Non-originalist opinions

Tue Apr 21 16:48:52 PDT 2009

 I find it very helpful in debates like this to recall that the term
"meaning" is itself ambiguous.  One sense of meaning is the semantic sense:
the linguistic meaning of the constitution provides its semantic content.  A
second sense of meaning is the teleological sense: we sometimes refer to the
purpose of an action or utterance as its "meaning."  A third sense of
meaning is the applicative sense: when we say things like "what does the
Second Amendment mean for handgun bans," we are asking a question about its
legal implications and not about its semantic content.

I take it that Mark's point is clearly true if we are discussing meaning in
the semantic sense--the linguistic meaning of a new amendment would be a
function of linguistic practice at the time the provisions were framed and
ratified.  But it is not clear that the expectations of the framers and
ratifiers necessarily provide the "meaning" in the applicative sense.
That's because it is possible to frame a provision in a way that it does not
"live up to your expectations"--since one can use vague or ambiguous
language or simply draft in a way that produces unintended and unanticipated
consequences.

I spell out the three senses of meaning in "Semantic Originalism,"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244.

On Tue, Apr 21, 2009 at 6:25 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

>  Suppose an amendment to the Constitution is proposed this year and
> ratified by sufficient states in 2010 to become part of the Constitution.
> Would anyone deny that the amendment should be interpreted to mean what the
> ratifiers in the states reasonably thought it meant when they ratified it,
> if such a meaning can be found? What about an amendment ratified five years
> ago? Ten years ago? At what point does the meaning change to what someone,
> or perhaps five of nine Someones, think the amendment should mean?
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
> P.S. If the new meaning is supported by seven-of-nine, would resistance be
> futile? (With apologies for the Star Trek reference...)
>
>
>  ------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Miguel Schor
> *Sent:* Tuesday, April 21, 2009 3:49 PM
> *To:* Lori Ringhand; Nareissa L. Smith
>
> *Cc:* 'CONLAWPROFS professors'
> *Subject:* Re: Non-originalist opinions
>
> I agree with Lori and thought Jamal Greene's paper very interesting as
> well.  I have a different take on why originalism is such a divisive issue
> in the US and of little moment abroad in a paper (please excuse the
> shameless self-promotion, :) I will soon post on SSRN entitled "The
> Strange Cases of Marbury and Lochner in the Constitutional Imagination."
> The argument is that Lochner exposed the problem of judicial power not only
> in the US but abroad as well.  Polities abroad generally dealt with this
> problem by crafting stronger mechanisms of political accountability for
> courts.  The US, on the other hand, is stuck with a court that is remarkably
> free of political restraints compared to other national high courts.  Thus,
> we turned to judicial self-regulation.  At best, originalism is a second
> best (and highly divisive) solution to the problem of power as external
> constraints are generally better than internal ones.
>
> Miguel Schor
> Associate Professor of Law
> Suffolk University Law School
> 120 Tremont St.
> Boston, MA 02108
> 617-305-6244
> SSRN Webpage http://ssrn.com/author=469730
>
>
> ---- Original message ----
>
>
> *Date:* Tue, 21 Apr 2009 14:26:23 -0400
> *From:* Lori Ringhand <ringhand at uga.edu>
> *Subject:* Re: Non-originalist opinions
> *To:* "Nareissa L. Smith" <nsmith at fcsl.edu>
> *Cc:* "'CONLAWPROFS professors'" <conlawprof at lists.ucla.edu>
> >Jamal Greene has a very interesting paper up on SSRN regarding the
> >question of why it is that the US, somewhat uniquely among
> >constitutional democracies, embraces originalist arguments. I've copied
> >the abstract and link below.
> >
> >http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1357541
> >
> >For all its proponents' claims of its necessity as a means of
> >constraining judges, originalism is remarkably unpopular outside the
> >United States. Recommended responses to judicial activism in other
> >countries more typically take the form of minimalism or textualism. This
> >Article considers why. I focus particular attention on the political and
> >constitutional histories of Canada and Australia, nations that, like the
> >United States, have well-established traditions of judicial enforcement
