A NOTE ON THE ORIGINALIST PERSPECTIVE

Written constitutionalism implies that those who make (the legislature), adjudicate (the courts), and enforce (the executive) the law ought to be guided by the meaning of the United States Constitution—the “supreme Law of the Land”—as it was understood by those who wrote and ratified the Constitution and its amendments. As Chief Justice John Marshall said in Marbury v. Madison (1803), “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”

Nonetheless, by a long and complicated development in American legal thought—including the influence of progressivism, pragmatism, sociological jurisprudence, and legal realism—the view of the appropriate place of the original Constitution in our law came to be seriously eroded over the course of the last century. In its stead grew a theory of the Constitution as a “living document” with no fixed meaning, subject to changing interpretations according to the “spirit of the times,” or more particularly, by the views of the judges who decide the cases. That looser standard came to dominate constitutional interpretation particularly during the second half of the twentieth century.

Confronting the theory of the “living Constitution,” a number of scholars began disputing the grounding of much of the modern Supreme Court’s jurisprudence, particularly in the areas of religion, criminal procedure, and abortion. In 1985, Attorney General Edwin Meese III delivered a series of speeches challenging the then dominant view of constitutional jurisprudence. He called for judges to embrace a “jurisprudence of original intention.” Meese’s effort took what had been a growing dispute among academics and historians and thrust it into national prominence. The Attorney General’s call changed the way the Senate and the public looked at the Supreme Court. It derailed the then standard “non-interpretivist” methodology of parsing the Constitution—that is, the idea that Constitutional principles behind the text can be modified and freely adapted to modern problems and sensibilities. Meese’s speech encouraged new research into virtually every clause of the Constitution.1 It affected the way many judicial opinions are written. It would help to make Justice Antonin Scalia’s name a household word.

In point of fact, Attorney General Meese had given impetus to what was already in train. The cases dealing with criminal procedure (and the incorporation of the Bill of Rights into the Fourteenth Amendment), the Establishment Clause, and abortion had already engendered an outpouring of historical investigation—most of it to dispute but some also to defend the respective majority opinions. In sum, scholars and Supreme Court justices were already “doing” originalist research by the time Attorney General Meese gave the project new momentum.

While scholars were researching into the original understanding of particular clauses of the Constitution, the debate over originalism as a theory of interpretation grew apace. Many believe that Robert Bork provided the opening salvo in his 1971 article “Neutral Principles and Some First Amendment Problems,”² followed in 1976 by Justice William Rehnquist’s critique “The Notion of a Living Constitution” and the next year by Raoul Berger’s broadside Government by Judiciary. The growing corpus of historical investigations into original intent, as well as the articulate attacks on the freewheeling methods of interpretation being employed by judges, impelled a counterattack by the defenders of the status quo. Paul Brest, who actually coined the term “originalism,” put forward an articulate critique of originalism in 1980. Thus, by the time Attorney General Meese had made the issue one of national import, the contest had already been joined.³

In part, because of Brest’s critique and that of H. Jefferson Powell, among others, the theory of originalism underwent internal modifications and renewed rigor. As has often been reported, originalism evolved from notions of the “original intent” of the Framers, to that of the ratifiers, to “original meaning,” and to “original public meaning” (the last the most espoused, though there remain prominent academic defenders of “original intent”). Today, there are many different schools of originalist theory, even among those espousing “original public meaning,” as well as critics. Although a few critics of originalism continue to echo Justice William J. Brennan’s unfounded and calumnious criticism of Attorney General Meese’s position as “little more than arrogance cloaked as humility,”⁴ most critics take the theory as a serious intellectual rather than political enterprise.

Originalism in the literature today is in fact the major interpretive theory with which all sides contend. True, Ronald Dworkin continued to embrace a theory of interpretation that included nontextual underlying moral principles. And John Hart Ely’s “representative reinforcing” model, seeking to expand access to and accountability of the political branches, also continues to have adherents, arguably including Justice Stephen Breyer. But it is originalism that frankly occupies pride of place as the focus of interpretive debate among academics.

As noted, some originalists responded to their critics by developing what has been termed the “New Originalism” or the “Doctrine of Original Public Meaning.” Other originalists differentiated between “constitutional interpretation” and “constitutional construction,” and some developed the idea of “original methods originalism,” which includes not only the Framers’ meaning of the text, but also their method of interpreting the text.5

The term the “New Originalism” argues that originalism governs the adjudication of cases under the provisions of the Constitution when provisions are not ambiguous or unclear. Where meaning runs out, however, New Originalists argue that judges must engage in “construction” as opposed to interpretation. Justice Scalia has rejected the concept of construction. Other academics, also rejecting the idea of construction, have developed the idea of “original methods originalism,” which suggests that the meaning of the text is fixed not only by the meaning of words but also by the interpretive methods the Framers expected to apply.⁶

