Meaning v. Expectations. Judges as virtual nobodies. A very few examples in response to Mitchell Berman's pertinent question.

michael curtis curtism at
Thu Feb 1 12:20:27 PST 2007

In referring to judges as "virtual nobodies" I did not mean to imply that 
John Taylor or Mitchell Berman actually thought of judges as virtual 
nobodies.  I just meant it seems to me the discussion was ignoring them.

My point (not expressed diplomatically alas) was that the conversation was 
so focused on academics that one could treat
claims that there were those who appeal to the binding effect of original
expectations as straw persons--ignoring the judges who at least sometimes 
quite this way.  What the judges seem to say
and do strikes me as primary data on the question if whether one is dealing 
with a straw man--because the views of judges are quite consequential. 
Furthermore I think of Justices Scalia and Thomas  as judges of great 
importance--because they are the model Pres. Bush has embraced (at least 
before Scalia in Hamdi) and President Bush has appointed many judges, 
including two on the court.  If these appointees don't follow the letter, 
they are often likely to adhere to the spirit of tests these justices 

Caveat:  all of this strikes me as quite slippery & I don't claim any 
expertise on legal theory.  For example, if one defines the original meaning 
of cruel or unusual as what we (of 1791 or 1868) understand today (in 1791 
or 1868) as cruel and unusual--then it seems to me the difference between 
original meaning as a principle and original expectation dissolves--at least 
as to that case.  I assume you could perform the same trick on each clause. 
And one can always say that the appeal to original expectations as an 
apparent clincher does not prove that the judge thought it could never be 
over come.  Indeed, it strikes me that allegedly originalist judges do 
sometimes depart from text and history and likely original meaning, which 
shows they are like the rest of us in not being fully consistent in 
following any one theory.  Alden v. Maine.  If letting other principles 
trump expectations sometimes disqualifies my examples, I agree they are 
disqualified.  Similarly if they are disqualified because a shock the 
framers test is simply one of several claims made.

Anyway, it was quite pertinent for Mitchell Berman to ask for examples and 
here are just a couple--I have not done a comprehensive search.  One modern, 
one mid 20th century, two old.  When I wrote I had not read his fine 
article, but I have now & he was talking mostly about constitutional 
scholars, but also some about judges.  Mitch seems to show that explicitly 
embracing the expectations test is increasingly rare among those who claim 
to be originalists.  It is going out of fashion.  How much this changes 
inclination and results, I do not know.  Anyway, here are a few slender 
examples.  I think one could find lots more, but may be wrong on this.

A modern case.  Here are Thomas, Scalia, and Rehnquist in M.L.B.  Should an 
indigent mother get a free transcript so she can appeal termination of 
parental rights.  Much of Thomas's discussion in dissent is of Washington v. 
Davis and disparate impact.   In dissent Thomas & R, & S,  also attack the 
Griffin line of cases--free transcripts so indigent criminal defendants can 
appeal.  "The Griffin line of cases ascribed to--one might say announced--an 
equalizing notion of Equal Protection that would have startled the 14th 
Amendment's framers."

The clear implication is that the Griffin line of cases was wrong and should 
not be extended--and one basis for this assertion is the that it fails the 
"shock the framers" test.  This looks like appealing to original 
expectations & seems to treat them as conclusive--at least to the extent of 
not continuing down that road.  Two other justices join.  Thomas is inclined 
to overrule the entire line of cases and said so, but the other two did not 
join in his explicit invitation to bring cases challenging Griffin, etc. 
They do join the "shock the framers" test.

Here is another example, but it is not perfectly clear.  Frankfurter in 
Adamson is arguing against total incorporation of the Bill of Rights. He 
uses an original meaning argument--decide by common understanding at the 
time of adoption.  [Then he studiously ignores the P or I clause because it 
might be put to mischievous uses.]  Anyway, he notes that many states "did 
not have the rigorous requirements of the 5th A. for institution criminal 
proceedings though a grand jury.  It could hardly have occurred to these 
states that by ratifying the Amendment they uprooted their established 
methods for prosecuting crime...."  This seems an appeal to expectations, 
and that the amendment should not be read in this case to defeat the 
expectations.  But as to this one, and perhaps every time, there are other 
ways you can frame it--using expectations as one way to throw light on the 
principle.   That may often be the case.