> >of a written constitution, and that share with the United States a
> >common-law adjudicative norm, but whose judicial cultures less readily
> >assimilate judicial restraint to historicist claims. I offer six
> >hypotheses as to the influences that sensitize our popular and judicial
> >culture to such claims: the canonizing influence of time; the
> >revolutionary character of American sovereignty; the rights revolution
> >of the Warren and Burger Courts; the politicization of the judicial
> >nomination process in the United States; the accommodation of an
> >assimilative, as against a pluralist, ethos; and a relatively
> >evangelical religious culture. These six hypotheses suggest, among other
> >things, that originalist argument in the United States is a form of
> >ethical argument, and that the domestic debate over originalism should
> >be understood in ethical terms
> >
> >Nareissa L. Smith wrote:
> >>
> >> I’ve been following this thread with interest and a few points strike
> >> me. I guess these are questions for those that consider themselves
> >> true originalists.
> >>
> >> 1. As Professor Schor said, and I do not believe this has been
> >> addressed, why are we as a nation so tied to the concept of
> >> originalism? This is something I have difficulty understanding,
> >> especially since originalists seem to believe that any constitutional
> >> argument can be won simply by saying “this is what the framers
> >> intended.” The problems with this approach are manifold, but include,
> >> inter alia: 1) the fact that the founders were human; 2) the fact that
> >> on some points, the historical evidence and even the plain meaning of
> >> the words can be disputed; and 3) the constitution was a limited
> >> document, and could not and did not foresee much of what happened in
> >> American history, thus the 20-odd amendments that followed. So, my
> >> question is, even if one could determine that “X” was the original
> >> intent of the framers, why should we be bound by that as if it is the
> >> ultimate trump card? I’m not saying it shouldn’t be considered, but
> >> why MUST this evidence carry the day, rather than being one factor?
> >>
> >> 2. I don’t think that the originalists have fully decided how to deal
> >> with the Fourteenth Amendment. My old Crim Pro professor Andy Taslitz
> >> has written about how the Fourteenth Amendment “mutated” the Fourth
> >> Amendment into something the Founders could not have foreseen. Why is
> >> this not so with the rest of the document?
> >>
> >> 3. Women were completely excluded from the document (See Abigail Adams
> >> <http://www.thelizlibrary.org/suffrage/abigail.htm>) and many of the
> >> Founders owned slaves. For me, that makes much of the Founder’s intent
> >> on these issues at best non-existent, and at worst evinces the clear
> >> intent that these groups were to be excluded from the body politic for
> >> all time. I actually had the opportunity to ask Justice Scalia if an
> >> originalist interpretation could garner rights for these groups, and
> >> he told me how he thought an originalist might decide Brown, but it
> >> wasn’t the same. Can someone here address this question?
> >>
> >> For my two cents, I definitely think originalism has its place. But
> >> why can’t it be a more limited place? Can we agree that originalism
> >> should carry more weight when say, we are talking about qualifications
> >> to hold office, which change little over time, and less weight when we
> >> discuss current social issues? Again, why must originalism be the
> >> alpha and omega of the discussion?
> >>
> >> Nareissa
> >>
> >> Nareissa L. Smith
> >>
> >> Assistant Professor
> >>
> >> Florida Coastal School of Law
> >>
> >> 8787 Baypine Rd.
> >>
> >> Jacksonville, FL 32256
> >>
> >> (904) 680-7674
> >>
> >> *From:* conlawprof-bounces at lists.ucla.edu
> >> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Steven Jamar
> >> *Sent:* Tuesday, April 21, 2009 12:32 PM
> >> *Cc:* 'CONLAWPROFS professors'
> >> *Subject:* Re: Non-originalist opinions
> >>
> >> I agree entirely that there is "a lot of material to sift through" to
> >> understand the meaning of the Constitution. This little side dispute
> >> between Prof. Green and me started when he took issue with my
> >> assertion that we today are not bound to an understanding of the
> >> Constitution as it existed in a far different time from today by
> >> citing his interesting article on interpretation and claiming that in
> >> fact we are bound by the Constitution because of the oath provision.
> >>
