Issues

The great debate between originalism and living constitutionalism ought to focus on the merits, including normative arguments for and against various forms of each theory. Frequently, however, discussion turns to disputes about definitions and concepts. This Essay investigates the conceptual structure of the great debate. It lays out a variety of issues that arise when theorists attempt to define “originalism” and “living constitutionalism” and proposes criteria for settling definitional disputes.

The “new originalism” is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and separation of powers in lieu of the original meaning of any particular provision of the Constitution. This Essay demonstrates and examines the underexplored tension between original meaning textualism and structural argument.

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated shaped discussions about rights in ways that originalism should address. In particular, colonists argued with colonial officials both explicitly and implicitly about the extent to which statutes as well as common law applied in the colonies. These contested statutory schemes should affect how we understand constitutional provisions: for example, they might suggest that statutes pertaining to martial law should be added to those treating habeas corpus as a backdrop against which to interpret the Suspension Clause. Furthermore, the conflict showed the significance to members of the Founding generation of the personnel applying law, whether military or civilian, rather than the substantive law applied; this emphasis could also be significant for how we interpret constitutional rights.

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment. In this Essay, we unite these two conflicting principles of originalism under the original methods approach to constitutional interpretation, thereby providing a single coherent foundation for originalism. Under original methods, the Constitution is interpreted using the conventional legal interpretive rules deemed applicable to a document of its type at the time it was enacted. As properly understood, both the original intent and original public meaning approaches mandate that the Constitution be interpreted using the same conventional interpretive rules. Under original public meaning, a reasonable and knowledgeable person at the time would interpret the constitutional text by using the rules that were then thought to apply to it. Under original intent, the enactors would have intended the Constitution to be interpreted based on the conventional interpretive rules applied to it at that time. We further argue that these interpretive rules should be identified using the methods that people at the time would have employed for determining the interpretive rules. Just as constitutional provisions should be interpreted using the interpretive rules employed at the time of the relevant provision’s enactment, so too should the interpretive rules be identified based on the methods employed to identify those interpretive rules. We illustrate our approach by exploring the controversy of the Bank of the United States, showing, for instance, that there was a consensus against use of the substantive intent of the Philadelphia Convention as an interpretive rule.

This Essay provides an originalist appraisal of Professor James Bradley Thayer’s famous book on The Origin and Scope of the American Doctrine of Constitutional Law. I critique Professor Thayer’s thesis on multiple levels, pointing out important aspects of the original understanding that the Framers would have had of the meaning and origins of the U.S. Constitution, as well as disputing Professor Thayer’s discussion of the history of American judicial review from 1790 to the publication of his book in 1893. I conclude that no person can be both an originalist and a Thayerian. The two theories contradict one another and cannot be jointly adhered to. I then explain why I prefer originalism to Thayerianism as a normative matter.

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since. Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided—or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it? This Essay offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual social practice, including the aspects of legal practice we describe. This positive focus really can resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn’t the official story of our law. Stripped of their jurisprudential confusion, though, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders and to the changes over time that their law has recognized.