Thanks for joining this episode of the No. 86 lecture series, where we explore the method
and purpose of Originalism.
Today’s episode features Ilan Wurman, an Associate Professor of Law at the Sandra Day
O'Connor College of Law at Arizona State University, where he teaches administrative law and constitutional
law.
He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge
2017).
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
Can you tell us what Originalism is in a nutshell?
Originalism is the idea that we should interpret the Constitution with its original meaning,
with the meaning its words would have had to the Framers who wrote it, and the public
that ratified it.
But really originalism is an even more fundamental idea, it's the idea that there's a difference
between what the law is and what the law ought to be.
And this is in fact how we view most laws.
All other laws, whether enacted by Congress or treaties or contracts, we first ask what
does the law actually say?
What does it do?
And then it's a separate question whether that's a good law and whether that law ought
to be the law.
The Constitution, which itself is a law, a law we the people enacted to bind our legal
officials, should be interpreted in the same way.
When interpreting the Constitution, we first must ask what does it actually say?
What does it do?
What legal effect does it have?
And it's a separate question whether that Constitution is a good constitution.
And the way we figure out what the Constitution says is the same way we figure out what any
instruction intended for a public audience says.
This instruction could be a recipe that you find in your great grandmother's attic that's
dated from 1789.
How would you interpret a recipe that was intended as an instruction to other chefs
and to the public?
Well, you would interpret it with a public meaning, not a secret meaning, otherwise it
would be a very poor recipe indeed.
And you interpret it with the meaning it had at the time to the people who wrote the recipe.
After all, if the recipe says to add ingredient X but you don't like ingredient X today, so
you take it out and put in ingredient Y.
That's not interpreting the Constitution or interpreting the recipe, that would be changing
the recipe.
The same kind of argument can be made about interpreting laws and the Constitution, more
generally.
So is Originalism itself internal to the Constitution?
Does the Constitution itself say anything about how it should be interpreted?
The Constitution itself says nothing at all about how it is to be interpreted, but the
Constitution is a law and it should be interpreted just as other laws and other legal instruments
are interpreted.
How are other legal instruments interpreted in our legal system?
They are interpreted by determining what the words mean, by determining the original public
meaning of the laws in order to try to ascertain approximately what the intention of the legislature
was.
That's how we interpret contracts, we try to figure out the intent of the parties by
interpreting the meaning of the words that they used.
That's how we interpret laws, we try to figure out what Congress tried to do by figuring
out what the meaning of the words that Congress used is.
Similarly, the Constitution being like these other laws is simply a law enacted by people
with intentions and the way we interpret it is through the words those people used and,
in particular, the public and objective meanings of those words.
So after we’ve discovered the original meaning of the Constitution, what’s the next step
for an originalist?
Only then do we ask a secondary question, should that law still be the law?
These questions are distinct, but ordinarily even when we think a law enacted by Congress
isn't a very good law and should be changed, we still feel bound by that law.
In other words, we feel bound by Congress's bad laws as well as its good laws, as long
as those laws were enacted by a process that we consider sufficient to confer legitimacy
on those laws.
So in our legal system we believe that so long as a law is enacted by Congress, by two
houses of Congress and signed by the President, it is sufficiently legitimate to be binding
upon us even if we don't like what the law says.
The same kind of argument can be made about the original Constitution.
Even if we don't like everything the original Constitution says, even if we don't like all
the provisions of the original Constitution as it's been properly amended, even if we
don't like all of it, is there some sense in which we are still bound by the entirety
of the Constitution?
And it seems to me that so long as the Constitution accomplishes the objectives that a constitution
must accomplish to be a successful constitution for a free society.
If the constitution successfully balances the competing objectives of self-government
on the one hand and preservation of liberty on the other, then it seems to me that the
Constitution is in fact binding upon future generations.
But didn’t even the Founders disagree about whether the Constitution should bind future
generations?
In defense of living constitutionalism, scholars often invoke this letter that Thomas Jefferson
wrote to James Madison in 1789 in which Thomas Jefferson said that the earth belongs to the
living, that the dead have neither power nor rights over it.
