Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.
“Original public meaning” has become the prevailing method of constitutional interpretation at the Supreme Court. The idea, which is at the heart of originalism, will be familiar to many SCOTUSblog readers. It is that the text of the Constitution must be understood and enforced by the court today in the same way that the text was understood by members of the public at the time the text became law.
The rationale behind this idea is that because the Constitution is binding law, the meaning of its words must be fixed at the time these words were adopted into law. As Justice Amy Coney Barrett put this point in her concurrence in the case of United States v. Rahimi, “the meaning of constitutional text is fixed at the time of its ratification” because “[r]atification is a democratic act that renders constitutional text part of our fundamental law.” (In this short essay, I focus on originalism as espoused by Barrett. There are other versions, including “original law originalism” as articulated by Professors William Baude and Stephen Sachs, that deserve separate attention in subsequent treatments of this topic.)
I do not believe that Barrett’s conclusion follows from her premise. Of course, the Constitution’s text is “our fundamental law” and became so upon its ratification. But this truth does not mean that the text must be interpreted according to its original public meaning.
Instead, it is possible to interpret the Constitution according to its contemporary public meaning, and I maintain that doing so is a superior way to understand the Constitution as binding law – and is a method of interpretation that enables the Constitution to better serve as the foundational charter for a democratic form of government.
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First, let’s distinguish between original public meaning and contemporary public meaning. Contemporary public meaning is like original public meaning except for one key difference: when the public’s understanding of the Constitution’s text is ascertained. Advocates of original public meaning endeavor, as best they can, to determine what the average member of the public understood the words of the Constitution to mean at the time of their ratification. This endeavor is supposed to be as objective as possible, by searching for all available sources – like dictionaries, newspapers, pamphlets, and other public documents – that indicate what a reasonable person believed, or would have believed, the clauses of the Constitution to convey linguistically.
The search for contemporary public meaning is no different methodologically. It is a good faith effort to determine, as best as one can, what the average member of the public today understands the words of the Constitution to mean. This search, too, must be as objective as possible, relying on available public sources. These can be the same sort of sources used to identify original public meaning (like those listed above), but they can also be types of sources that didn’t exist at the time of the Constitution’s ratification, such as modern dictionaries that track current linguistic usage.
Original public meaning is consulted when the words of the Constitution – like “equal protection” or “freedom of speech” or “the right to bear arms” – are not self-defining but instead require interpretation. The quest for original public meaning does not seek an author’s subjective intent in choosing the Constitution’s words. (Barrett, among others, is emphatic on this point in her book, calling it a “misconception” to think that “originalism” is “a search for ‘the framers’ intent.’”) Instead, original public meaning concerns what an audience – the public at the time – considered the author’s words to convey.
Contemporary public meaning equally concerns what an audience understands the Constitution’s text to mean. It’s just that the relevant audience for contemporary public meaning is not the public at the time of the text’s ratification, but rather the public right now.
The choice between original public meaning and contemporary public meaning as the appropriate method for constitutional interpretation can’t be made based on a theory of language. It is made based on a theory of law. And original public meaning is a bad theory of law, one that has been superseded by a much better one.
To understand why, we need to wade a bit into legal theory. Original public meaning, as a method of constitutional interpretation, depends upon what is known as the “command” version of legal positivism associated with the 19th century British philosopher John Austin. (“Positivism” means that the law was adopted, or posited, by some lawmaking institution of government, and is not “natural law” that exists without being adopted by some human agency.) This legal theory holds that the law is the law only because it is the command uttered by a sovereign lawgiver. Applying this theory to the Constitution asserts that the Constitution is law because “We the People” – as an exercise of popular sovereignty – adopted it as “the supreme law of the land” through a series of ratifying conventions in the states. Because the utterance of the sovereign (that is, the “People”) is what made the Constitution law, that utterance must be interpreted according to its public meaning at the time it was uttered – or so this theory would have it.
Lest anyone doubt that this “command” theory of law underlies original public meaning as the method for interpreting the Constitution, Barrett makes this point crystal clear. As she writes in her book, quoting Professor Steven Smith: “what counts as law—as valid, enforceable law—is what human beings enact, and that the meaning of that law is what those human beings understood it to be.” Then she repeats the same point in her own words: “If you start, as I do, from the premise that the Constitution’s enacted text is law, then the question for the judge is how to interpret it. And the answer depends on the meaning of the language that the lawmakers employed—not on the perspective of some other lens.”
Austin’s (and Barrett’s) “command” theory of legal positivism, however, has been superseded by what is called the “rule of recognition” version of legal positivism articulated by H.L.A. Hart, a 20th century philosopher. “Rule of recognition” positivism explains that law adopted (or posited) by a lawgiver does not attain the status of law simply because it is the lawgiver’s command – what law, after all, gave that lawgiver the authority to issue a command? – but because there is ongoing social acceptance of an ultimate rule (the “rule of recognition”) from which the authority of all other rules within the legal system flow.
