or get new judges (and then watch those new judges).”

            Like we ever do that.

            US history since Marbury is one long parade of federal judges usurping power.

            1. And that’s what originalism is. Don’t like the administrative state? Become a federal judge and get rid of it. Don’t like voting rights? Same. Don’t like state economic regulation? Become a federal judge and rehabilitate Lochner. Don’t like the concept of fair trials? Join Gorsuch and Thomas to overrule Gideon. Sa

              1. Reversing prior power grabs is better than permitting them to continue.

                1. Yeah. Who do those voters and legislators making policy think they are? The nerve! Also Gideon is a real power grab. S/

                  1. I haven’t been keeping up – who is trying to overrule Gideon?

                    1. Bob for one.

                      But Gorsuch and Thomas think it was wrongly decided.

                    2. Oh, I see, Thomas and Gorsuch dissenting in Garza v. Idaho, beginning with the phrase:

                      “In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment.”

                      https://www.law.cornell.edu/supremecourt/text/17-1026

                    3. Well, I personally think it’s possible to interpret “shall enjoy…the assistance of counsel” as meaning “even if the defendant can’t afford it.” Making that phrase literal needn’t involve an amendment to the Constitution, so I wouldn’t quibble at an interpretive theory which reaches a just result.

                    4. And as a matter of natural justice, and I don’t know the constitution’s intent on this, I’d say if one side is going to be denied the right to a lawyer, the other side should be denied it too. If the case is too complex for amateurs, both sides should have the right to lawyer up.

                  2. “Who do those voters and legislators making policy think they are? ”

                    Yes, those voters and legislators who banned gay marriage or want abortion banned. How dare they contradict Tony Kennedy.

                    Gideon has led to billions of wasted tax dollars. Making people spend money on your whim is power.

                    Now, we have lawyers say “My client pleads guilty” instead of defendants saying “I plead guilty”. Zero evidence that government paid defense lawyers provide any benefit to defendants.

                    1. Wow. How dare we waste taxpayer dollars on ensuring that defendants have their rights looked after by competent attorneys and ambitions prosecutors are held to their burdens. I mean, how dare we?

                      You should be ashamed of yourself. You call yourself an attorney and yet you think public defense is a waste of money. Absolutely ashamed. You are an embarrassment to our entire profession. Public defenders are ten times the lawyer you think you are and hundreds of times the lawyer you actually are.

                      Seriously. Resign. You and anyone who thinks criminal defense for the indigent is a waste has zero business being in this profession. It. Is. Disgusting.

                      The fact we are members of the same bar is absolutely galling to me.

                    2. Also FWIW, I’ve never met a prosecutor who was any good that didn’t have the utmost respect for appointed defense counsel and the role they play.

                      Fuck, and I cannot emphasize this enough, you.

          3. You didn’t really address what I was saying.

            “If they uphold a statute which is unconstitutional, repeal the statute, and in the repeal resolution pronounce the statute unconstitutional.”

            I have no idea what you are trying to say here.

            1. Sorry…I was alluding to the habit of legislatures passing anything which the courts say is OK, assuming that “that constitutional stuff” is dealt with by the courts. As opposed, say, to considering the constitutional question independently and refusing to approve (or voting to repeal) an unconstitutional statute even if the courts would let them get away with it. Is that a better summary?

              1. Sheesh. You don’t go to the trouble of buying off the umpire in order to refrain from cheating.

                Historically, you’ve got this backwards: Congress and the executive decided they wanted more power than the Constitution gave them, then started staffing the judiciary with judges and Justices who’d agree to it.

                It wasn’t a matter of the court up and deciding to give Congress and the President powers they didn’t want.

                Well, with the solitary exception of the RFRA, where the courts got ahead of the legislature by a decade or so.

    3. “The term “rule of thumb” comes from the fact that at the time, a man was legally allowed to beat his wife so long as the stick he used was no thicker than his thumb. ”

      Urban legend. This article traces its use to over a century before the supposed use by a judge.

      “The phrase itself has been in circulation since the 1600s. The earliest known use of it in print appears in a sermon given by the English puritan James Durham and printed in Heaven Upon Earth, 1658:

      “many profest Christians are like to foolish builders, who build by guess, and by rule of thumb and not by Square and Rule.”

      https://www.phrases.org.uk/meanings/rule-of-thumb.html

      1. So you’re saying they imposed no limits on wife-beating at all?

        1. “moderate” per Blackstone

          1. Ah, yes, I’ve found the relevant passage:

            “…and the huſband may correct hiſ wife provided the correction be moderate, but in order to inflict immoderate ſcourgingſ or puniſhmentſ requireſ a duly-notariſed permiſſion form ſigned by the wife with the inclusion of a ſafe word which muſt be honored.”

      2. As with many phrases it had different meanings at different times, and one of which involved wife beatings. However, be that as it may, my point still stands that we should not be bound by the views of people whose world view is so radically different from ours. Does Blackstone permitting “moderate” wife beating really change that?