Among the many contributors to the development of an originalist theory of interpretation, the following authors have been particularly prominent (this is but a partial listing): Lawrence A. Alexander, Jack M. Balkin, Randy E. Barnett, Stephen G. Calabresi, Robert N. Clinton, Frank Easterbrook, Jeffrey Goldsworthy, Kurt T. Lash, Gary S. Lawson, Thomas B. McAffee, Michael W. McConnell, Gary L. McDowell, John O. McGinnis, Robert G. Natelson, Michael Stokes Paulson, Michael J. Perry, Roger Pilon, Saikrishna B. Prakash, Stephen B. Presser, Michael B. Rappaport, Ronald D. Rotunda, Richard B. Saphire, Antonin Scalia, Guy Seidman, Lawrence B. Solum, Lee J. Strang, Clarence Thomas, and Keith E. Whittington.

As complex as an originalist jurisprudence may be, the attempt to build a well-grounded nonoriginalist justification of Supreme Court decisions (excepting the desideratum of following stare decisis) is still short of success. At the same time, those espousing originalism have profited from the criticism of nonoriginalists, and the originalist enterprise has become more nuanced and self-critical as research into the Founding period continues to flourish.

Indeed, it is fair to say that this generation of scholars knows more about what went into the Constitution than any other since the time of the Founding. To borrow from Thomas Jefferson, in a significant sense “we are all originalists” now.

This is true of both “liberal” and “conservative” judges. For example, in United States Term Limits, Inc. v. Thornton (1995), Justices John Paul Stevens and Clarence Thomas engaged in a debate over whether the Framers intended the Qualifications Clauses (Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3) to be the upper limit of what could be required of a person running for Congress. In Wallace v. Jaffree (1985), Justice William H. Rehnquist expounded on the original understanding of the Establishment Clause (the First Amendment), which Justice David Souter sought to rebut in Lee v. Weisman (1992). Even among avowed originalists, fruitful debate takes place. In McIntyre v. Ohio Elections Commission (1995), Justices Thomas and Scalia disputed whether the anonymous pamphleteering of the Founding generation was evidence that the free speech guarantee of the First Amendment was meant to protect such a practice. The entire set of opinions, both majority and dissenting, in District of Columbia v. Heller (2008) was an extended foray into the original understanding of the Second Amendment.

Originalism is championed for a number of fundamental reasons. First, it comports with the nature of a constitution, which binds and limits any particular generation from ruling according to the passion of the times. The Framers of the Constitution of 1787 knew what they were about, forming a frame of government for “ourselves and our Posterity.” They did not understand “We the People” to be merely an assemblage of individuals at any one point in time but a “people” as an association, indeed a number of overlapping associations, over the course of many generations, including our own. In the end, the Constitution of 1787 is as much a constitution for us as it was for the Founding generation.

Second, originalism supports legitimate popular government that is accountable. The Framers believed that a form of government accountable to the people, leaving them fundamentally in charge of their own destinies, best protected human liberty. If liberty is a fundamental aspect of human nature, then the Constitution of 1787 should be defended as a successful champion of human freedom. Originalism sits in frank gratitude for the political, economic, and spiritual prosperity midwived by the Constitution and the trust the Constitution places in the people to correct their own errors (and to expand the kinds of persons who constitute “the People”).

Third, originalism accords with the constitutional purpose of limiting government. It understands the several parts of the federal government to be creatures of the Constitution and to have no legitimate existence outside of the Constitution. The authority of these various entities extends no further than what was devolved upon them by the Constitution. “[I]n all free States the Constitution is fixd,” Samuel Adams wrote, “& as the supreme Legislative derives its Power & Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation.”7

Fourth, it follows that originalism limits the judiciary. It prevents the Supreme Court from asserting its will over the careful mix of institutional arrangements that are charged with making policy, each accountable in various ways to the people. Chief Justice John Marshall, overtly deferring to the intention of the Framers, insisted that “that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” In words that judges and academics might well contemplate today, Marshall said in Marbury v. Madison,

           Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

Fifth, supported by recent research, originalism comports with the understanding of what our Constitution was to be by the people who formed and ratified that document. It affirms that the Constitution is a coherent and interrelated document, with subtle balances incorporated throughout. Reflecting the Founders’ understanding of the self-motivated impulses of human nature, the Constitution erected devices that work to frustrate those impulses while leaving open channels for effective and mutually supporting collaboration. It is, in short, a remarkable historical achievement, and unbalancing part of it could dismantle the sophisticated devices it erected to protect the people’s liberty. Originalism includes the constitutional amendments, many of which have significantly changed the content of the Constitution of 1787. In sum, originalism is not about what the nonoriginalists call “framer worship” and instead is about giving effect to whatever is legally placed into the Constitution. In fact, further originalist research since the time of Mr. Meese’s speech has led many to contend that incorporation of the Bill of Rights to limit the states was in fact intended by the framers of the Fourteenth Amendment.