Bradwell v. Illinois--Bradley & two other dissenters find the right to 
pursue an occupation a privilege or immunity--but just for men.  Among other 
reasons, he points out that practicing law has never been viewed as a 
privilege or immunity of women.  Perhaps this is just an historical 
argument, but it overlaps with original expectations I think.  He reads his 
principle as limited by expectations or perhaps just history--this could 
just be no history or tradition of not allowing women to practice which 
doesn't really fit as a pure expectations case.

At any rate you clearly see the expectation test in the decision of the Ill. 
Supreme Court denying Bradwell's application though she met all the listed 
statutory qualifications.  [Admittedly this is statutory construction: 
"when the legislature gave to this court the power of granting licenses to 
practice law, it was not with the slightest expectation that this privilege 
would be extended to women."

You see it also in a case cited in Charles Curtis, A Better Theory of 
Interpretation.  Vand. L. Rev.  There a state constitutional provision or 
statute provided that jurors would be drawn from the list or registered 
voters.  The with the 19th women become voters.  Held:  the drafters would 
have expected voters to be men, so no women jurors.

Raoul Berger does seem to me to embrace the expectations test.  The 14th 
Amendment can not be about integration because the Senate galleries and the 
DC schools were segregated.

I bet you can find lots of examples from judges through history, but I guess 
you can qualify the no one follows the expectations test in such a way that 
it is very hard to falsify.

Michael Curtis

----- Original Message ----- 
From: "John Taylor" <John.Taylor at>
To: <RJLipkin at>; "michael curtis" <curtism at>; "Mitch 
Berman" <MBerman at>; <CONLAWPROF at>; "Stephen M 
Griffin" <sgriffin at>
Sent: Wednesday, January 31, 2007 9:38 AM
Subject: Re: Meaning v. Expectations. Judges as virtual nobodies.