This letter is often quoted for the proposition that we shouldn't be bound by the dead hand
of the past, by the dead hand of the Constitution.
And that the Constitution should instead be a living, breathing document subject to changing
interpretations over time.
But what people often forget is Madison's reply to Jefferson and in that reply Madison
said, "That if the earth be the gift of nature to the living, then their title can extend
to the earth in its natural state only.
The improvements made by the dead," Madison said, "form a debt against the living who
take the benefit of them.
This debt cannot be otherwise discharged than by a proportionate obedience to the will of
the authors of the improvement”--by a kind of originalism.
So the question for originalists is whether the Constitution is in fact that kind of improvement
upon the natural condition of the world that forms a debt against future generations?
The Constitution does form this debt if it successfully accomplishes and successfully
achieves what a constitution for a free society must achieve to be a good constitution for
that society.
A constitution for a free society has to balance the competing imperatives of a free society
has to balance on the one hand the creation of a regime of self-government but on the
other a preservation of a large measure of natural liberty.
These two objectives are competing, are in tension with each other, and it is no easy
task to establish a constitution that successfully balances them.
If our Constitution does successfully balance them, then it is that kind of improvement
that Madison described as forming a debt against future generations.
Do all originalists agree with this defense of originalism?
There are different kinds of defenses of originalism.
Some scholars make purely conceptual claims, this is just how language works.
And that's probably right, but on the other hand, non-originalists will say that the case
for non-originalism entails judges changing the Constitution and needing to update the
Constitution.
So it doesn't matter that it's just how language works if non-originalists all accept that;
they actually want to update the meaning of the Constitution over time.
Other originalists thus make normative defenses of the Constitution because an originalist
approach would be normatively more desirable because it would lead to better results.
In reality, originalists need to make both kinds of defenses, originalists need conceptual
defenses and normative defenses.
If the non-originalist view is that it doesn't matter how we ordinarily interpret language
because judges are in an activity of updating the meaning of the Constitution anyway, there
needs to be some normative argument made for why judges should not be changing the meaning
of the Constitution.
Why we should be bound by the Constitution as written, the Constitution we already have.
Is there a difference between textualism and originalism?
Many scholars believe that there is a difference between textualism and originalism.
If textualism is different from originalism, then I suppose textualism means looking strictly
at the text and only at the text to determine what the text means.
But how do we determine what texts mean in ordinary documents or in ordinary communication?
Well, words only have meaning in context, text only has meaning in context.
It helps to know why someone spoke or wrote certain words, it helps to know what purposes
they wrote it for, it helps to know what background assumptions that they had, it helps to know
the historical context, and the historical background.
Well, if all of these tools are useful to figuring out what the text actually means,
well then textualism starts to look a lot like originalism, and I'm not sure that there's
a difference between the two.
Is one of originalism’s key virtues that it is more constrained and determinate than
alternative methods of constitutional interpretation?
Originalism does not mean that there will be a single determinant right answer every
time.
Often interpreting the original public meaning of the words leads us to conclude that there
is indeterminacy.
Words often leave room for vagueness, they leave ambiguities.
So texts can be indeterminate.
Supporting an originalist interpretation of the Constitution does not mean that we can't
recognize these indeterminacies, the question is how to resolve those indeterminacies.
It could be, in other words, that the best originalist interpretation of a particular
constitutional provision will lead to a range of plausible originalist understandings.
It's true that often some originalists will claim that originalism always leads to one
determinant right answer and that's a virtue of originalism.
But once we grant the existence of indeterminacy, it very well could be that originalism will
lead to a range of plausible answers.
This range will often exclude prevailing non-originalist interpretations but, nevertheless, it will
be capacious enough to include multiple possible interpretations.
So what is an Originalist to do in the event of indeterminacy?
The Founders themselves recognized that the Constitution would be indeterminate.
In Federalist 37, Madison has some beautiful passages about the indeterminacy of language,
but they also thought about how to resolve these indeterminacies.
The Founders most likely adhered to a concept that we might call liquidation.