Sixth, originalism, properly pursued, is not result-oriented, whereas much nonoriginalist writing is patently so. If evidence demonstrates that the original meaning of the commerce power, for example, was broader than we might wish, then the originalist ethically must accept the conclusion. If evidence shows that the commerce power was to be more limited than it is permitted to be today, then the originalist can legitimately criticize governmental institutions for neglecting their constitutional duty. In either case, the originalist is called to be humble in the face of facts. The concept of the Constitution of 1787 as a good first draft in need of constant revision and updating—encapsulated in vague phrases such as the “living Constitution”—merely turns the Constitution into an unwritten charter to be developed by the contemporary values of sitting judges.

Discerning the Founders’ original understanding is not a simple task. There are the problems of the availability of evidence; the reliability of the data; the relative weight of authority to be given to different events, personalities, and organizations of the era; the relevance of subsequent history; and the conceptual apparatus needed to interpret the data. Originalists differ among themselves on all these points and sometimes come to widely divergent conclusions. Nevertheless, the values underlying originalism do mean that the quest, as best as we can accomplish it, is a moral imperative.

How does one go about ascertaining the original meaning of the Constitution? All originalists begin with the text of the Constitution, the words of a particular clause. In the search for the meaning of the text and its legal effect, originalist researchers variously look to some or all of the following (with debated priority):

           •    The evident meaning of the words.

           •    The meaning according to the lexicon of the times.

           •    The meaning in context with other sections of the Constitution.

           •    The meaning according to the Framer who suggested the language.

           •    The elucidation of the meaning by debate within the Constitutional Convention.

           •    The historical provenance of the words, particularly their legal history.

           •    The words in the context of the contemporaneous social, economic, and political events.

           •    The words in the context of the Revolutionary struggle.

           •    The words in the context of the political philosophy shared by the Founding generation or by the particular interlocutors at the Convention.

           •    Historical, religious, and philosophical authority put forward by the Framers.

           •    The commentary in the ratification debates.

           •    The commentary by contemporaneous interpreters, such as Publius in The Federalist Papers.

           •    The subsequent historical practice by the Founding generation to exemplify the understood meaning (e.g., the actions of President Washington, the First Congress, and Chief Justice Marshall).

           •    Early judicial interpretations.

           •    Evidence of long-standing traditions that demonstrate the people’s understanding of the words.

As passed down by Sir William Blackstone and later summarized by Justice Joseph Story, similar interpretive principles guided the Framing generation itself. It is the legal effect of the words in the text that matters, and its meaning is to be determined by well-known and refined rules of interpretation, supplemented where helpful by the understanding of those who drafted the text and the legal culture within which they operated. As Chief Justice Marshall put it,

           To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;—is to repeat what has been already said more at large, and is all that can be necessary. (Ogden v. Saunders, Marshall, C. J., dissenting (1827))

Marshall’s dialectical manner of parsing a text, seeking its place in the coherent context of the document, buttressed by the understanding of those who drafted it and the generally applicable legal principles of the time are exemplified by his classic opinions in Marbury v. Madison, McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Barron v. Baltimore (1833). Both Marshall’s ideological allies and his enemies, such as Alexander Hamilton and Thomas Jefferson, utilized the same method of understanding.

Originalism does not remove controversy or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the “rule of men.”

With its format of brief didactic essays, the work that follows does not seek to be a thorough defense of originalism against its critics, nor does it choose which strains of originalism or which authorities are to be accorded greater legitimacy than others. But it does respect the originalist endeavor. Each contributor was asked to include a description of the original understanding of the meaning of the clause, as far as it can be determined, and to note and explain any credible and differing originalist interpretations.

It is within this tradition that this volume is respectfully offered to the consideration of the reader.

David F. Forte            

1    Several of Attorney General Meese’s speeches are reprinted in Steven G. Calabresi, ed., Originalism: A Quarter-Century of Debate (Washington, D.C.: Regnery Publishing, 2007).

2    Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (Fall 1971).

3    William H. Rehnquist, The Notion of a Living Constitution, 54 Texas Law Review 693 (1976); Roaul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997); Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980).

4    Justice William J. Brennan Jr., The Constitution of the United States: Contemporary Ratification, Address at Georgetown University (Oct. 12, 1985) reprinted in 19 U.C. Davis L. Rev. 2, 7 (1985).

5    Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).

6    See, e.g., John O. McGinnis and Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 N.W. L. Rev. 751 (2009).

7    Samuel Adams, “Massachusetts House of Representatives, Circular Letter to the Colonial Legislatures, 11 Feb. 1768,” in The Founders’ Constitution, eds., Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 632-33.