> Well, "virtually no one" was not my phrase but I see Michael's point and
> would certainly not want to be accused of regarding judges as "virtual
> nobodies."  Though I might be mistaken, I thought the original context
> of Mitch's remarks was one where the relevant universe of "somebodies"
> was people who write in a systematic way about the philosophy of
> constitutional interpretation, and more particularly people who attempt
> to justify originalism as a "principled" approach to constitutional
> interpretation that could be applied across the board rather than
> selectively deployed in the service of desired results.  In that
> universe, I do think that virtually everyone winds up being pushed to
> regard many original expectations about application as defeasible.  As
> Larry Rosenthal pointed out in this thread yesterday, even Bork took
> this route in his effort to explain why Brown was correctly decided.
> Perhaps this is an instance of the hippopotamus being fascinated with
> others of its kind, but that kind of preoccupation is understandable
> enough!  It is certainly true that the more inclusively one draws the
> circle of folks to be considered, the more implausible it becomes to say
> that "virtually no one" believes that original expectations about
> application are sacrosanct.  Michael's point was that some judges treat
> them as sacrosanct at least some of the time, and no doubt we have all
> encountered a good number of students who claim to be "originalists" and
> who also seem to think that "but no one thought X was unconstitutional
> in 1791" is a conversation stopper.  Like Mitch, though, I was thinking
> that when pushed on the point theorists of originalist interpretation
> tend to at least say they think that original expectations about
> application are defeasible evidence of original public meaning.  Whether
> the actual practice always coheres with the theory is, of course,
> another question.
> John Taylor
>>>> "michael curtis" <curtism at> 1/30/2007 7:33 PM >>>
> There is much to what John Taylor has to say.  Still, it is a bit odd,
> isn't
> it, that "virtually no one" is a reference to the subset of
> "sophisticated"
> law professors while a number of judges and Justices have by the
> "virtually
> no one" proclamation become virtual nobodies.
> A line from Ogden Nash keeps running through my mind, though I do not
> see it
> as directly relevant.
> "Behold the hippopotamus.
> We laugh as how he looks to us.
> Yet he, no doubt, delights the eye
> Of other hippopotami."
> I guess it is just that we all inhabit our own worlds.  What delights
> and
> intrigues one species may be of less interest to another.
> Michael Curtis
> ----- Original Message ----- 
> From: "John Taylor" <John.Taylor at>
> To: <RJLipkin at>; "michael curtis" <curtism at>;
> "Mitch
> Berman" <MBerman at>; <CONLAWPROF at>; "Stephen
> M
> Griffin" <sgriffin at>
> Sent: Tuesday, January 30, 2007 10:29 AM
> Subject: RE: Meaning v. Expectations
>> What Mitch says below about the totality of the probative evidence
> seems
>> right to me.  My only qualification (and it is a very minor one)
> would
>> be along these lines.  Rubenfeld's idea of the paradigm case is that
> we
>> can get insight into the original public meaning of a provision by
>> understanding the principal evil at which it was directed.  E.g., we
> can
>> gain insight into the Equal Protection Clause by seeing it as
> directed
>> against the Black Codes.  It seems to Rubenfeld (and to me) that any
>> interpretation of the EPC's original public meaning that didn't make
> the
>> Black Codes unconstitutional would have to be mistaken and that this
>> particular application would be nondefeasible evidence of original
>> meaning.  (At least this is true in a practical sense, though I
> guess
>> one could always insist on the point that after Quine nothing can
> really
>> be indefeasible evidence of meaning because all implications are part
> of
>> the web of belief, etc.)  I think, though, that there is often ample
>> room for original expectations to conflict with other evidence of
>> original meaning and that when this is so we face exactly the
>> interpretive choice Mitch describes below.  I also agree that most
>> originalists would at least say this is the way they think about the
>> matter, though (as others on the list have pointed out) sometimes
> the
>> reality belies the theory.  (Arguments along the lines of "provision
> X
>> couldn't bar practice Y because at the time of ratification lots of
>> states engaged in practice Y" are sometimes used without much
>> qualification in judicial opinions and even in scholarship).  I
> suspect
>> Mitch wouldn't really disagree with any of this, though he might
> point
>> out (fairly) that deciding what really ought to count as a paradigm
> case
>> (practically nondefeasible) and what ought to count as a defeasible
>> expectation about application may sometimes be a good deal more
> complex
>> than I have imagined.
>> Re Michael Curtis's examples, they seem to show instances where
> courts
>> did in fact adhere to original expectations about application even
> when
>> plausible arguments about original public meaning might point in the
>> other direction.  It is certainly valuable to point this out, and
> I'm
>> sure he's right that some courts have made this move in the past and
>> continue to make it today.  Nonetheless, I think most of the folks
>> offering sophisticated defenses of originalism today (e.g.,
> Whittington,
>> Caleb Nelson, Randy Barnett) would probably say that it would have
> been
>> perfectly acceptable for an originalist to argue, e.g., that a
> statute
>> saying "draw juror lists from voter rolls" had an original public
>> meaning that was essentially "qualified to vote, qualified to serve
> on a
>> jury" and that this meaning might trump the original expectation that
> of
>> course women would never serve on juries.  I think that for folks
> like
>> Whittington et al. this would be an expectation about original
>> applications that would be merely defeasible evidence of original
> public
>> meaning.
>> John Taylor
>> WVU
>>>>> "Mitch Berman" <MBerman at> 1/29/2007 10:44 PM >>>