        1. None of its meanings meant wife beatings, ever.

          Just pointing out your mistake. Fake anecdotes distract from arguments.

          1. Bob, be really careful with words like none and ever:

            “Fenick traced the earliest possible reference to the 17th century, when one Dr. Marmaduke Coghill, an Irish judge, held that a man who had beaten his wife “with such a switch as the one he held in his hand” was within his matrimonial privilege.

            “In the 18th century a judge named Francis Buller, dubbed “Judge Thumb” by the famous caricaturist James Gillray, was said to have allowed that a man could beat his wife, as long as the punitive stick was no thicker than his thumb. (A witty countess was said to have asked the judge to measure her husband’s thumb exactly, so that she might know the precise extent of his privilege.)

            “Fenick also found three 19th-century cases in America that mention the “rule of thumb,” including an 1868 ruling in North Carolina that “the defendant had a right to whip his wife with a switch no larger than his thumb.”

            https://www.baltimoresun.com/news/bs-xpm-1998-04-17-1998107056-story.html

            Now, the article goes on to say that there’s no conclusive evidence that the expression came from English common law, so the etymology you offer is probably true too. But you can’t say “none” and “ever”.

  3. Um, which one are we talking about again?

    Original Intent
    Original Meaning
    Original Public Meaning
    Semantic Originalism
    Framework Originalism
    Textualism
    Structuralism

    1. Whichever gets one to the desired result, of course.

      1. Right.

        “Originalism” is no more than a place-holder noun, intended to take whatever adjective the so-called “originalist” wants to append to justify the desired result.

  4. “Another way to understand what originalists are doing.”

    Mostly, it seems, they are trying to preserve stale backwardness and bigotry through newfound legal gymnastics.

    1. I’ll regret asking, but which examples do you have in mind?

      1. Kirkland is really consistently delivering the lowest kinda quality on Volokh. Also, his handle seems to be the name of an anime character. I don’t think he needs examples. His inner projection of reality might be is as watered down as an anime/cartoon, which skips most visual details and large parts of proportion/color spectrum.

        1. “name of an anime character”

          Its a character played by Al Pacino in a forgotten movie, And Justice for All. The “Rev.” is a dig at religious believers.

        2. Forgotten movie!! Good god man! A classic. Al Pacino was nominated for an Oscar, and Barry Levinson was nominated for best screenplay. And both Jack Warden and Jeffrey Tambor should’ve been nominated. Directed by the great Norman Jewison.

          1. Thank you for refraining from mentioning Ted Kramer, that talentless hack.

            1. Really. Oh boo hoo, your kid fell off the monkey bars. Rub some dirt in it and stop sniveling.

        3. Please allow me to introduce myself, Ascafih. I am a man of wealth and taste.

          I was around before Zywicki fled, when Groseclose and Lukianoff went down in flames

          I was around when Orin Kerr had his moments of doubt and pain
          and I saw the censorship — Artie Ray joked, and sealed his fate

          Pleased to meet you. Hope you guess my name.

          1. Lmao the keyboard kiddie is building his oh so venerable persona under a perfectly meaningless, anonymous handle. 😀 Do you think you got some status in here, big boy? 😀

            Though it’s good to know your persona will be history by age, soon.

      2. (I’ll admit though that the purity of his drivel turns it into an oddly appealing kind of style, just like a cartoon. It gets old fast though, and I don’t know if I would want to be a perpetual cartoon.)

      3. “I’ll regret asking, but which examples do you have in mind?”

        Prominent examples include race-targeting voter suppression; gun absolutism; evisceration of unions; expansion of special privilege for superstition; and a general effort to demolish a century and more of American progress to flatter obsolete clingers who pine for illusory ‘good old days.’

        1. You still aren’t giving examples, but just a bunch of leftist, virtue-signaling slogans. You are still a cartoon that lives off of false premise and exaggeration.

        2. “Man of wealth and taste” Laughing my fucking ass off 😀 😀 😀
          Yea you’re a big shot LOL

  5. So “originalism” is a fancy, politically useful word for lawyers and judges doing what lawyers and judges routinely do. That is a great advance in our understanding.

  6. Anytime I see the name Michael Dorf, my mind inserts the actor Michael Dorn who played Worf in Star Trek. And then I think of Worf making the associated legal arguments or statements. Which has led me to the conclusion Worf would be a good advocate and Michael Dorf ought to assume the identity of Worf.

    1. He can publish his legal articles in Klingon. Might help the audience to comprehend them.

      1. Frankly that would just be awesome if he did.

  7. What is the principal in political science where the taxpayer has a small interest, like a $1 extra tax, but a special interest has a big interest, like making $millions from a law. So the taxpayer does not exert effort but the special interest works very hard to get the law enacted.

    The lack of taxpayer standing enforces this asymmetry and promotes special interest rent seeking.

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