They would liquidate the meaning, determine the meaning of ambiguous or indeterminate
constitutional provisions through or a series of discussions and adjudications.
In other words, if there was an uncertainty into the meaning as to the meaning of the
Constitution, Congress would debate on what that best meaning should be within the realm
of that indeterminacy.
It still has to be textually or linguistically plausible.
The President could also weigh in on this dispute and the courts could also weigh in
on this dispute.
And over time over a series of these discussions and adjudications and deliberation, the meaning
of the Constitution and its ambiguous parts or its indeterminate parts would become fixed
and determined.
One example of liquidation, this practice of liquidation, is the debate over the constitutionality
of the Bank of the United States.
The very first Congresses debated whether Congress had the power to incorporate a national
bank.
It's not specifically enumerated but it might be necessary and proper to several other powers
thus this was indeterminate, it was unclear whether Congress did or did not have this
power.
Well, Congress and the executive debated and deliberated and concluded when all the constitutional
arguments were on the table that Congress does have this power and Congress enacted
the National Bank.
And James Madison, when he was President two decades later, refused to veto on constitutional
grounds the Bank of the United States even though he as a representative had opposed
it on constitutional ground.
Why?
Because he claimed that the question or the constitutionality of the bank had been settled
through the series of discussions and adjudications that had occurred in prior Congresses and
with prior Presidents.
Were the Founding Fathers Originalists?
Opponents of originalism often cite this 1985 article by H. Jefferson Powell showing that
the Founders did not intend for their intentions to govern.
In other words, the Founders weren't themselves originalists and so originalism is self-defeating.
But all H. Jefferson Powell shows in this article is that the Founders didn't intend
for well their intentions to govern.
But originalism is about discerning the original public meaning of the text, not about giving
legal effect to the secret intentions of the Founding Fathers.
So in that very same article, H. Jefferson Powell actually showed how the Founders expected
the Constitution to be interpreted.
And it turns out that they expected it to be interpreted by judges discerning the original
public meaning of the words Isn’t the Constitution outdated?
Don’t we need to adapt it to modern circumstances?
Even though the Constitution should be interpreted as other laws are interpreted with their original
public meaning, this does not mean that the Constitution can't adapt to future circumstances.
In fact, the Framers did at least three things in the Constitution that allowed it to be
flexible and adaptable into the future.
First the Framers wrote a lot of the constitutional provisions in broad terms.
They said Congress shall make no law abridging the freedom of speech.
They didn't say Congress shall make no law abridging the freedom to write with quill
and parchment thus the First Amendment applies to the Internet.
The Fourth Amendment protects against unreasonable searches and seizures.
This protects GPS devices placed on automobiles, not just horse-drawn carriages.
So through these more expansive standards and principles, the Founders ensured that
the Constitution provisions would be able to apply to new circumstances even if the
meaning itself did not change.
The other great genius of the Founders was that in the Constitution they wrote, they
didn't require very much.
The Constitution only protects those rights most essential to a free society, the rights
to speech, religion and press, the rights of criminal defendants, before they are deprived
of life, liberty, or property.
But other than that, the Founders left most societal questions to the democratic process
precisely because they expected that we would evolve and progress over time.
So the Constitution, the Founders wrote, may be a dead Constitution but the democracy that
the Constitution created is very much a living and breathing democracy.
Third and finally, we can't forget the amendment process.
People often lament that the amendment process is so hard to use but the amendment process
was supposed to be hard to use.
Because the Founders expected us to evolve and circumstances to change in other ways.
They wrote the Constitution in varying levels of generality, they gave a lot to the democratic
process but the amendment process was reserved only for those most fundamental questions
about the nature of regime.
And that's in fact how the amendment process was used.
The amendment process was used to give us a bill of rights, it was used to abolish slavery,
it was used to apply the protections of the federal government against the state governments
as well.
It was used to enfranchise African-Americans, it was used to enfranchise women.
These fundamental changes to the regime is what the amendment process was for and it's
what the amendment process has in fact been used for.
Thank you for listening to this episode of the No. 86 Lecture series: Continuing the
Conversation in the 85 Federalist Papers about Originalism.
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