FW: Are previously excluded groups part of the "public" that determines meaning?

Mark Stein chmyankel at live.com
Sat Oct 17 11:06:02 PDT 2009

The below message from Malla Pollack is reposted here with permission.


Date: Sat, 17 Oct 2009 10:27:04 -0700
From: mallapollack at yahoo.com
Subject: Re: Are previously excluded groups part of the "public" that determines meaning?
To: jon.roland at constitution.org; chmyankel at live.com
CC: rb325 at law.georgetown.edu; lsolum at gmail.com; kurt.lash at lls.edu; glawson at bu.edu

I understand (and disagree with) the argument that only the
elite's meaning counts, but that is quite different from assuming the
beliefs or word-usage of a group without doing extensive research.  I
am actually in the middle of a project of reading works were most
likely to reflect lower-class word use to see if certain key words
might have had a different meaning.  (This has been unduly delayed for
various reasons).  However, before I put I had to put it aside I had
found at least some support for the proposition that different groups
of writings supported different meanings for certain relevant words.  

By the way, reading and writing were less widely spread (and less important) in 1780s than now. Being unable to
read in the 1780s did not equate with being an idiot.  Nor did membership
in most of the other listed groupings. 

Malla (Pollack)

mallapollack at yahoo.com 

From: Jon Roland <jon.roland at constitution.org>
To: Mark Stein <chmyankel at live.com>
Cc: Malla Pollack <mallapollack at yahoo.com>; Randy Barnett <rb325 at law.georgetown.edu>; Lawrence Solum <lsolum at gmail.com>; Kurt Lash <kurt.lash at lls.edu>; Gary Lawson <glawson at bu.edu>
Sent: Sat, October 17, 2009 11:52:06 AM
Subject: Re: Are previously excluded groups part of the "public" that determines


As an originalist who blends the public meaning, understanding, and
intent schools, depending on the provision and historical context, I
submit your point is underspecified, because to examine the impact of
including excluded groups you have to examine how they would have
understood the language differently than the Framers or Ratifiers did.
If they would have understood it the same way, then excluding them
would make no difference.

Consider the following excluded groups, and try to match each with
clauses of the Constitution or amendments they would have understood

1. Slaves

2. Women

3. Children

4. Other dependents, such as employees, indentured servants, etc.

5. Retarded or mentally ill persons

6. Illiterate persons

7. Propertyless persons

8. Native Americans and other disfavored ethnic groups

All of these had their rights, at least to vote, disabled, either as a
matter of law or as a matter of practice, but mainly by the states.
Rights for none of them are explicitly disabled at the federal level.
The Framers carefully avoided the word "slave" in drafting the
Constitution, and although some clauses referenced the practice
obliquely, the language actually used, if carried to its logical
conclusion, would forbid slavery, just as the language of the 14th
Amendment would provide for equal rights for women, even though that
was not contemplated by its framers. In other words, we have a
discrepancy between the words actually chosen and the practical intent
of the framers, at least for their own generation. The framers adopted
language that aspired to an eventual state of affairs that they were
not prepared to fully implement in their own time, but which they
recognized as morally right, and hoped for (it they thought about it)
in the distant future when they were all dead. The Framers temporized.

So what is the "public meaning" of language that was understood in a
way that was inconsistent with contemporary practice that the framers
hoped would eventually end but not in their own time? Remember that
even leading slaveholders detested slavery and looked forward to a day
when it would be ended.

Most of those groups disabled were regarded as naturally non sui
juris, like children still are today. Most of their disablements,
when codified in law, were simply extensions of traditional attitudes
concerning what attributes one had to have to be a fully functioning
citizen, such as the ability to fight, in war or as militia. Women who
demanded the privilege of voting were not rejected because they lacked
intelligence or mature wisdom, but on the grounds they were not willing
or able to take up arms in war. It was when women demonstrated they
could and would take up arms, as some did in the
Revolution, as Annie Oakley did in exhibitions, and as frontier women
did who would not be spared by hostile natives if they were
noncombatants, that attitudes toward them changed, and they got the

Among those groups, only the rights of children are still disabled by
default today, and I regard that as inconsistent with the Fifth
Amendment, because default disablement is not "due process". I have an
amendment on the subject in my Draft
Amendments that makes an exception for children, but only for

So let us examine provisions of the Constitution that might have been
understood differently by each group. For the sake of efficiency, let
us neglect, for the moment, the noncontroversial clauses, and focus on
those that are matters of dispute among judges and legal scholars
today. What was the public meaning of "commerce", or "necessary and
proper", or "due process", or the various "rights" (including the
unenumerated ones)? 

