Selective Critiques of Originalism?

At The Originalism Blog, Michael Ramsey has a post on a forthcoming article by Mark Graber on the meaning of "insurrection" as it appears in Section Three of the Fourteenth Amendment. From the abstract, Graber claims to demonstrate "that the constitutional/common law of insurrection was well-established and well-understood in 1866," and that the term had "'a precise and well-understood meaning.'"

Michael Ramsey follows up on Graber's abstract with the following spicy commentary.

Some very confident statements here from a respected legal historian using history to establish a determinate original meaning of constitutional text relevant to a modern controversy.

So will historians and others who think history is too contingent and ambiguous to support the originalism project protest these conclusions?

Hypothesis: the 'history is indeterminate' critique of originalism applies only to originalist arguments that produce conservative results. Originalist arguments that produce left-leaning results are fine. For example, in addition to Trump disqualification: emoluments, presidential immunity, birthright citizenship, presidential war power, and that's just a start. I would like to be proved wrong on this.

I've critiqued the use of history by originalists before. In this article, for example, I argue that legal originalists tend to use history as precedent--bending it to fit the needs of clients, preferred arguments, or the need to reach a conclusion in a dispute. To an extent, the ambiguity of historical evidence poses problems to endeavors to determine original meaning. But I'm more concerned with attempts at doing history in the context of legal disputes, which may lead to selective or opportunistic citations and framing of historical evidence to fit the goals of those presenting the evidence.

Do I have a beef with Graber's claims? I don't pretend to be an originalist or a historian, so I have little to say on the merits of the claim. I do think that as a matter of "original public meaning" originalism, questions remain--as Graber's argument appears to proceed primarily from legal authorities of the time, such as court opinions, legislative history documents, and legal treatises. Whether the evidence demonstrates what a member of the public would have taken Section Three to mean at the time of ratification is, I think, a distinct question that I'm not sure this evidence fully answers--largely because I'm not sure if that question can be answered. 

I don't think this raises any real problems with Graber's arguments. He's explicit about the sources he's using and the types of meaning discussed. It's my understanding that he doesn't claim (here or elsewhere) to be an originalist or to engage in originalism.

To tell the truth, though, I'm not all that invested in diving into the issue. Beyond my lack of expertise, I don't see much of a point in sifting through the historical evidence of what a bunch of long-dead folks thought about Section Three not so much because I don't think nothing's there, but because nothing will come of that work.

When originalism counsels against politically conservative results, today's Court simply avoids the method. Despite a sudden tsunami of scholarship and commentary on the original meaning of Section Three of the Fourteenth Amendment, the Court simply brushed aside a Section Three challenge to Trump's eligibility with structural arguments rather than a consideration of original meaning. This happened later in the same term when the Court decided Trump v. United States, granting Trump broad immunity from criminal prosecution on structural constitutional grounds. With a Court that picks and chooses its methodology in a manner that aligns with the political goals of its conservative supermajority, what is the point of devoting attention (favorable or unfavorable) to "left-leaning originalism" that one knows the Court will simply dodge?

As for where I devote my attention in my own work, I'm most interested in how originalism is employed by legal actors and calling out errors in originalism's execution. As a result, I focus on questions of history and original meaning the Court has purported to resolve. The Court's selective use (and avoidance) of originalist methodology results in a body of law in which its few originalist or traditionalist analyses lead to conservative outcomes. Because my work is drawn from what the Court does, I'm left with little to critique beyond goal-oriented facades of historical analysis in the service of conservative political goals. I'd welcome a change of pace, but I won't be holding my breath.

Originalism, Bullshit, and Overconfidence

A while back, I wrote an article entitled, "Is Originalism Bullshit?" The current version of the piece is available here, and it will eventually be published in the Lewis & Clark Law Review. Those eager for invective and name-calling--please download and cite to the article before reading on.

Is Originalism Bullshit?

Reading past the article's third page reveals that my goal in the piece is to discuss originalism in both practice and theory in the context of theorizing on the nature of bullshit. As it turns out, a fairly robust literature on bullshit exists, and scholars of philosophy, sociology, rhetoric, and law have grappled with defining the term and applying it to discourse in various contexts. Harry Frankfurt's foundational essay, "On Bullshit," is largely credited with getting the ball rolling, and my article applies the lessons learned from interdisciplinary engagement with the concept. My focus is constitutional interpretation, and particularly interpretation that resorts to history to inform claims about constitutional meaning. While the title of the article addresses originalism, I'm similarly concerned with the Court's attention to history and tradition--a traditionalist approach that I've argued elsewhere is distinct from originalist interpretation.

Bullshit--simplified and summarized--is typically defined as statements made without regard to the truth of their content, made in service of some purpose other than communicating the truth to the listener. In the article, I address how bullshit may manifest in legal contexts and suggest that originalist and traditionalist methodologies lend themselves to abuse by bullshitters. Originalism, in its most typical form, urges interpreters to determine the original public meaning of a constitutional provision. This is--at least in theory--a historical inquiry. One must determine what the general public (or a reasonable member of the general public--whoever that is) believed a provision to mean at the time of ratification. This inquiry, originalists acknowledge, may require a variety of methods, including immersion in the source material and attention to a broad array of contemporaneous comparable usages.

Unfortunately, performing a careful, balanced historical investigation is difficult, given the time, ethical, and professional demands attorneys and judges face. Those purporting to engage in historical analysis frequently goof up, infusing their investigation of the past with present-day concepts and assumptions (among other errors). This is unsurprising. Those engaged in originalist inquiries--at least on the ground--tend to be lawyers and judges. They are not trained historians. They are, instead, trained in legal argument and reasoning, and tend to slip into these modes of analysis when purporting to engage in historical investigations. 

Legal academics, as well, frequently lack the training and experience required for rigorous historical investigation (including training to avoid importing their present-day perceptions onto the materials they analyze). Making things more concerning, originalist legal scholars tend to eschew the work of historians--distinguishing the legal questions originalism resolves from the more abstract and unbounded questions that occupy the attention of professional historians. Even those with historical training may face temptation to skew their analysis--conscious or unconscious--as they may have particular cases in mind, or wish to reach conclusions that are sufficiently firm and dramatic to draw the attention of law review editors, judges, and Justices.

All of these motivations, combined with a general lack of historical training (and not infrequent disdain for the historians) are fertile ground for bullshit to thrive. Originalists--particularly practicing originalists--may be educated enough to know the complexity of which they speak, but willing to paper over that complexity in their own claims in order to accomplish their goals. Lawyers need to advocate for their clients. Judges need to reach a decision, rather than wallow in the uncertainty of a potentially contradictory and sparse historical record. The result is a tendency to make uninformed, overstated, and potentially false claims about historical meaning in service of these goals. This, I argue, is bullshit.

Throughout the article I discuss examples of bullshit from the bench. I decline to identify any originalist scholars as bullshitters. Despite the title, I try to keep things a bit classy throughout the piece. I'm not sure if naming names accomplishes that goal.

Robert Natelson

Robert Natelson, depending on which of his many online biographies you read, is "one of America's best-known constitutional scholars," and is "widely acknowledged to be the country’s leading scholar on the Constitution’s amendment procedure and among the leaders on several other topics." "His publications are too numerous to list," (is such a thing possible?) and while he was once a law professor, he is "currently the Senior Fellow in Constitutional Jurisprudence at the Heartland Institute in Arlington Heights, IL, the Independence Institute in Denver, Colorado, and the Montana Policy Institute in Bozeman, Montana."

While his own website includes no CV, it includes the following regarding his expertise and experience:

There are several keys to Professor Natelson’s success as a scholar. Unlike most constitutional writers, he has academic training not merely in law or in history, but in both, as well as in the Latin classics that were the mainstay of Founding-Era education. He works to keep his historical investigations objective. He also has the benefit of lessons and habits learned in the “real world,” since prior to entering academia he practiced law in two states, ran his own businesses, and worked as a journalist and at other jobs.

 Historical expertise and objectivity? You got it. From his Independence Institute bio:

[U]nlike most other constitutional writers, he has academic training in history and in the Greco-Roman classics that were the mainstay of Founding-Era education. Finally, he does not enter a research project to promote some pre-determined conclusion. His agenda is to find and publish the truth.

