Wednesday, December 06, 2006

Does "Originalism" Refer to Original INTENT or Original MEANING? Or Is This A Distinction Without A Difference?

For the savvy layperson, one of the most natural ways of understanding the Constitution is to refer to what the framers intended the Constitution to mean. This interpretive methodology, called "the theory of original intent" or "originalism" (also known as "intentionalism") is perhaps the most prominent conception of constitutional interpretation among ordinary folks as well as among jurists and scholars. Understood in this manner, constitutional interpretation is just one instance of literary interpretation where the task is to discover authorial intent. What the framers intended the words of the Constitution to mean, as constitutional authors, is just what they should mean unless and until the people resort to Article V and amend the Constitution to fit changing times.

Unfortunately, originalism faces a legion of problems. First, just what does it mean to say that someone intended his or her words to have a definite (and determinate) meaning? This question requires a sophisticated excursion into the philosophy of mind, a journey upon which constitutional scholars aren't necessarily eager to embark. Second, even if we understood the meaning of such claims, how do we know what individual framers intended? Do we conduct psychological investigations into the inner workings of their minds? Can we even hope to ascribe a determinate intention to anyone in the past or even in the present? Like language, intentions are often mixed and nuanced. An individual might intend a constitutional provision to mean mostly X, but also to mean Y. Unless one commits oneself to some notion of pure, clearly identifiable intentions floating around in someone's head, it is difficult to say for sure just what they intended their words to mean.

Second, and more importantly, even if we could readily identify the intentions of various framers, how do we ever hope to combine individual intentions into one super-duper collective intention? And are we certain that even if we could combine individual intentions in this manner, one determinate collective intention would result. Third, who counts as a framer? Those illustrious members attending the constitutional convention? Why not the ordinary folks who ratified the Constitution in state conventions? If it the ratifiers, the problem of identifying the relevant collective intention is exacerbated.

For these as well as other reasons, intentionalism does not promise to illuminate constitutional meaning. We can abandon originalism or try to reformulate it. Randy Barnett tries do the latter in an article that insists upon a distinction between "Original Meaning Originalism" and "Original Intent Originalism." The former seeks to understand the meaning of the Constitution by understanding the public meaning of the language used at the time of ratification. The latter looks to the framers intentions to either understand constitutional language entirely, or for Barnett "to fill any gaps in the original public meaning at the time of enactment." Barnett contends that most thoughtful conservatives and libertarians (and perhaps anyone understanding the philosophy of language) would choose original meaning originalism. But does his distinction survive scrutiny and if it does, is it anything more than a distinction between originalism and textualism.

Public meaning theories, if truly different from intentionalism, leave us with merely lexicographical, perhaps supplemented with anthropological, accounts of the meaning of constitutional language. This is much too general account of the Constitution's meaning. It supplies none of the specific reasons for various provisions or the purposes of those who drafted and ratified those provisions. Barnett's position fails to appreciate two kinds of meaning. First, words or sentences have meaning that is generated from motivational and prescriptive social rules. This type of meaning--call it "public meaning"--is the sort of meaning that doesn't depend on the mysterious, psychological states. No one intends words to have this sort of meaning; they just do. A native language user exploits this type of meaning whenever he or she uses language. The second kind of meaning--call it "perspective meaning"--refers to the use of language, with its public meaning, by a person or group to achieve certain kinds of goals. Constitutional language has public meaning, to be sure, but it would not be relevant to constitutional interpretation if it lacked perspective meaning. And that's what intentionalism says.

Perspective meaning needs historical contexts to give life to particular uses of language. Without some specific contextual background to generate perspective meaning, it's difficult to appreciate how we can understand the Constitution now. The drafters and ratifiers lived in a particular historical context. Perhaps they did not need it spelled out. But we do. And spelling out this context invariably means referring to how various historical figures understood the Constitution. It means referring to concrete problems facing the Framers and their reasons for insisting on certain language, the purposes of the provisions which the language expressed, and even expectations of how the language will be applied in the future.

(Many contemporary constitutional theorists insist erroneously, in my view, that framers' meaning does not include how the framers expected the provision to be applied. But expectations concerning the application of a provision constitute one of several indicia of just what the framers' reasons were in selecting their choice of words and the purposes those words served.)

But is Barnett's distinction between original intent and original meaning viable. In order to ascertain original intent one needs to refer to a historical context in which key actors identify and react to problems and attempt to overcome these problems according to their overarching purposes. Further, for original meaning to be anything more than a lexicographical account of bygone English, a historical context is also required to identify the problems facing historical actors and their proposed remedies. One cannot escape historical context, particular problems faced by specific historical actors, and the reasons and purposes behind the actor’s choice of words. If public meaning is more than lexicography then it will easily slide into original intent understood as perspective meaning. The distinction between original meaning and original intent is a distinction without a difference.

The Federalist Papers, for instance, are used as a primer for understanding the Constitution. This suggests that more than public meaning is involved in constitutional interpretation. The Federalist Papers can either be seen as supplementary to public meaning or to original intent. Yet, if public meaning is abstract, unilluminating lexicography, then it will eschew such sources as the Federalist Papers. As such, it is woefully inadequate to supply the kind of meaning relevant to understanding how particular historical actors resolve concrete problems. The bottom line is that if public meaning is really distinguishable from original intent, it is irrelevant to constitutional interpretation, and if it is relevant to constitutional interpretation because it refers to historical context and particular problems of concrete historical actors, then it is indistinguishable from original intent understood as perspective meaning. In either case, the distinction Barnett insists upon is unhelpful in assessing the merit of originalism as a theory of constitutional interpretation.

A weightier reason--one derived from the philosophy of democracy--presents a deeper problem for the distinction between original intent and original meaning. Originalism is attractive because it portends to represent a normative standard for settling contemporary, constitutional controversies independent of the partisan views of present day disputants. Indeed, it is often said that the Court should not decide controversial issues because the framers already have decided those issues for us or, if they have not, they've left those issues to politics. Since the people ratified the Constitution, democracy requires we stick to the meaning as understood by the ratifiers, not alternative present meanings or even alternative past meanings. How these historical figures understood the Constitution is just what it means. That is precisely what a common understanding of democracy involves. Constitutional text T means A just because the drafters and ratifiers of T understood it to mean A. That requires considerably more than public meaning unless public meaning smuggles in evidence of the reasons, purposes, and expectations of the framers. These figures ratified the Constitution understood in a certain manner. And it is that meaning that controls in a democracy. In the final analysis when we reject intentions floating around in someone's head, on the one hand, and abstract lexicographical meaning, on the other, framers' intent and framers' meaning are indistinguishable. Both kinds of meaning must make reference to the framers and ratifiers' reasons for drafting and ratifying the Constitution using language that has both public meaning and perspective meaning. Present day constitutional interpretation must include both kinds of meaning for originalism to be a viable theory of interpretation in the first place. If originalism as original intent fails then so does originalism as public meaning.

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