It should be clear that for most of these groups there was no "public
meaning" for most of those terms, because they didn't think about them,
or need to. Native Americans mostly didn't even have public meanings
for anything in English. The illiterate might be able to dimly
understand some of them, but without the ability to read or write it is
difficult to identify public meaning for them.

This brings us to the point I often make, that the language of the
Constitution is not to be understood by its public meaning for the
entire general public, but for those fluent in the language of the law
during that period. It was written by legal scholars for legal
scholars, though with some attempt to make as much of it as accessible
to laypersons as possible. Even the Framers were not always sure of the
meanings of the words they used. An example of this can be seen in the
comments by Dickenson in the Federal Convention Aug. 29, 1787,
about ex post facto only applying to criminal cases, after
researching the topic in Blackstone's Commentaries.
They used terms they themselves had to look up in writings by scholars
they respected, such as Blackstone and Coke. If they had to look up the
language to understand it, then so must we, and that is an exercise in
learning what is to us essentially a foreign language, and more, a
foreign technical language, used by people who had yet to adopt the use
of dictionaries, and who even rejected the notion that words could be
reduced to pithy definitions. 

So to answer the question of the subject, were the excluded groups
legal scholars, or did they have legal scholars among them? It seems
clear they did not. Nothing at that time prevented most of them from
becoming legal scholars, and if any of them had done that those
individuals at least would likely not have been excluded, at least in
some states. Write a legal treatise or two, or even just represent
clients in court, and you'll probably get to vote in the  next election.

To get the original meaning or understanding or intent of the Framers
and Ratifiers, we are either going to have to seek the expert testimony
of legal historian-linguists of the period, or become such experts. To
facilitate that, I have been putting the writings you need to study
online. I have read almost all of them except the complete trial report
collections, and find that as a result of such immersion, the meanings
of the provisions of the Constitution are fairly clear, and legal
decisions concerning them fairly straightforward. It helps to not
confuse oneself by trying to parse the meanings of court opinions by
judges who did not deeply understand the issues of the cases and who
lacked the ability or disposition to think or write clearly about them.
Confusion breeds confusion. Judges are not experts. They are just
judges. They should not be treated as experts. The Framers and
Ratifiers were not always experts themselves, but they were the Framers
and Ratifiers, so it is their words and not the words of later judges
that we need to try to find the meanings of.

On 10/17/2009 09:33 AM, Mark Stein wrote:


In a 2005 article, Malla Pollack made the truly modest proposal that
"public meaning" originalists should include, as part of their
meaning-determining "public," groups that were excluded at the time of
origin (African-Americans, women, the poor).  As far as I can tell, no
public-meaning originalist has ever explicitly addressed the question
of whether excluded groups are part of the "public."  Sometimes there
is an implicit assumption that excluded groups are not part of the
public, as with Bork's reference to "informed public men of the time,"
but I have never seen an actual discussion of the issue.  Has anyone
seen such a discussion?


In theory, including the excluded in the "public" might have no effect,
a retrograde effect (due to cynicism), or a progressive effect.  As a
matter of psychology, I think a limited progressive effect is most
likely.  People tend to interpret language to their benefit- witness
how the Federalists under President John Adams were convinced that the
First Amendment permitted prosecution for seditious libel, and the
Republicans were convinced it didn't- this by people who were part of
the "public" (and framers and ratifiers) when the First Amendment came
into existence.  In particular, I wonder if including women in the
"public" at the time of the Fourteenth Amendment would make it less


Public-meaning originalists really should address the issue of who
makes up the "public".  Otherwise, they may be unnecessarily
perpetuating prior exclusions.  Also, though public-meaning originalism
now seems dominant over framers' intent and ratifier understanding, the
theoretical basis of public-meaning originalism is somewhat
mysterious.  Certainly the basis of public-meaning originalism is less
straightforward than that of framers' intent (intentionalism) or
ratifier understanding (popular sovereignty).  Addressing the issue of
who makes up the "public" could clarify the theoretical basis for
public-meaning originalism.

-- Jon

Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757
512/299-5001    www.constitution.org    jon.roland at constitution.org

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