Natelson's opinions on "the truth" sometimes lead to conflict. In 2022, Natelson took issue with a brief that by Gregory Ablavsky that addressed Natelson's work. Natelson's characterization?

When I finally got a chance to review it, I was stunned. Disagreement is part of the scholarly and legal process. But this was more than disagreement: The section of the brief directed at me had a “shyster” quality that rendered it out of place for a legal scholar and, indeed, for any brief submitted to a federal court.

The brief repeatedly misrepresented my positions—and on one occasion, the position of Justice Thomas. It threw unfair imputations on a careful, objective—and, I believe, accurate—examination of how the Constitution’s ratifiers understood the Indian Commerce Clause. It wrenched quotations out of context to make them appear to say things they did not. And it contradicted statements Ablavsky himself had made in his 2015 article.

Natelson went on to critique various examples of what he claimed were misrepresentations of his work, as well as what he asserted were mistakes in Ablavsky's historical analysis.

Ablavsky, in turn, responded with a lengthy takedown of Natelson's critique and methodology. It's available here. In brief, Ablavsky critiqued Natelson for unwarranted certainty over the intention of certain founders, incorrectly stating that Ablavsky relied on nonexistent sources, and confusing differences of interpretation with factual errors. From Ablavsky:

All of these issues frame a larger disagreement between Mr. Natelson and me. He finds great certainty in his interpretations of the past and of other scholars—so much so that, when I earlier pointed out much of his argument rested on an inaccurate version of a quotation that, when corrected, directly contradicted his original interpretation, he insisted that the corrected quotation still did not trouble his original conclusion. You will find a similar attitude throughout his “cite check”: deep confidence that not only is his interpretation right and mine wrong, but that my view is so egregiously incorrect as to not warrant publication.

Sam Bray and Paul Miller have pointed out missteps in other areas of Natelson's work--the uncritical repetition of which have had ripple effects throughout the academy. Natelson's evidence for his bold conclusions is--as Richard Primus argues--"thin." Yet, as we'll see, Natelson remains quote confident in his abilities.

Natelson and Infinite Regress

Years later, Natelson wrote a series of articles (based on this piece) contending that the Constitution permits states to act independently of the federal government to address the entry of undocumented immigrants due to various provisions detailing what states may due in cases of invasion. In response to this...questionable claim, David Weisberg warned against a "Paradox of Originalism," in which discussion of a historical definition of a term requires inquiries into the historical meaning of the definition and its terms--which continues ad infinitum. 

In response, Andrew Hyman conveyed Natelson's thoughts:

Infinite regress is possible only if the researcher has no substantial background in 18th century discourse and has to rely on a dictionary to look up every word in every definition. However, competent originalist scholars make themselves familiar with 18th century discourse. In my case, for example, I've been immersed for many years in a vast array of official 18th century letters, newspaper reports, essays, legislative records, case reports, handbooks, legal treatises, and other material. I've also read the founding generation's educational canon and a fair amount of contemporaneous literature.

Once you are conversant with 18th century usage, you know which common words have changed meaning and which have not. The word "permission," for example, has not changed meaning. But even before beginning our "state war powers" project, I knew that one of the 18th century definitions of "hostile" was not commonly used today. It was necessary to consult a dictionary only to confirm and document this, because a law review editor wasn't going to just take my word for it.

I don't expect lawyers and judges who interpret the Constitution to make that kind of commitment to learning 18th century English. That's what scholars are for. Scholars should publish to provide accurate guidance. It is regrettable that so many legal writers publish before they have acquired the necessary tools---and not to provide accurate guidance but to influence.

(On a side note, that very last sentence is interesting, in light of Natelson's pride over the Supreme Court's citation of his scholarship, his work on amicus briefs, and his explicitly stated goal in the article at issue of "enabl[ing] the judiciary to change course. Sounds like "influence" to me.)

Where is all of this going, and what does it have to do with originalism and bullshit?

I quoted a small portion of Natelson's response in a portion of my article in which I raised concerns over originalists who disregard the work of historians and the critiques of historians. As noted above, some originalists tend to distinguish their work from that of historians--critiquing historians as addressing fundamentally different issues than those of legal interpretation which concern originalists. Natelson's overconfident rejoinder to Weisberg seemed a fitting example.

Or did it?

Natelson and Hyman Strike Back

Over the weekend, I received an email from Robert Natelson responding to my article on originalism. After a brief word on how the title and tone of the article cheapened the discourse, he took issue with how I'd quoted him in the article. Natelson insisted that he was not rejecting historians' critiques, and noted that he cites "historians of the era copiously" in his work. While I wasn't sure this was particularly responsive (as I was not urging engagement with historians of the era, but, rather, the work of modern historians) I responded with a kind (but ominous) promise to make that portion of the article more precise and thorough.

Two days later, Andrew Hyman wrote a post on The Originalism Blog, essentially repeating Natelson's earlier concerns (though in a more civil tone). From that post:

Natelson’s self-described procedure was applied to “common” words that he had already encountered in writings from the eighteenth century, and if instead obscure words had been involved, which Natelson had not previously encountered, then doubtless he would have consulted the old dictionaries before forming any notions about what he would find in those old dictionaries. In short, I don’t see anything wrong with the way Rob Natelson proceeded in this matter. As a coauthor with Rob, I can attest that we cited many historical critiques, without picking ones supporting our conclusions, and the idea that Rob has no use for such critiques is incorrect.

What might have been an issue to address with a minor revision and a slightly beefier footnote is now out in the open. 

And so...

I appreciate the attention to my work. It's also nice to see that both Natelson and Hyman appear to have made it through 47 pages on why originalism lends itself to bullshitting before finding a flaw. But it doesn't seem right to leave Hyman's characterization of my work as "misleading" floating around without a rejoinder.

To an extent, Natelson and Hyman are right. I don't think that the problems with Natelson's approach to history are precisely the same as those exhibited by originalists who disregard the work of historians as irrelevant to their interpretive inquiry. Natelson's approach is similarly problematic in a somewhat different way.

Natelson, in the excerpt I quote in my article, and as other scholars observe of his work elsewhere, evidences an overconfidence that risks crossing the line into bullshit territory. Ablavsky, Bray, Miller, and Primus (in their pieces linked above) detail examples of how this confidence leads to overambitious conclusions that extend beyond the support of the cited evidence. And in the portion I quote, Natelson expresses a level of confidence in his own abilities such that he need not resort to consulting historical sources to know the answer to a question. Going into the historical weeds and pulling relevant sources is only necessary to appease the editors. But it's ultimately overkill, since Natelson already knows the answer. 

A possible response is that overconfidence in this vein does not lead to bullshitting, but is rather more likely to result in earnest mistakes. One who genuinely believes that they are communicating the truth about original meaning is not a bullshitter, as they care about the truth of their assertion and believe that they are informing the listener of what is true. This may be the case in which the speaker is overconfident. To be sure, the overconfidence is still worthy of criticism--but not on the grounds that it's giving rise to bullshit.

But I don't think this response holds up. To start, I remain skeptical of Natelson's repeated assertions--both in the broader context of the statement I quoted, and in his various biographies--that his primary concern is The Truth. He isn't shy about calling out the distorted perspectives of others--accusing legal academics of being drawn to conclusions by their left-leaning political ideologies. And yet, Natelson has positions with multiple...let's call them, "Think Tanks," which routinely participate in litigation over contentious issues. He isn't shy about his own participation in this litigation, and he flaunts the Court's reliance on his work. Taking on the role of advocate involves the risk that one will interpret ambiguous evidence in a manner conducive to one's goals--including in subtle manners of which one might be unaware. Desiring recognition in the form of judicial citations incentivizes strong conclusions of which Justices might approve--incentives which may be inconsistent with historical evidence that is sparse or contradictory.

To be sure, these concerns are speculative. Perhaps Natelson did indeed immerse himself systematically in the historical evidence (despite lacking any formal training or education in history beyond undergraduate education--at least as far as I can tell), and perhaps the effects of this immersion are so strong that they crowd out the influences of Natelson's current advocacy work and prior political involvement. That voice in the back of his head telling him the true meaning of the Constitution may indeed belong to James Madison, rather than Justice Thomas whispering "I'll cite you!" 