>> I suppose that evidence of expected applications could be defeated
> by
>> whatever evidence of semantic intentions or public meaning
>> interpreters
>> might rely upon even in the absence of evidence of expected
>> applications
>> - such as reports from ratification debates in which people say
>> directly
>> that they understand (or intend) a given provision to have a
>> particular
>> meaning, or contemporary dictionaries.
>> Suppose we have evidence from ratification debates that framers and
>> ratifiers intended and understood provision P to mean X, and other
>> evidence that they believed action A to be permitted by P.  If we
>> believe that A would not have been permitted by X even at that time,
>> we
>> are left with a choice: to conclude either the original meaning of P
>> was
>> X and the relevant individuals were wrong about X's extension; or
> that
>> the original meaning was not in fact X but rather another concept or
>> principle, Y, which would in fact have permitted A.  We would choose
>> between these options based on the totality of all probative
> evidence,
>> no?
>> Mitch
>> ________________________________
>> From: michael curtis [mailto:curtism at]
>> Sent: Monday, January 29, 2007 9:12 PM
>> To: Mitch Berman; Griffin, Stephen M; RJLipkin at;
>> Subject: Re: Meaning v. Expectations
>> If no one or virtually no one believes that the framers or ratifiers
>> expected applications of constitutional provisions deserve fidelity
>> from
>> judges, but that expectations are defeasible evidence of original
>> semantic intentions which do deserve fidelity, then it appears that
>> expected applications deserve some sort of presumtive fidelity. But
>> they
>> can be defeated.  By what?
>> Michael Curtis
>> ----- Original Message ----- 
>> From: Mitch Berman <mailto:MBerman at>
>> To: Griffin, Stephen M <mailto:sgriffin at>  ;
>> RJLipkin at ; CONLAWPROF at
>> Sent: Monday, January 29, 2007 2:50 PM
>> Subject: RE: Meaning v. Expectations
>> What I mean by "nobody holds the opposing view" is:  "nobody
>> believes that judges do owe fidelity to the originally expected
>> applications," the key word being *fidelity.*
>> More particularly, I take the following propositions to be
>> true:
>> (1) Virtually everybody (originalist and non-originalist alike)
>> believes that original public meaning and/or original semantic
>> intentions of the framers and ratifiers matter in the sense that
> they
>> ought not to be categorically disregarded;
>> (2) Virtually everybody believes that originally expected
>> applications "matter" in the sense that Doug suggested: such
>> expectations are (defeasible) evidence of the original semantic
>> intentions or original public meaning of the text;
>> (3) Most contemporary originalists believe that judges owe
>> "fidelity" to the original public meaning or to the framers'
> original
>> semantic intentions in the sense that judges are obligated to adhere
>> to
>> such meaning (at least absent extraordinary circumstances); and
>> (4) Virtually nobody believes that judges owe fidelity, in the
>> sense just suggested, to the originally expected applications of the
>> text.
>> Mitch Berman
>> The University of Texas at Austin
>> ________________________________
>> From: Griffin, Stephen M [mailto:sgriffin at]
>> Sent: Monday, January 29, 2007 10:56 AM
>> To: Mitch Berman; RJLipkin at; CONLAWPROF at
>> Subject: RE: Meaning v. Expectations
>> I'm not convinced here, it depends on what you mean by "holds
>> the opposing view."  Certainly arguments on the basis of expected
>> application have been made in specific doctrinal contexts.  I think
>> that's what counts because otherwise it is too easy to create a
>> version
>> of originalism that, while being proof against various objections,
> has
>> nothing to do with how original intent is actually used by lawyers
> and
>> judges.
>> One colloquial form of expected application arguments is "the
>> framers would be rolling in their graves if they knew about X
> decision
>> that held the Constitution means Y."
>> Steve Griffin
>> Tulane Law School
>> ________________________________
>> From: conlawprof-bounces at
>> [mailto:conlawprof-bounces at] On Behalf Of Mitch Berman
>> Sent: Monday, January 29, 2007 10:01 AM
>> To: RJLipkin at; CONLAWPROF at
>> Subject: RE: Meaning v. Expectations
>> The fullest examination of the meaning/application distinction
>> that I know of is Greenberg & Litman, The Meaning of Original
> Meaning,
>> in the Geo. L.J. (1998).
>> I'm not aware of anybody who argues "against the distinction";
>> everybody seems to acknowledge that the distinction is valid.  (If
> I'm
>> mistaken about this, I'd be grateful for the correction.)  A related
>> question (and perhaps, Bobby, this is what you're interested in?) is
>> whether, once the distiinction is recognized, contemporary
>> interpreters
>> ought to follow the original meaning or the originally expected
>> applications (or neither).
>> My sense is that, while some commentators argue persuasively
>> that judges do not owe fidelity to the originally expected
>> applications,
>> (almost) nobody in fact holds the opposing view.  Indeed, many of
> the
>> leading contemporary originalist theorists have vigorously insisted
>> that
>> application originalism is a strawman.  I discuss this issue, with
>> some
>> cites to the relevant literature, in my brief reply to Jack Balkin's
>> critique of application originalism, available here:
>> Mitch
>> Mitchell Berman
>> The University of Texas at Austin
>> ________________________________
>> From: conlawprof-bounces at
>> [mailto:conlawprof-bounces at] On Behalf Of
>> RJLipkin at
>> Sent: Friday, January 26, 2007 2:41 PM
>> Subject: Meaning v. Expectations
>>         I'm looking for sources arguing for and some arguing
>> against the distinction between the meaning of a constitutional
>> provision and the expected application of that provision. Are there
>> some
>> standard texts on this particular issue? Thanks.
>> Bobby
>> Robert Justin Lipkin
>> Professor of Law
>> Widener University School of Law
>> Delaware
>> Ratio Juris, Contributor:
>> <>
>> Essentially Contested America, Editor:
>> ________________________________
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