Underselling Originalism

Constitutional originalists frequently understate the case for constitutional originalism.

Professor John McGinnis is a prominent and persuasive exponent of originalism. However, in his posting, The Empire Strikes Back Against Originalism, which Michael Ramsey summarizes here, he misses some opportunities.

Consider his quotation of James Madison: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.” That’s fine as far as it goes, but here is Madison’s entire passage, written in a 1824 letter to Henry Lee:

“With a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiassed Enquirers into the history of its origin and adoption. Not to look further for an example, take the word “consolidate” in the address of the Convention prefixed to the Constitution. It then and there meant to give strength and solidity to the Union of the states. In its current & controversial application it means a destruction of the states, by transfusing their powers into the government of the Union.”

Professor McGinnis’ extract might suggest Madison was merely making a theoretical observation, when he was actually launching a full-throated attack on what we would call “living constitutionalism.” The complete passage forces the question: Why should we apply to Madison’s constitution an interpretative technique he so roundly repudiated?

As a general matter, originalists tend to understate their case in at least three ways:

• They understate how long originalism has prevailed in Anglo-American documentary interpretation;
• they do not emphasize the degree to which originalism has prevailed, and still prevails, throughout Anglo-American jurisprudence; and
• they downplay the role of the subjective understanding behind a document’s words in fixing the meaning of those words.

First: Professor McGinnis’s posting provides an example of temporal understatement in his remark that originalism “has been around since the early republic,” citing Madison’s 1824 letter.

But by 1824 Anglo-American courts had been applying originalist methodology for centuries. Specifically, the “intent of the makers” had been the lodestar of documentary construction since at least the 1500s. My 2007 article on the subject contains many examples, but here is one from the Founding-era:  In 1782, the Virginia Supreme Court of Appeals decided Commonwealth v. Caton. It applied originalist methods to the Virginia constitution, with judges referring repeatedly to the “makers of the constitution” and what was “intended by the framers” (who were, in this case, also the document’s ratifiers). Participants in the Caton case included several Founders of the first and second rank, including Edmund Randolph (as an advocate) and Edmund Pendleton (as a judge).

Anti-originalists sometimes contend that originalism is a creation of modern conservatives. History renders this claim risible.

Second: Originalists need to emphasize that the “intent of the makers” standard is not unique to constitutional interpretation. It is, and long has been, the standard for interpreting documents generally. Pre-Founding-era and Founding-era legal sources show the “intent of the makers” guiding construction of documents of all kinds, with the notable exception of real estate conveyances. Of course, the identity of the “makers” varied with the nature of the instrument. For a statute, the “makers” were the legislators (not the legislative drafters); for a will, the testator; for a contract, the contracting parties; for a constitution, the ratifiers.

Today we usually refer to the “the intent of the parties” rather than the intent of the makers, but originalism remains the prevailing rule of documentary construction throughout the law. In fact, it has expanded its empire to include real estate conveyances, as I showed in my conveyancing treatise many years ago (Modern Law of Deeds to Real Property, Little, Brown &Co., 1992).

In my view, far too many constitutional commentators (both originalists and non-originalists) arrive at their positions without significant experience in other areas of the law. Exposure to a variety of legal subjects helps us understand the product of the framers, most of who had multi-subject law practice experience before they started writing constitutions. If we required law professors with constitutional ambitions to work first in fields such as contracts, property, and estates, then I think claims that originalism is unique or fabricated for conservative ends would largely disappear.

Third: Perhaps in reaction to Professor Jeff Powell’s much-cited 1985 law review article—or in reaction to Justice Scalia’s views of statutory interpretation—many originalists have unwisely distanced themselves from the ratifiers’ subjective understanding in favor of objective public meaning.

Yet in other areas of the law, when coherent evidence of subjective understanding is available, courts give it great, often decisive, weight. When the evidence demonstrates sufficiently that the written words differ from the subjective understanding, courts often employ the equitable remedy of reformation to ensure that the words comply with the understanding.

Contrary to Jeff Powell’s thesis, the jurisprudence of the 16th, 17th, and 18th centuries demonstrates that Anglo-American lawyers similarly valued the subjective understanding behind documents being construed. When good evidence of subjective understanding was available, courts used it to clarify the words. Occasionally—as the court did unanimously in the Caton case—subjective understanding could trump the words. Thus, the following maxims were common during the Founding-era: Ut verba serviant intentioni & non intentio verbis (“So that the words serve the intention and not the intention the words ”) and Qui haeret in litera haeret in cortice. (“Who sticks [only] to the letter sticks to the bark”).

I am not, of course, suggesting that courts re-write the text of the Constitution to conform to ratifier understanding. (Aside from perhaps one or two clauses, there is very little variance.) But where subjective understanding is clear, we should unapologetically apply it in construing the text.

Originalism is not some competing theory of fairly recent origin, or even of 19th century origin. It has been the dominant method of documentary interpretation in our legal system—and a central feature of the rule of law—for at least five centuries. Originalists need to start saying so.

Note: A fuller examination of constitutional and other documentary interpretation at the Founding appears in Robert G. Natelson, The Founders’ Hermeneutic: The Real Original Understanding of Original Intent, 68 Ohio St. L.J. 1239 (2007).

This article first appeared in The Originalism Blog.