But none of this changes the fact that Natelson has repeatedly been called out on his overconfident approach to interpreting historical evidence--both by legal scholars and trained historians. In the face of these rebukes, Natelson remains steadfast in proclaiming his expertise and knowledge of original meaning, and isn't afraid to lash out at those who dare disagree.

And so in my article he will remain.

Section Three, Originalism, and Interpretive Alternatives

William Baude and Michael Stokes Paulsen have written a recent article, "The Sweep and Force of Section Three," in which they argue that Section Three of the Fourteenth Amendment is a self-executing provision that renders Donald Trump ineligible for the presidency as a result of his role in attempting to overthrow the results of the 2020 election.

The article has been the talk of both legal academia and the wider public in recent weeks, drawing a great deal of attention and drawing support and criticism from various scholars and commentators. While this post adds to the commentary, let me emphasize at the outset that I do not dig into the weeds of the historical claims or evidence that Baude and Paulsen amass. Indeed, this post isn't so much a response to the article, but instead derives primarily from how Baude and Paulsen have described and defended their claims in follow-up discussions (particularly in recent episodes of "Amarica's Constitution," which Baude highlights here), and have only reviewed portions of the article that get into the interpretive issues I focus on here.

This was initially meant to be a response to a brief comment Michael Ramsey's post at The Originalism Blog, which highlighted some recent coverage of Baude and Paulsen's article. Ramsey closes his post with this comment:

There's a lot of originalism in these debates and in commentary on the Section 3 issues generally. It's worth noting that the nonoriginalist alternative is that judges decide whether Trump should be disqualified based on their intuitive assessment of what's best in light of modern needs and circumstances.

This characterization of the options for interpreting Section Three is an oversimplification. And it's an oversimplification worth highlighting because of its frequent occurrence in debates between originalists and nonoriginalists--including in Baude and Paulsen's defense of their claims against certain critiques.

Contrary to Ramsey's claim, there are a number of nonoriginalist means by which one may interpret Section Three before resorting to mere intuitive assessments. A judge might interpret the text by reference to its present meaning and understanding, as well as how it fits in with the structure of the Fourteenth Amendment and the rest of the Constitution, without looking to the historical debates over the Fourteenth Amendment's meaning and place in the Constitution. Alternatively, a judge may look to how Section Three has been interpreted in subsequent cases and rely on meaning developed over time through common law reasoning to determine how that language should be applied in a present case. And while "intuitive assessment" of modern needs suggests little more than going with one's gut, or shooting from the hip based on initial impressions, considerations of modern needs and circumstances--albeit through thorough consideration of consequences and careful reasoning--may also play a role, as those espousing pragmatist theories of interpretation argue at length.

And even the method that Ramsey highlights is one worth noting. As concerning as "intuitive assessment" might sound, considering modern needs and circumstances probably ought to play at least some role in the decisionmaking process--even if those considerations factor in on a level beyond interpretation. Even if there's a strong originalist argument in favor of disqualification, one shouldn't lose sight of the broader context. Indeed, another originalist, Michael McConnell, urges a narrow reading of Section Three out of concern for the consequences of a broad reading:

Putting together my friends' broad definitions of "insurrection" and "engage," and lack of concern about enforcement procedure, I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot. Imagine how bad actors will use this theory. If that is what Section 3 necessarily means, we have to live with it. But in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent. In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.

Baude and Paulsen respond by arguing that this is an inappropriate way to interpret the Constitution (both in the initial link and in this second episode as well). They argue that concerns over misapplication of a particular interpretation do not invalidate the criticized interpretation, and analogize McConnell's concerns over consequences to a judge's first selecting a preferred result and then structuring an interpretive method that ensures the result. Instead, they argue, one should engage in principled interpretation to figure out what the Constitution truly means, and follow that meaning from there, even if it might lead to unexpected or undesirable consequences.

Baude and Paulsen take this position in their article as well. Here's an example of this point from their article, in which they critique Chief Justice (or, in this case, Circuit Justice) Chase's opinion in In re Griffin:

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy-consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds. Relatedly, judges do not get to make up new provisions of law in order to devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solution to textual literalism and its real and imagined policy inconveniences, a different kind of constitutional provision, one more like the Impeachment Clause and the Treason Clause. Put bluntly, Chase made up law that was not there in order to change law that was there but that he did not like. (p. 40)

As Baude and Paulsen advance this argument--both in the excerpt above, and in responding to McConnell's critique--they tend to treat concern over consequences as something distinct from a theory of interpretation. This, at least, is the impression I get when they claim to be following the Constitution's meaning wherever it will lead, rather than letting consequences dictate how the Constitution ought to be given effect. In particular, they argue that originalist interpretation--looking to the original public meaning of the Constitution--is the way to go, and pragmatic considerations are something other than interpretation entirely. Ramsey's characterization of "intuitive assessments" of modern needs suggests this as well--this isn't "interpretation," it's "intuition."

As foreshadowed above, all of builds from the assumption that originalism is the way to interpret the Constitution. If this is the case, than consideration of consequences does indeed seem to go beyond the interpretive process and lead to false conclusions. But as discussed earlier, this is not the case. It isn't originalism or nothing. And it isn't originalism or "intuition." Rather, there are multiple potential approaches to choose from. And, as it turns out, judges often employ multiple approaches, both across cases and within cases, when interpreting the Constitution--a method broadly labeled as "pluralist" interpretation. Baude and Paulsen seem to avoid this underlying debate over methodology, asserting an originalist approach from the outset and proceeding from there. (see, e.g., pp. 8-9). But the possibilities of alternate methodologies should at least qualify assertions that considerations beyond original meaning are "simply wrong."

One might object to my highlighting debate over alternate theories of constitutional interpretation by arguing that the majority of Supreme Court Justices are originalists, and that it therefore makes sense to take as given that the Court will employ an originalist method in interpreting Section Three (should the issue make its way to them). Paulsen, at least, seems to express such a view in his first interview with Amar, going so far as to suggest that the Court may side 9-0 in favor of Trump's in eligibility (with the originalist justices following the article, and the three liberal justices taking an approach more in line with Ramsey's "intuitive assessment" approach). 

I'm not as convinced. The Court's approach to originalism tends to be inconsistent at best, including in recent cases that many commentators mistakenly describe as originalist decisions. I suspect that some of the more conservative justices may be at least tempted to give in to political leanings. I also suspect that these leanings may join in a coalition with institutional concerns that prompt the Court to avoid ruling that Trump is disqualified out of a fear of political backlash. All of this should give pause to assumptions that the Court will embrace interpretive principles above politics.

But say we set aside the meta-theoretical debate and accept an originalist approach to interpretation. Even then, consequences of that method still may play a role in the overall interpretive process. Considerations beyond the text frequently play a role in interpretation when the text to be interpreted is broad, undefined, or otherwise capable of multiple meanings. In choosing how to give effect to that text--say, in selecting one of multiple potential meanings, including original meanings--judges may opt for an interpretation that has better consequences or, if the case involves invalidating a law, leaving the law in place out of deference to the democratic process. 

We can make the description of the process a bit more precise by distinguishing between linguistic meaning and legal meaning. Lawrence Solum does so in distinguishing the initial step of "interpretation" (deriving the linguistic meaning of a provision) from "construction" (giving legal effect to that meaning). Perhaps Baude and Paulsen have a stronger argument that consequences don't play a role in that first step of interpretation. But even then, I'm not sure if this is right, or if it matters. The possibility remains that a theory of interpretation (that does not account for consequences) may lead to multiple meanings, including broader and narrower interpretations in the Section Three context. Sure, we may be able to narrow things down to a smaller range of potential meanings using interpretation. But the entire debate may still center around which of those meanings ought to be accepted by actors tasked with putting interpretation into effect.

And that's the debate that Baude and Paulsen have chosen to enter. For one, their argument quoted above critiques how Chase "construe[d]" Section Three--strongly suggesting they're talking about how the language is constructed. But more fundamentally, they cannot simply dismiss the process in which semantic meaning translates to legal action through government action (whether by state secretaries of states or judges). After all, they've written an article that expresses conclusions regarding what Section Three requires of modern actors, and they therefore must take all considerations into account--both at the initial stage of determining the meaning of words on a page, to the next stage of how those meanings ought to be put into effect by legal actors.

