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

Sat Oct 17 11:32:46 PDT 2009

The following message from Gary Lawson is reposted here with permission.  
In response:  Original public meaning is a hypothetical construct, but it is based on real people of the time, which begs the question:  Which people?  The text might mean one thing to a hypothetical propertied white male and something else to a hypothetical member of one of the excluded groups.  Since originalists think it makes a difference to specify the date of the relevant hypothetical public (i.e., time of origin, as opposed to today), why doesn't it make a difference to specify the composition of the hypothetical public?

Mark

From: glawson at bu.edu
To: mallapollack at yahoo.com; jon.roland at constitution.org; chmyankel at live.com
CC: rb325 at law.georgetown.edu; lsolum at gmail.com; kurt.lash at lls.edu
Subject: RE: Are previously excluded groups part of the "public" that determines meaning?
Date: Sat, 17 Oct 2009 13:36:41 -0400

In addition to recommending Malla’s
characteristically insightful articles, I immodestly suggest also Gary Lawson & Guy Seidman, Originalism As a Legal
Enterprise, 23 Const. Commentary 47 (2006), which defends in some detail the
proposition that constitutional meaning is found in the hypothetical intentions
of a hypothetical reasonable person rather than in the thoughts or intentions
of concrete historical individuals (of any particular description).

-----Original Message-----

From: Malla Pollack
[mailto:mallapollack at yahoo.com] 

Sent: Saturday, October 17, 2009
1:27 PM

To: jon.roland at constitution.org;
Mark Stein

Cc: Randy Barnett; Lawrence Solum;
Kurt Lash; Gary Lawson

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

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 meaning?

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 differently:

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 franchise.

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 children.

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 sexist.

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

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