04 January 2005


It appears that I both miscommunicated in one of my comments… and Professor Solum nonetheless made part of my point for me.

Taking the second point first, Professor Solum remarked:

But original-meaning originalism places no special emphasis on Madison's notes. At best they are evidence of ordinary usage. Just as important as his notes are contemporaneous sources (newspapers, pamphlets, etc.) that give us insight into the ordinary uses of the words and phrases in the constitution.

At least as related to my original intent, this is a non sequitur that indicates a failure to communicate far more fundamental than Luke and the Warden. My point was that some shorthand language that Professor Solum used in his original post represents an unacceptable legal theory—one with far greater prevalence than perhaps Professor Solum sees. He used the singular exclusive article "the" before "original meaning." I pointed out one warrant that sufficiently undermines the warrant for the singular usage; the Professor's rejoinder provides another. My point was that there is no single original meaning, while the Professor's rejoinder makes clear that even granting such a "single" meaning, the multiplicity of possible sources makes discerning that single meaning impossible—and in any event not to a level of certainty sufficient to justify ossified reasoning from that "original meaning." Then, too, the particular kind of sources Professor Solum kindly noted only reinforces my position on the importance of context. I remarked that Madison's notes are the "best evidence" of the meaning afforded by the entire Convention (not necessarily the entire nascent nation) to the Constitution; I did not intend to imply that they were definitive, except perhaps for the purpose of granting the existence of such evidence arguendo to demonstrate that such evidence still would not validate the kind of originalism at issue.

And that is the nub of the disagreement. Professor Solum also remarks:

There are many complexities here, but Petit's move is properly directed at what might be called original-intentions originalism, which does suffer from a collective intent problem. Very few contemporary originalists advocate this view. For quite some time now, the dominant form of originalism has been original meaning originalism, which focuses on the ordinary meaning of the constitutional language at the time it was adopted.

(italics omitted) I'm not sure that's what I said or implied; but let's see where it takes us, in any event. Professor Solum asserts that "very few contemporary originalists advocate [original-intentions originalism]." I'm thinking of 22% or so of a certain august assemblage who have, on several occasions in the last few years, fallen into exactly this mode of reasoning. I suppose that on some basis, that does not refute Professor Solum's argument. And it shouldn't; we're largely in agreement, I think, that "original-intentions originalism" is ordinarily somewhat on the silly side, to be charitable. Unfortunately, my opinion doesn't seem to have much influence in that building right across the street from the Capitol, so perhaps numbers aren't as important. After my rant last week, I'm not going to string-cite opinions, as the "weight of authority" is not the same thing as the weight of the volumes containing such authority; one example may be found at 518 U.S. 415, 448–59.

In any event, what I was trying to say in a much less confrontational way was something like this: "Originalism", at least as it is practiced or espoused, is a logical nullity in legal interpretation. One way or another, "original meaning" is always going to come down to a non-compelling (and non-compelled) judgment call on what the "original text" "means" (neither ignoring nor worshiping Quine and Austin), whatever flavor of "originalism" one prefers. There is no single discernable author of law, even on relatively tiny points, so we have the "collective works" problem acknowledged by Professor Solum. When we can't interview "the author" in the first place to ask a clarifying question or three—even assuming that one would not run into the "author"'s hindsight bias—we're stuck dealing with a necessarily incomplete historical record with our own hindsight biases. Then, too, there's the problem of the intentional fallacy that has been so much better developed in literary than in legal theory. In the end, "originalism" can be a useful tool in defining negative spaces—that is, in excluding certain classes of meanings from a particular inquiry. It can also be a useful tool in seeing when a boundary between interpretive models might be approaching, such as the different methods one must use in interpreting the Banking Clause and Regulation Z. (This is analogous, however loosely, to the differing mathematical concepts one must use when looking at a billiard ball's motion and that of a constituent electron.) However, that is its limit; "originalism" cannot compel a positive meaning to a particular provision—most especially in those contexts in which the polity most often wishes to apply it. "Three fifths of all others" is a good example of this problem; we simply cannot pretend that the "original meaning" of the Bill of Rights can ignore this language, despite its later excision from the Constitution. Neither, however, are we compelled to accept whatever "original meaning" we might therefore ascribe to the Bill of Rights, or any particular provision of it, as currently valid in the face of that excision, or of what we have learned since that time.

I suppose the fortune-cookie form of this argument is "Change is inevitable, grasshopper, so living in the past denies the present." But that sounds a bit too much like the Flexoril talking.