I suspect the response to this is that the original semantic meaning of Section Three is so determinate (or, "thick,") that there's no need for construction. As noted at the outset, I'm not here to argue against Baude and Paulsen on their historical points, and they've done a great deal of legwork to set forth their argument. In making this argument, I assume that Baude and Paulsen have done a thorough job of canvassing the history, amassing the argument, and providing support for their conclusions.

Even so, proving a semantic meaning that is so thick that consequentialist arguments may simply be swept beside is a tall order. Remember, construction may be required where there are multiple potential original meanings. These multiple meanings may result from the inquiry originalism requires, which involves surveying a wide range of detailed, sometimes contradictory historical accounts. It may not be certain what the original meaning was from such an investigation. Alternatively, multiple meanings may be what the interpretive inquiry turns up. A thorough examination of the historical evidence may reveal that, at the time of ratification, people held different beliefs about the meaning of Section Three. 

To be sure, one may decide to go with what appears to be the most common meaning, or to avoid meanings that only seemed to exist in certain camps (say, critics of the Fourteenth Amendment, or only people with certain expertise). But this move of selecting between alternate meanings is itself a form of construction. And the question then becomes: why allow this form of construction, while dismissing alternative forms of construction that take into account the consequences of one interpretation over another?

Baude and Paulsen must address this question as critics continue to raise concerns over the practical implications of their arguments. Thus far, their move seems to be to distinguish their interpretive arguments from consequential considerations--considerations that they claim are irrelevant to the core interpretive inquiry. The discussion above, though, suggests why this may not be the case even if Baude and Paulsen have made a strong originalist showing.

As a final note in this already lengthy post, I do not rule out the possibility of other interpretive methods reaching the same conclusion as Baude and Paulsen. McConnell raises consequentialist concerns in one direction, but the consequences of a minimal reading of Section Three in the face of such flagrant misconduct by Trump may undermine fundamental qualifications for office in the short and long term that may outweigh potential abuse of the provision. And interpretive methods beyond originalism or pragmatism may also get to the same result. I confess that my political preferences align me with Baude and Paulsen's conclusions about disqualification, as I think that Trump's conduct is reprehensible and should dissuade any reasonable voter from supporting him. But it's still worth delving into the assumptions underlying the constitutional interpretation dimension of the debate, even if doing so might cast doubt on conclusions I find agreeable.

Choosing the President at Random?

Earlier this month, I became aware via the Legal History Blog that The Amendments Project at Harvard University had released a searchable archive of nearly all amendments that have been proposed to the US Constitution. Jill Lepore and David Woods Kemper are to thank for this incredible undertaking. The archive is available here.

From the announcement:

In total, the Amendments Project has compiled over 20,000 proposed amendments, including 11,000 officially introduced in Congress and 9,000 more put forward through petition. Compiling data from congressional records, the Congressional Petitions Database, and online petitions, the fully searchable database is the most comprehensive archive of attempted constitutional amendments to date. The search feature allows anyone to sort amendments by topic, date, sponsor, party affiliation, and type (e.g., petition, bill, etc.).

Naturally, I decided to poke around in the database to see what odd an interesting proposed amendments I could find. One of my favorites was proposed in a December 17, 1844 bill introduced by Ohio Representative Samuel Finley Vinton. Here's how it starts:

From and after the year one thousand eight hundred and sixty, the people in each State, entitled to vote for members of the House of Representatives of the United States, shall elect from among its citizens a candidate for the presidency of the United States; in which election a majority of all the votes given shall be necessary to a choice. If, upon the first vote in any State, no one person shall have a majority of all the votes given, another vote shall be had, which shall be confined to the two persons having the greatest number of votes at the former voting; and if, upon such second vote, the two persons voted for shall have an equal number of votes, the choice between them shall be determined by lot.

At first glance, this seemed straightforward. But the amendment's requirement that each state must elect "from among its citizens" a presidential candidate means that each state will be voting for a different candidate (assuming that one person cannot be a citizen of multiple states). As a result, each state will end up electing a different person to proceed to the next stage of the election process, where things get even more bizarre: 

The election of candidates in each State shall be certified to the Congress of the United States; and after the certificates of election in all of the States shall have been transmitted to Congress, uniform balls, equal in number to the whole number of members of the Senate and House of Representatives, shall be deposited in a box; and before depositing thereof, the name of each State in the United States shall be inscribed on as many of said balls as shall be equal to the whole number of its members in both branches of Congress. And in the presence of both houses of Congress a ball shall be drawn out by lot, and the candidate elected by the State the name of which is upon the ball drawn out shall be the President. All of the remaining balls having upon them the name of that State shall then be withdrawn from the box; when, from those still remaining, another ball shall be immediately drawn out, in like manner as the first, and the candidate elected by the State the name of which is on that ball shall be the Vice President.

The following paragraph of the proposed amendment goes on to note that Congress shall pass laws governing the specifics of the process. It further states that "[t]he second and fourth sections of the second article of the constitution of the United States, and the twelfth article of the amendment thereto, shall become null and void on the taking effect of this amendment." It is unclear why Sections Two and Four are targeted for nullification, as they concerns the power of the president and process of impeachment--while Section One concerns the manner of presidential elections. Perhaps a secondary goal of the proposed amendment is to negate the powers of the executive.

One can see that the process isn't entirely random. A candidate who wins the vote in more populous states will end up with more balls in the drawing box, increasing the probability of that candidate's eventual selection. But because each state elects one of its own citizens for the eventual drawing, the ultimate drawing remains largely randomized--as even the most populous states will have a small minority of overall balls in the drawing box.

It is unclear what compelled Vinton to introduce such a proposal. His daughter, Madeline Vinton Dahlgren, wrote a glowing appraisal of his life and career in the Ohio History Journal, which briefly mentions the amendment, giving it a bland description of "regulating the mode of election of the President and the Vice President." But there's no other discussion of the proposal beyond this brief point. Still, Vinton had a fairly accomplished legal career, and had previously been elected to Congress for seven terms before returning to the practice of law. He eventually decided to re-enter politics, and introduced the proposal during this second phase of his political career. He was considered for a number of high-level posts, but declined them. Overall, this doesn't give off the impression of a politician who is an erratic weirdo, likely to fire off extreme legislation and proposed amendments.

A possible explanation is that the amendment was meant to highlight problems with the existing system of presidential elections. Abolishing or reforming the electoral college has long been a subject of proposed amendments (as one will soon learn by perusing the database), and this proposal of a random ball drawing may have been meant as a parody of the existing system. The problematic nature of the vice presidential selection process may also reflect dissatisfaction with the office of the vice president in general, as Vinton, a Whig, was enduring the presidency of John Tyler, who became president after William Henry Harrison died after only 31 days in office. Tyler ended up acting at odds with the Whig Party's agenda, leading to his eventual expulsion from the party in 1841. Vinton, a Whig, likely shared his party's dissatisfaction with their former vice presidential candidate (a possibility bolstered by the tone with which Dahlgren discusses Tyler in her article).

This approach of proposing an amendment as a satirical message wasn't unprecedented at the time. Indeed, only five days earlier, another Ohio Representative, Joshua Reed Giddings, had introduced a petition of Ohio citizens seeking an amendment to the Constitution to condition representation in the legislature by reference to "free inhabitants" only--a change that would reduce the political power of southern states with substantial populations of enslaved people. Many similar petitions and proposals were introduced in Congress around this time, but this one included a noteworthy addition, stating that if apportionment based on free inhabitants was "impracticable," then "the animal property of the free States be represented, as well as the slave property of the slave-holding States." A few moments of thought over how to interpret or implement this last provision reveals it to be a nightmare--does it refer to domesticated animals? Animals in general? What sort of animals? Cows? Chickens? Fish? As it turns out, none of this matters. This language does not appear to be a serious proposal to amend the Constitution to give animals political power--rather it's a political statement against the level of political representation enjoyed by states permitting slavery (albeit by means of drawing an unfortunate parallel between enslaved people and livestock).

Whether Vinton's proposed amendment was similarly meant as more of a political statement than a concrete policy proposal remains unclear. I'll continue digging, and may end up writing more on this and other strange amendment in the near future.

