On Originalism and Indeterminacy

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At Legal History Blog, David Schwartz (Wisconsin): Originalism and the Limits of Semantic Meaning.  From the introduction:

The prevailing version of originalism—known as “original public meaning” (OPM) originalism—purports to be an historical semantic inquiry. The legally controlling meaning of a particular word, phrase, or clause in the Constitution is what it would have meant to a hypothetical reasonable person during the ratification debates. As of ratification, these meanings became “fixed.” (A small point: June 1788 when the ninth state ratified and the Constitution was deemed to be effect, or later?) While originalism in all its flavors, including OPM originalism, has been subject to various damning criticisms, I would like to suggest a further critique of the concept of original public meaning that has not to my knowledge been advanced.

My claim is this: where the ratification debates reveal a dispute over multiple meanings that are semantically plausible, semantics cannot provide a basis to choose one over another. If this is right, then the range of disputed constitutional meanings that can arguably be addressed by OPM originalism is even narrower than its critics have suggested.

And in conclusion:

In sum, there is no original public meaning – in the semantic sense argued by OPM originalists – for any constitutional text whose meaning was debated during ratification. This does not mean that the converse is true. Terms whose meaning becomes contested in later, unforeseen applications are not necessarily subject to semantic resolution merely because their semantic meaning was not debated in ratification. The disputed meaning of “citizen” in the Privileges and Immunities Clause in the Dred Scott case is an example. But the only candidates for resolution by OPM originalism are terms whose meanings were not debated during ratification.To pick one among two or more plausible candidate meanings that had support during the ratification debates is to move the question from semantic meaning to something else.

I think this criticism is mistaken (or at least overstated) on two grounds.  First, originalism does not contend that all (or even most) disputed constitutional issues can be settled by application of the original public meaning.  It only contends that where the original public meaning can be found, it should be followed.  Even if it were true that any dispute in the ratifying debates produced an irresolvable ambiguity, there are many modern issues that were not disputed during ratification.  For example, I’m not aware that anyone during ratification claimed the President could begin military hostilities amounting to war without Congress’ approval.

Second, the mere fact of a dispute does not show that the meaning was ambiguous.  A dispute might arise because a person was wrong about a provision’s meaning, either because they misread it or did not understand its words or its historical background.  A dispute might arise because a person deliberately misread a provision to advance a political agenda.  A dispute might arise because a provision is subject to multiple meanings on its face but, considered with context or with other parts of the Constitution, its meaning becomes clear (or at least one meaning becomes more reasonable than another).

One of Professor Schwartz’s examples illustrates the point:

[S]uppose I were to say, “There was widespread belief that the original charter of government of the United States was deeply flawed.” Note here that my authorial intention is irrelevant under the theory of original public meaning: again, the determining factor is the “objective” meaning to a hypothetical reasonable reader.

Some actual reasonable readers could take me to be referring, again, to the Constitution. But others would suppose I meant the Articles of Confederation. (A few others might even wonder whether I was referring to the Declaration of Independence, which has been viewed with some plausibility as the first United States governmental charter.) Context might, of course, make all but one meanings of my phrase “charter of government” implausible, with the result that its meaning is as plain as my use of “the Constitution” in these paragraphs. But such context might itself be absent or disputed, as is the case with many constitutional provisions.

But the existence of a dispute does not show that the dispute cannot be resolved.  Here it can.  A “charter of government” is a document that lays out the structure and authority of government.  The “original” charter of government is the first one.  The Articles of Confederation was a document that laid out the structure and authority of the U.S. government; it preceded the Constitution; and there was no such document before it.  (The Declaration did not lay out the structure of a government; it only announced a political separation).  True, some readers might think otherwise, because they are mistaken about the meaning of “charter,” or mistaken about the history or the nature of the Articles or the Declaration.  But that does not make the statement irresolvably ambiguous, even on its face.  Moreover, we are only talking about a single sentence in isolation.  That is unrealistic; statements do not occur in isolation.  The post acknowledges that “[c]ontext might, of course, make all but one meanings of my phrase ‘charter of government’ implausible.”  Indeed, context does often resolve apparent ambiguities, as originalists commonly argue.

Here is another example from the post:

Consider the meaning of the phrase “provide for” in the General Welfare Clause in Article I, section 8, clause 1 (“to provide for the common defense and general welfare”). Elsewhere in the constitution, “provide for” means “to legislate” (“to stipulate previously” in Webster’s 1828 dictionary): for instance, “to provide for the punishment of counterfeiting,” or “to provide for calling forth the militia” (Art. I., sec. 8., cls. 6, 15).  Originalists maintain that “provide for” in the General Welfare Clause means “spend” (indeed, so does conventional doctrine), but commonality of usage in the language generally, or the ranked order of dictionary definitions, do not supply a satisfactory justification for this choice. Rather, those who debate the meaning of “provide for” consider the legal and political effects of their choice. An interpreter preferring a narrow grant of power would prefer “spend” over “legislate” as the meaning of “provide for.”

Again, I think this is not a well chosen example.  It’s true that “provide for” is somewhat ambiguous on its face, as Professor Schwartz says.  But its meaning is apparent if one considers (as the post does not) the whole clause:

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States …

Taken as a whole, the clause means that Congress can use funds derived from taxes, duties, etc., to provide for the general welfare — that is, to spend them.  That’s how one uses money to “provide for” something.  (And, of course, reading the clause to allow Congress to “legislate” for the general welfare would make most of the rest of Article I, Section 8 superfluous).  So I think the ambiguity can be resolved (even if there is some dispute over it) without recourse to functional considerations.

With all that said, I agree with Professor Schwartz that an originalist must be cautious when the ratification debates reveal a deep division over a provision’s meaning, with strong textual and contextual arguments on both sides.  That’s not a criticism of originalism; it’s just an acknowledgement that sometimes the original meaning may be obscure or unsettled.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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