> >> My point was and is on the substantive one that we are and cannot be
> >> bound by precisely what was meant 230 years ago. From Prof. Green's
> >> latest post, I think he was and is talking about something else.
> >>
> >> Steve
> >>
> >> --
> >>
> >> Prof. Steven D. Jamar vox: 202-806-8017
> >>
> >> Associate Director, Institute of Intellectual Property and Social
> >> Justice http://iipsj.org
> >>
> >> Howard University School of Law fax: 202-806-8567
> >>
> >> http://iipsj.com/SDJ/
> >>
> >> "The aim of education must be the training of independently acting and
> >> thinking individuals who, however, see in the service to the community
> >> their highest life achievement."
> >>
> >> Albert Einstein
> >>
> >> On Apr 21, 2009, at 12:14 PM, Christopher Green wrote:
> >>
> >>
> >>
> >> "The binding clause says nothing whatsoever about [the] meaning of the
> >> constitution." I don't think that Article VI on its own tells us the
> >> nature of the Constitution, but it does give us a phrase for what is
> >> binding--"this Constitution"--and looking at how that phrase is used
> >> elsewhere can tell us what it means. There's a lot of material to sift
> >> through. See here
> >> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162> at 37-55.
> >>
> >> As to the reductio-ad-anarchy, I would distinguish between issues
> >> about what is /interpretively binding/--i.e., what we are doing when
> >> we interpret the Constitution, and what sort of entity the
> >> Constitution presents itself as--from issues about the /occasions/ of
> >> constitutional interpretation--at issue in cases like _Marbury_,
> >> executive-branch interpretation, precedent, and so on. I'm talking
> >> about what we should do once we decide that we're in the
> >> interpretation business, not the precise contours of when we should be
> >> in that business. See here
> >> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162> at 10-11.
> >>
> >> ------------------------------------------------------------------------
> >>
> >> *From:* conlawprof-bounces at lists.ucla.edu
> >> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Steven Jamar
> >> *Sent:* Tuesday, April 21, 2009 10:49 AM
> >> *To:* CONLAWPROFS professors
> >> *Subject:* Fwd: Non-originalist opinions
> >>
> >> Of course we are bound to its meaning. But to say we are bound to its
> >> meaning again does not say anything at all about how to determine that
> >> meaning or what that meaning is. The binding clause says nothing
> >> whatsoever about meaning of the constitution.
> >>
> >> Under but the most modest extension of Prof. Green's strained
> >> interpretation, U.S. officials would be bound to ignore precedent and
> >> /Marbury/ and all else but their own interpretation of the meaning
> >> because all meaning comes from the binding clause oath and nothing
> >> else matters. There is nothing at all in the constitution that says
> >> anything about judicial supremacy and nothing about being bound by
> >> supreme court precedent and interpretation.
> >>
> >> That level of anarchy cannot be what the founders intended, or said.
> >> Binding or not.
> >>
> >> Steve
> >>
> >> On Apr 21, 2009, at 11:15 AM, Christopher Green wrote:
> >>
> >>
> >>
> >> What does it mean to be bound by a Constitution, if not to be bound by
> >> its meaning? It doesn't mean to tie a copy of the Constitution to
> >> one's wrist. See here
> >> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1227162> at 21-22.
> >> Of course, we need to do more work to find out what exactly "this
> >> Constitution" refers to--i.e., what the Constitution makes binding.
> >> See the rest of the article for that.
> >>
> >> ------------------------------------------------------------------------
> >>
> >> *From:* conlawprof-bounces at lists.ucla.edu
> >> <mailto:conlawprof-bounces at lists.ucla.edu>
> >> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Steven Jamar
> >> *Sent:* Tuesday, April 21, 2009 10:05 AM
> >> *Cc:* conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> >> *Subject:* Re: Non-originalist opinions
> >>
> >> Prof. Green makes my point more elegantly than I could. Of course we
> >> are bound by the Constitution. But to say that is to say nothing at
> >> all about the meaning of the constitution or its interpretation.
> >>
> >> Steve
> >>
> >> _______________________________________________
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> >> ------------------------------------------------------------------------
> >>
> >> _______________________________________________
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