In the meantime, I strongly urge you to check out the proposed amendment database! It's fairly easy to navigate, and, as noted in the announcement quoted above, searches can be tailored in many ways, including by year, party, sponsor, and issue. Jill Lepore and David Kemper are owed a great deal of thanks for this accomplishment.

[UPDATE: August 19, 2023: I've added revisions accounting for the requirement that each state must vote for one of its own citizens, which adds a further level of chaos to the process, but solves a previously-flagged problem of the same person winning both the presidency and vice presidency.]

Historical Analysis and Doing Your Own Research

Gregory Ablavsky authored a critical review of Akhil Amar's book, The Words That Made Us. Ablavsky's review was recently published in the Michigan Law Review. Here's the abstract:

This essay reviews Akhil Amar's recent constitutional history of the early United States, The Words That Made Us. In this volume, Amar seeks to offer a "fresh story of America" that provides a "usable past." I argue that the book fails on both fronts. On the contrary, much of what Amar peddles is very old, ignoring generations’ worth of scholarship while parroting a centuries-old nationalist constitutional hagiography. In particular, he believes that constitutional history must be, at core, a referendum on the handful of powerful men dubbed the Founders. His effort to defend them and the Constitution from critics paints him into difficult corners, including endorsing some dubious exculpatory narratives around the exclusion of women, Black people, and Native nations in early America.

One way forward toward a more inclusive, more usable constitutional history, I argue, is in the concept of a "constitutional conversation" that Amar uses to frame his book. In Amar's hands, this conversation becomes a narrow reconstruction of debates among what he calls the "Big Six" Founders. But for a generation, historians and scholars, including many in law schools, have offered a broader vision of the constitutional conversation highlighting how non-elite people, including subordinated groups, accessed and shaped constitutional law. But the work of synthesizing these accounts in a broader constitutional history has only just begun. This work, I argue, will offer both a fuller account of the constitutional conversation and a more usable past for a nation increasingly recognizing that it has always been a diverse and fractious place.

At his Legal Theory Blog, Lawrence Solum has a brief response to Ablavsky's review that includes a lengthy quote from a primary source Ablavsky cites, and the following note:

This is just one passage from a rich and interesting pamphlet, link above in the abstract.

The review itself is worth reading, but the tone is sharp and the substantive analysis of the actual content of the voices that Amar does not take into account is frequently thin. So, read Warren herself. Then track down and some of the other primary sources.

Amar will surely write another book about this period. Wouldn't it be lovely if he were to take up the challenge and write about "The Words That Could Have Made Us?"

Solum is an originalist who argues (like most academic originalists) that the Constitution should be interpreted based on the original public meaning of the text, as understood when the provision at issue was enacted. Solum is also one of the few originalists who've taken implementing originalism seriously, and has written extensively on how interpreters may attempt to derive original meaning. 

Many originalists, however, are more cursory in how judges and attorneys can take on the difficult task of uncovering the meaning of constitutional text written hundreds of years ago, and how the general public (or a reasonable, well-educated reader--there are variations) may have understood the constitution's text. For them (and, even for Solum), the job of uncovering original meaning falls to academics, and courts may then rely on their work.

Take Solum, who does extensive work to set forth a method of "triangulating" results reached through analysis of founding-era documents, historical immersion, and corpus linguistics. And yet, this method is ultimately one for the scholars rather than the practitioners. He acknowledges that in-depth historical immersion is beyond the capacity of judges, attorneys, and clerks, leading him to write:

[I]t seems likely that implementation of the Method of Triangulation will involve the production of originalist scholarship in the academy with consumption of that scholarship by the courts. (p. 1681)

Similarly, in their book, Originalism and the Good Constitution, John McGinnis and Michael Rappaport write that in an ideal originalist world, scholars will take the lead in determining original meaning:

[I]n a world dominated by originalism, academics would work to create the knowledge that would improve the performance of originalist judges and reinforce their inclination to be consistently originalist. (p. 198)

Randy Barnett, another originalist, argues in his book, Restoring the Lost Constitution: The Presumption of Liberty, that the original public meaning of quite a few terms have been discerned through recent legal scholarship. As it turns out, much of that scholarship was written by Barnett himself!

(This last book, unfortunately, is out of my reach as it's buried in a box in advance of a cross-country move. But the pages I'm referencing are 116-117 (of the 2014 revised edition), and I strongly suspect that the footnotes to Barnett's own work reference his writing on the Necessary and Proper Clause and the Commerce Clause).

What does this diversion have to do with the Ablavsky review and Solum's response? According to Solum, readers ought to dig into the primary sources themselves, as Ablavsky's "substantive analysis" of those sources is "thin." To be sure, Solum notes that the review is worth reading. But urging readers to dig into the sources--to "do their own research," as it were--suggests that something is lacking.

If such a label of primary source thinness holds against a twenty-page book review, does the same standard apply to judicial opinions? And, if so, what does this say to originalists' claims that judges can rely on legal scholarship that parses out the original meaning of constitutional provisions? Those books and articles aren't primary sources themselves. So should judges, like the readers of Ablavsky's book review, do their own research into the primary sources as well? Or are we to expect a lower standard of investigatory rigor from judges (whose decisions affect not only the parties before them, but all others affected by the constitutional provision at issue) than from legal academics?

All of this illustrates the bind that would-be originalist judges are in when attempting to determine original public meaning. These judges don't have as much time as legal scholars--they have non-constitutional cases to resolve, and dockets to clear. Resources before them are thin: the parties' briefs will be far from unbiased, and the same will likely be true of many amicus briefs, many of which are ultimately drafted by attorneys seeking to tailor their historical arguments and evidence to the interests of the clients they represent. And yet, if we take these circumstances into account and give judges the go-ahead to rely on secondary sources (many of which are authored by legal scholars rather than historians and edited by non-expert law students), we expect a lower level of historical rigor from the courts that end up making the law. It seems strange to expect less of those whose determinations end up making the difference.

As Ablavsky's review demonstrates, even experienced, prestigious legal scholars may overlook large swathes of relevant historical evidence when writing about the Constitution. This risk is amplified for judges--whose primary resources for determining meaning are the goal-oriented submissions of interested parties. I argue (along with Al Hiland) at length elsewhere that this poses serious problems for originalist theory. Amar's book, Ablavsky's review and Solum's response are further illustrations of this issue.

Disturbing the Peace in Libraries: An Statutory Interpretation Puzzle

Most of my research in recent weeks has veered away from constitutional interpretation. This has been a welcome change of pace as theoretical questions of interpretation and the judicial shenanigans this work tends to uncover can grate on the soul after a while. But even when I'm researching intricacies of state criminal laws pertaining to libraries, these theoretical questions have a way of creeping up on me.

Take Massachusetts' law against disturbing the peace in libraries:

Whoever wilfully disturbs persons assembled in a public library, or a reading room connected therewith, by making a noise or in any other manner during the time when such library or reading room is open to the public shall be punished as provided in the preceding section. (emphasis added)

This law is Massachusetts General Laws, Chapter 272, Section 41. As of today, the preceding code section appears to be Section 40A, which provides:

Whoever gives, sells, delivers or has in his possession any alcoholic beverage, except for medicinal purposes, in any public school building, or on any premises used for public school purposes and under the charge of a school committee or other public board or officer, shall be punished by imprisonment for not more than thirty days or by a fine of not more than one hundred dollars, or both; provided, however, that a school committee of a city, town or district may authorize a public or nonprofit organization using a public school building with its permission during non school hours to possess and sell alcoholic beverages therein provided such nonprofit organization is properly licensed under the provisions of section fourteen of chapter one hundred and thirty-eight.

While Section 40A contains a punishment provision (imprisonment for 30 days and/or a $100 fine), it seems like a bit of an odd reference for Section 41's prohibition of disturbing the peace. Sure, selling or distributing alcohol in schools may constitute (or lead to) a disturbance of the peace, but the conduct at issue seems quite a bit different than the general disturbance covered in Section 41. Indeed, a better match appears to be the section preceding 40A--Section 40:

Whoever willfully interrupts or disturbs an assembly of people meeting for a lawful purpose shall be punished by imprisonment for not more than 1 month or by a fine of not more than $50; provided, however, that an elementary or secondary student shall not be adjudged a delinquent child for an alleged violation of this section for such conduct within school buildings or on school grounds or in the course of school-related events.

This section also includes a punishment provision--although it's slightly different from Section 40A, providing for punishment of up to a $50 fine (rather than $100) and imprisonment for one month.

The first instance of Chapter 272 of the General Laws that I could find is in the version of the General Laws that went into effect in 1921. That version of the General Laws includes both Section 40 and 41, but not Section 41A. It appears that Section 40 was enacted in 1849, and that Section 41 was enacted in 1885. Section 40A is nowhere to be found, as it wasn't enacted until 1962.

With all of this in mind, what is the meaning of "the preceding section" in Section 41? Do we read it from a present perspective and interpret it to mean what is now the preceding section--Section 40A? Or do we read it in the manner it would have been read in 1885 when Section 41 was enacted, at which point "the preceding section" seems to refer to to Section 40? 

Even if we decide that we must look to the original, 1885 meaning of the statute, the questions don't end there. How generally are we to interpret the original meaning of Section 41? A specific reading might be that "the preceding section" referred to a specific law--whatever was the preceding section at the time Section 41 was enacted. Under this approach, even if that law is later moved to a different chapter or repealed altogether, it would still inform the meaning of Section 41's penalty provision. An alternate, less specific reading would interpret "the preceding section" to refer to whatever section preceded Section 41 at the time of enactment. As it happened, that was Section 40 as it was written in 1855. The result the same as the previous, more specific reading, but the meaning employed is more abstract. 

Things change, however, if we get even more general with our reading of "the preceding section," and read it as expressing an original intent to reference whatever statute appears, at any time, immediately prior to section 41. This abstract reading would lead us back to the same result as a present-tense reading of the phrase, as a generalized statement abut whatever appears in the preceding section may change in meaning over time as that reference point shifts with the enactment of Section 40A. Or, to look at it a different way, this reading treats the enactment of Section 40A as also changing the meaning of Section 41. And now that we've laid out all these alternate formulation of the original meaning of Section 41, how are we to decide between these varying levels of generality?

To date, it does not appear that Massachusetts' courts have wrestled with these interpretive questions. It therefore remains unclear whether disturbing the peace in a library results in a fine of $50 or $100. Ever the optimist, I continue to hold out hope that the Supreme Court will take up a case that resolves this issue. 

Originalism and the Meaning of "Twenty Dollars": A Response to Heaney

I recently shared a draft of my forthcoming essay in the Creighton Law Review. Here's the abstract:

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment’s reference to “twenty dollars” means—both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal actors what “twenty dollars” means, originalism instead leads to a range of highly divergent possibilities. The original meaning of “twenty dollars”—applied today—may mean anywhere from twenty modern dollars, to a little under four hundred dollars, to just about seven thousand dollars. In doing so, I illustrate high-level debates between originalists and their critics, and how these debates tend to stray away from the needs of actual actors. Originalist appeals to construction and distinguishing semantic and legal meaning are cold comfort to the hapless attorney or judge who just wants to know what “twenty dollars” means. Moreover, if originalism cannot tell modern legal actors what “twenty dollars” means, there’s little hope that it will provide meaningful assistance in resolving questions over broader, loaded terms like “due process,” “cruel and unusual punishment,” “equal protection,” and other provisions that draw the bulk of scholarly attention and constitutional litigation.

The essay was initially inspired by Lawrence Solum's article, "Surprising Originalism," in which he discusses the original meaning of the Seventh Amendment's "twenty dollars" clause at some length. Solum focuses on the phrase as an example of "linguistic drift"--the idea that the meaning of words changes over time. Solum argues that while "twenty dollars" may now seem to refer to a twenty-dollar bill (or twenty one-dollar bills--or whatever combination of bills and coins you may like), the original meaning of the phrase actually refers to the Spanish silver dollar (or "piece of eight") which was widely treated as a dollar in the founding era.

I won't get into the weeds of my arguments here, but, in short, even if we agree with Solum about the original meaning of "dollar," it's unclear what the term means for those applying it today. Do we equate the Seventh Amendment's language with the amount of silver contained in the Spanish silver dollar? Do we equate it with how much a founding-era silver dollar would fetch at auction? Do we tie the meaning to Congress's then-present definition of dollar? Do we look to Spain's current currency as a reference point? Depending on how we answer the question, the meaning of "twenty dollars" ranges between twenty modern US dollars and approximately $7,000. 

Additionally, there's a question over what the "original sense" of "twenty dollars" is, and whether it should be what we use in applying the Seventh Amendment to modern cases. Christopher Green distinguishes the sense of terms from their references, arguing that we should focus on the original sense of the Constitution, rather than particular referents. One could argue that the original "sense" of "dollar" is what Congress decides the term means through legislation, while objects like silver dollars and paper money are referents--objects to which the sense refers. This calls Solum's original point into question, although perhaps it doesn't--depending on how general a view we take of the original sense.

(This is, admittedly, an oversimplification, so those interested or with questions should check out the essay itself. It's not that long, don't worry!)

James Heaney has posted a thoughtful and thorough response to the essay at his Substack, De Civitate. Heaney compares my critique of originalism to similar arguments by Michael Stokes Paulsen against nonoriginalism. As Heaney summarizes:

Paulsen takes the constitutional provision that says “the president must be at least thirty-five years old” and applies the prevailing non-originalist approach to it. This approach interprets the text according to its purpose and the broader spirit of the Constitution in light of changing modern conditions, not the literal words “thirty-five years.”

As a result, Paulsen argues (successfully, in my view) that a court following modern non-originalist constitutional theory could (perhaps must) hold that no one under the age of 60 can be president. . . . This was obviously absurd, so the paper demonstrated that the “living constitution” theory had serious flaws, and originalism was the way to go instead.

With this background, Heaney pushes back on my argument, arguing (again--in summary) that all methods of interpretation result in some uncertainty, and originalism's uncertainty over "twenty dollars" is no different. Heaney argues that originalism still does a fair amount of useful work even if it doesn't get us all the way to a final answer--we at least have a range of potential meanings that's narrow enough to work with. Heaney goes on to take a stab at answering the question of what "twenty dollars" means, drawing on original meaning and the Coinage Clause of Article I, section 8 to argue, in essence, that a dollar is whatever Congress defines it to be. To an extent, this reflects the original sense approach that I discuss above, and in the essay, but it also reminds me of the approach that John McGinnis and Michael Rappaport tend to advocate, which is to read the Constitution as consisting largely (if not entirely) of legal terms with technical meanings readily apparent to those in the founding era. In doing so, McGinnis and Rappaport argue, one can circumvent the unpredictable and malleable process of applying original meaning to present circumstances through "constitutional construction." Instead, the thick, technical original meaning is enough to do the job.

Heaney closes his discussion by expressing frustration with certain critiques of originalism that he deems the "Eric Segall school of constitutional thinking":

Their conclusion is always, always the same: “I don’t think originalism can honestly solve the problem I have posed, therefore originalism is a worthless fraud and originalists are just making up justifications for imposing their own policy preferences on the land.”

I do think originalism can honestly solve the problems these professors have posed, including the one in this paper. Originalism has been growing in response to academic critique for forty years, from the fragile beginnings of Edwin Meese, Robert Bork, and Original Intent back before I was born, to its present young adulthood as Originalist-Textualism. The method is not perfect, nor is it even finished growing, but originalism is trying to provide an interpretive methodology for judges that isn’t just “I’m an unelected judge and I think abortions are good so abortion is a constitutional right now” (or “I like babies so abortion is unconstitutional now”). When originalist theory falls short (and it has), originalist scholars try to find a path forward.

After all, what’s the alternative? The Eric Segall school accuses originalist judges of covertly imposing their own value judgments on the nation… but their theory of constitutional interpretation is that judges should openly impose their own value judgments! I try my hardest to protect my legal objectivity from being corrupted by my value judgments, which is admittedly hard, and the other side jeers at my side whenever we slip (as we all do)… but they tell me that it is impossible to be objective, that I should let my value judgments drive my legal theorizing!

Heaney does acknowledge that I do offer a potential alternative to originalism and highlights another paper I've written in which I propose a "present public meaning" approach to interpretation. He suggests that this approach may still lead to unusual or absurd results, focusing on Article IV, section 4, which states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Heaney argues that a present public meaning approach could result in a reading that the Constitution requires the government of each state to be made up of officials associated with the Republican party. While some people (Heaney admits to being one of them) may be pleased with this outcome, Heaney argues that many would likely see this as an absurd result.

Throughout his essay, Heaney's discussion is thorough and approachable, and I think his answer regarding the meaning of twenty dollars is well-argued (although I'm not sure it is the correct answer as I remain unconvinced that there is one correct answer). I do have some qualms with some of his arguments, particularly his characterization of nonoriginalists and their critiques. To this end, I offer the following reactions to Heaney's discussion:

First, in his discussion of Paulsen's argument and his critique of the "Eric Segall school" of originalism critiques, Heaney falls into a common trap of assuming the undertheorization of nonoriginalist interpretive methods. This approach to nonoriginalism to portray it as  atextualist purposivism (as portrayed by Paulsen) or as little more than the notion that judges should decide cases based on their value judgments. When Heaney isn't using this characterization, he resorts to a near-parodical version of atextualist purposivism in summarizing Paulsen's discussion of nonoriginalist methods. 

But nonoriginalism isn't undertheorized, and many of its variations rely on the Constitution's text. Indeed, Heaney acknowledges this by highlighting the present public meaning approach that Frederick Schauer and I set forth. Other approaches include a common law approach to interpretation (most prominently set forth by David Strauss), which focuses more on constitutional case law that grows over time--providing constraint through stare decisis, but permitting gradual change as society, technology, and other relevant facts change. Even theories like Dworkin's moral readings approach, which lean into interpretations that further certain moral goals, also look to whether the readings fit with prior case law and the Constitution's text as a whole.

Defining nonoriginalism as little more than judging based on values isn't unique to Heaney's response. Many originalists, including those who, at times, acknowledge the sophistication and development of nonoriginalist theories, fall into this habit. In fact, I've seen so much of this that one of my current (though early-stage) projects is to develop a taxonomy of these living constitutionalist strawmen and how they fit into (and detract from) broader debates over originalism. Depending on how smoothly my move to Texas goes this summer (and assuming my research bears fruit), I expect to have a draft ready in sometime between two months and one year from now. If this range isn't all that helpful, think of how attorneys and judges trying to interpret the Seventh Amendment must feel.

Second, in Heaney's critique of Eric Segall's work, he seems to downplay the importance of transparency in constitutional interpretation. As I tend to see things (and as Segall sees things as well--based on what he says in about every other episode of his excellent podcast), value judgments are already doing most, if not all, of the significant work in decisions that are purportedly originalist or based on history and tradition. The difference between originalism and an explicitly value-based approach to interpretation is that the originalists hide behind a smokescreen of purportedly neutral historical analysis while reaching outcomes indistinguishable from those an explicitly value-based method would reach. I examine this contrast in the context of common good constitutionalism at a bit more length in an essay here.

Third, while Heaney argues that originalism still does meaningful work by narrowing a range of potential interpretations, this work still leaves much to be desired by legal actors who must arrive at a single outcome. Originalism is a textualist theory, and the text does some work. I'll readily admit that originalism tells us that "twenty dollars" does not mean something like "armadillo," "Belgium," or "courage." But this work isn't enough, as it still leaves the litigant or judge with a range of meanings extending from twenty dollars to $7,000--not the most helpful situation for interpreters. And it's unclear what work originalism does beyond ahistorical textualism other than exacerbating uncertainty. Finally, I suspect that the range of potential interpretations may become even harder to work with as the provisions at issue become more morally loaded and abstract.

Fourth, I appreciate that Heaney highlighted my article on present public meaning--the final version of which is finally published and posted to SSRN. Check it out!

Heaney argues that the present public meaning approach may lead to absurd results, highlighting the Article IV, Section 4 guarantee of "a Republican form of government." Heaney argues that this clause, under the present public meaning approach, could be read as requiring the federal government to ensure that the Republican party remains in control of governments at the state level. While I'm still thinking through this particular argument, I think that the argument about reading provisions in context--an argument I make in response to a similar potential argument involving the same clause's mention of "domestic Violence"--likely forecloses Heaney's hypothetical interpretation. 

Still, I have some initial thoughts on the issue. Looking at the clause from a modern perspective, interpreters will still likely acknowledge that there are multiple definitions of "Republican," including the political party, and a form of government that derives its power from the people--either directly or through the use of representatives. The question then becomes, which reading fits with the context of the clause as a whole and the document as a whole? From both perspectives, the latter interpretation--"Republican" as a representative government, rather than the political party--fits best. Taking the clause as a whole, the term "Republican" must be read in the context of the text immediately following, "form of government." This doesn't seem to fit with "Republican" as political party--as a party designation is not the same as a form of government. While Republican ideology may call for a certain form of government, the fact that the form of government and the party are two separate concepts strains a reading of "Republican form of government" to mean a government made up of Republicans. Heaney (or anyone used to fighting over contract language) may counter that "Republican" is capitalized, which lends strength to the "Republican Party" interpretation. But, again, context undermines this argument, as the clause as a whole (as well as much of the Constitution) includes frequent, sporadic capitalization--undermining the argument that capitalization carries special significance. Finally, in the context of the Constitution as a whole, which consists of foundational provisions for the operation of government without language explicitly acknowledging the existence of political parties, a "Republican Party" reading is out of place. All of this follows from an examination of context alone, rather than a recourse to original intent or original meaning.

Again, these are only my initial, half-formed thoughts on the "Republican" example. I'll likely develop this, and other examples, in what I hope will be an eventual paper on the notion of linguistic drift and why concerns about it are overblown. The paper is relatively high on my to-write list, but it may not materialize until a while from now (the living constitutionalism paper I highlighted earlier, for example, is higher on the priority list). So, based on my earlier estimate, a draft of this paper may be ready within two months and one week and a year and a half from now. Stay tuned!

I appreciate Heaney's discussion of my article, and I'll keep his points in mind during revisions, which are due in just over a week. Will I be able to adequately account for these critiques, account for editor comments, and do my own thorough review while grading? We'll see!

"Business as Usual" For Originalism?

I've argued at length elsewhere that three of the highest-profile cases of the Supreme Court's October 2021 term marked a shift away from an originalist approach to constitutional interpretation. In Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Kennedy v. Bremerton School District, the Court set forth a "history and tradition" approach to determining the scope of constitutional rights. In doing so, the Court elevated historical practices to a level at which these practices define the scope of constitutional rights. The Court pays lip service to the Constitution's text, but a close reading of these opinions reveals that the text plays no meaningful role in deciding the outcome. It is therefore a mistake to call these opinions originalist, as many have.

Enter Randy Barnett and Lawrence Solum and their recent draft article, "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." Barnett and Solum advance what Michael Ramsey at The Originalist Blog describes as "an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist."

From the article's abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Barnett and Solum describe the use of history and tradition tests as "business as usual" for the Supreme Court, and argue that Dobbs, Bruen, and Kennedy "contain scant evidence of the emergence of a new approach to constitutional interpretation that would supplant either Public Meaning Originalism or Constitutional Pluralism." (p. 26). This got my attention, as I've concluded the opposite.

Walking through Barnett and Solum's analysis of Dobbs, Bruen, and Kennedy reveals the lengths one must go to in order to conclude that these cases are consistent with an originalist approach to constitutional interpretation. Despite Barnett and Solum's conclusions about the healthy state of originalism after the October 2021 term, their analysis of each case acknowledges that each opinion strays from typical originalist analysis in varying degrees. While they attempt to account for these deviations and present each case in as originalist a light as possible, they fail to demonstrate that the Court's recent decisions reflect an originalist methodology. And this is important--these were some of the biggest cases of the term, and in recent memory. If originalism isn't how the Court decides these important cases, this casts doubt on originalism's explanatory and predictive value.

Appointing Expert Historians in Second Amendment Cases

Second Amendment law is in a strange place right now. The Supreme Court's ruling this past summer in New York State Rifle & Pistol Association, Inc. v. Bruen struck down New York's licensing scheme for the concealed carry of firearms. More dramatically, though, the opinion rejected a consensus approach that lower courts had adopted to test the constitutionality of firearms restrictions. Rather than subject these laws to varying degrees of scrutiny (determining the government interest at issue and whether the law was sufficiently tailored to achieve that interest), the Court instead held that the constitutionality of gun restrictions was solely a question of history and tradition:

When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."

I've critiqued this approach to the Second Amendment at length here. To summarize my primary concerns: a focus on history and tradition forces courts out of their legal wheelhouse and into unfamiliar territory of undertaking rigorous historical analysis and attempting to analogize it to the modern day. The Bruen Court provides little guidance on how to analogize historic laws, simply stating that courts must evaluate whether they result in similar restrictions to the law being evaluated, and whether they were motivated by comparable concerns. Questions over how how far analogies may extend (e.g., how much support partial restrictions are due), how many laws are sufficient to establish a tradition, how old or recent laws must be to be relevant, are all unresolved and subjected to inconsistent analysis in the Court's own opinions.

My criticism of the history and tradition approach aside, what are lower courts to do now that this is how Second Amendment analysis is to be done. A few judges have suggested that independent experts on history may provide guidance, acknowledging that courts and attorneys lack the expertise to do so. Judge Carlton Reeves, for example, ordered the parties to a dispute over the constitutionality of a gun restriction to indicate their position on whether a consulting expert should be appointed. As it happens, both parties opposed the notion, with the United States raising concerns over how expensive such an approach would be if applied on a wide basis. This concern is unconvincing. The Supreme Court has ruled that gun restrictions must now be evaluated against history and tradition, and judges and lawyers tend not to be trained historians. If engaging in rigorous and accurate analysis is the goal, the Court has effectively required the costly measures required to accomplish correct results.

At the Volokh Conspiracy, Stephen Halbrook argues against the employment of historical experts to advise courts on the historic landscape of gun restrictions in Second Amendment cases. There are two focal points of Halbrook's arguments. First, Halbrook raises concerns over biased experts. Second, Halbrook argues that it is courts that are required to determine what the law is--not experts, and that appointing experts would upset this balance. There are problems with both of these arguments, and Halbrook's argument as a whole is a good example of those arguing for purportedly neutral approaches to constitutional interpretation doing so out of a desire for specific outcomes rather than accuracy or neutrality.

Halbrook starts by with an anecdote of a scholar who engaged in fraudulent Second Amendment research--suggesting that experts appointed by courts may end up engaging in similar analysis:

Turns out that Michael A. Bellesiles, author of Arming America, fabricated sources, distorted facts, and committed fraud. The Bancroft Prize was rescinded and Emory University fired him. But some judges, professors, and activists had welcomed his thesis with open arms because he attacked America's "gun culture" and derided the right to bear arms. A Ninth Circuit opinion relied on him in support of its "collective rights" holding about the Second Amendment, but the embarrassing cite was removed after the scandal broke. Until then, Bellesiles would have been the perfect candidate for a court to appoint as an "expert" on history.

As for experts who have not engaged in such flagrant misconduct, Halbrook suggests that they are almost just as bad:

Judge Reeves went on to quote Patrick Charles as stating that adherents of the Standard Model of the Second Amendment, who read the right to have arms as an individual right, as "fail[ing] to adhere to even the most basic norms of historical objectivity and methodology." And he quotes Saul Cornell, writing in Slate, accusing the Court in Bruen of having "cherry picked" the historical record. Both Charles and Cornell are partisan historians who oppose Second Amendment rights in their writings and amicus briefs.

. . . 

If the parties do submit expert reports in Second Amendment cases, judges should treat them for what they essentially are—amicus briefs. And courts should be particularly wary of "experts" whose views have repeatedly been rejected by the Supreme Court. If the expert joined an amicus brief supporting the government in Heller, McDonald, or Bruen, that is a pretty good sign the expert's views are out of step with the Supreme Court.

Halbrook does not take a similarly critical approach to how courts are supposed to analyze history and tradition without appointing experts. Were he to do so, his argument would fall apart. Halbrook's critique is based on the possibility that experts will engage in incorrect or biased analysis. But this possibility becomes a guarantee absent expert analysis--in which only the submissions of attorneys advocating for their clients form the basis of what is supposed to be a thorough and balanced analysis of the relevant history.

Additionally, Halbrook's view of what would render an expert's analysis untrustworthy is revealing. He suggests that any analysis that is out of step with the Court's recent opinions on the Second Amendment are unreliable--particularly in the last paragraph of his analysis. It seems that Halbrook's metric for accurate historical analysis is what the Court has declared the history to be, rather than what the history actually was. Under such a formulation, expert opinions are only reliable to the extent that they comport with the rulings of the non-historian members of the Court's majority in prior Second Amendment cases. This is not only a bonkers approach to evaluating historical analysis, but it is designed to guarantee outcomes overturning restrictions on gun possession.

What about the second argument, that it is the province of the Court, rather than experts, to determine what the law is? Halbrook writes:

Both Heller and Bruen came to the Supreme Court on decisions granting motions to dismiss. They were decided on the basis of the complaints and the parties' briefs with no factual development. The Supreme Court was urged to decline to rule on the ultimate merits in both cases but rather to send the cases back down to the lower courts for more development—in Heller by the U.S. Solicitor General and in Bruen by the N.Y. Attorney General. But the Court rejected the suggestion in both cases, and instead conducted its own analysis of the relevant historical materials to determine the scope of the Second Amendment.

This was proper because historical information does not consist of the types of facts that are determined in a trial through competing witness and expert testimony. In legal jargon, historical facts are "legislative facts," not "adjudicative facts." As Judge Posner put it in Moore v. Madigan (7th Cir. 2012), striking down Illinois's ban on carrying firearms outside the home, "Only adjudicative facts are determined in trials, and only legislative facts are relevant to the constitutionality of the Illinois gun law." That is going to be true in pretty much every Second Amendment case after Bruen, as the historical inquiry the courts are required to undertake is purely a matter of legislative facts. As Bruen noted, the historical inquiry "that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge."

Halbrook and the Court may deem historical facts as legislative facts that need not be developed by the parties, but this bare proclamation does not undo the reality that history, tradition, and the relevant context can be complicated and require a fair amount of work and training if accurate results are to be obtained. For example, the Bruen majority distinguished England's Statute of Northampton as largely irrelevant as an analogous historical restriction on the carrying of firearms. One of its bases for doing so was to note that the statute, in its early days, applied to the carrying of armor and larger weapons like halberds. Knives, which the Court contended were most analogous to modern day handguns, were not similarly restricted. In doing so, though, the Court overlooked a great deal of relevant historical context. Knives, while sometimes used for combat and self-defense, were also highly functional--especially in the medieval era. As an example of one overlooked function, the Statute of Northampton was enacted hundreds of years before the fork was introduced to England--before then, knives played a central role as a utensil. The Bruen majority appears to have overlooked all of this context, resulting in a misleading claim of a close analogy between handguns and knives. (For citations and other examples of the Bruen Court's failure to account for the complexity of historical analysis, see my article here).

This is only one example of how it is misleading to treat the original meaning of constitutional provisions, or the history and tradition of gun restrictions, as nothing more than legislative facts. To engage in historical analogizing, one must be aware not only of the text of prior laws, but the context of their enactment, how they were applied, and what their text meant to those who were alive at the time. This is a complex, fact-intensive undertaking, and simply declaring this to be a simple task that judges can undertake at the pleading stage does not change this. Instead, such arguments and proclamations are a tactic designed to draw attention away from the complexities of the approach the Court has adopted.

Arguments like Halbrook's should raise alarms to anyone who is seriously committed to the task of interpreting the Constitution based on its original meaning or in a manner that aligns with history and tradition. Under the guise of neutrality and the illusion of simplicity, advocates like Halbrook urge a method of interpretation that is designed to accomplish specific policy outcomes. The history and tradition approach has many problems. But if it is the approach that courts must take, there may be ways to make it better. Appointing experts is one such approach. Those who oppose this proposal are not concerned with accuracy--instead they treat the Court's precedent as historical gospel and seek only to perpetuate desired policy goals.