Applying “rule of recognition” positivism to the Constitution shows that the Constitution is the “supreme law of the land” not because the document itself asserts that proposition (any piece of paper could, but it wouldn’t make that piece of paper law), nor because ratifying conventions purported to make the Constitution binding law (those ratifying conventions had no legal authority to do that according to the Articles of Confederation, which was the prior law of the United States), but because the people of the United States as a society decided to accept the Constitution as the ultimate law for this society and have continued to accept it as such (except for during the Civil War, when the secessionist southern states refused to do so).
“Rule of recognition” positivism does not require original public meaning as the method of constitutional interpretation. In fact, contemporary public meaning fits better with “rule of recognition” positivism than original public meaning. Because “rule of recognition” positivism sees the Constitution as currently operative law in the United States only because the American public continues to accept it as the ultimate law for the U.S., it makes more sense to interpret the words of the Constitution according to how the public today understands those words rather than how the public understood them at the time they were originally uttered. In other words, the ultimate law that the public accepts as society’s “rule of recognition” is what the public understands this ultimate law to mean.
But, perhaps even more importantly, contemporary public meaning is also a better interpretative method for a democratic form of government. A democracy needs a foundational charter to establish the rules and procedures by which the citizenry governs itself. Obviously, this foundational charter cannot change its provisions all the time. That instability would produce chaos and make self-government impossible. Accordingly, the text of the foundational charter will remain fixed except as altered through procedures for its amendment specified in its text. And insofar as the text of the foundational charter remains unamended, it becomes the instrument of self-government for new generations of the citizenry. If this document is to remain a vehicle for genuine self-rule by these new generations, then it must be interpreted according to how each new generation understands its words. Otherwise, it becomes the rule of ancestors over the present generation, and that is inconsistent with the essential idea of democracy as the government of an existing citizenry.
This proposition especially applies to the United States and its Constitution. Not only is the Constitution the oldest among the nations of the world, but it also has an especially difficult procedure for amendment – and was adopted at a time when the conception of democratic self-government was altogether inadequate from the vantage point of today. We all know these deficiencies: women couldn’t vote, Blacks were enslaved, and even white men were subject to wealth-based restrictions on the franchise. Although these specific deviations from true democracy have been redressed through constitutional amendments, the rest of the Constitution’s provisions that remain in effect were adopted when these undemocratic conditions prevailed. If the currently operative provisions of the Constitution are to function as a form of self-government, they can’t be interpreted according to the understanding of them when the right of democratic participation was so limited; instead, to qualify as democratic, these currently operative provisions must be interpreted according to how they are understood by the totality of the self-governing citizenry as it exists today. Judges should pursue the more democratically appropriate, and thus more normatively attractive, approach to constitutional law.
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In practice, it is possible that original public meaning and contemporary public meaning may reach the same result in many cases. Indeed, it makes sense to believe presumptively that they are the same, because subsequent generations are inclined to understand the same words in the same way as their predecessors did. But when there is good reason to believe that contemporary public understanding of the Constitution’s text differs from the original public understanding of that text – as in the case of the “equal protection” clause, which has a much broader contemporary public meaning than its original public meaning (for example, in 1868 it clearly did not require any equality of voting rights) – the appropriate method of constitutional interpretation for America’s democracy is to follow contemporary public meaning and not original public meaning.
Neither method of constitutional interpretation is easy. Barrett has admitted this for original public meaning. (“I’m not an originalist because I think history yields easy answers or prevents bad judging. I’m an originalist because I think it’s the right way to think about law.”) The same acknowledgement applies for contemporary public meaning (although it derives from a better way to think about law). There will be hard calls to make about whether, for example, “the right of the people to keep and bear Arms” has the same public meaning today as it did in 1791. And with either interpretative method, it is imperative that judges respect the limits of their role and exercise appropriate judicial restraint. Doubtful cases ordinarily should cause deference to legislative judgments. Thus, when the contemporary public meaning of a clause is unclear, courts should sustain the will of the legislature as an exercise of democracy.
Moreover, the method of contemporary public meaning is not the same as “living” constitutionalism, insofar as that term implies that judges have the authority to discern a moral purpose to the Constitution’s clauses and impose that moral purpose even when democratic legislatures disagree. The method of contemporary public meaning accepts the premise that the text itself, and not any aspirational moral purpose, controls. What is at issue is how to determine the meaning of that binding text, and the method of contemporary public meaning maintains that it is the current public understanding of the text that determines how this controlling text applies in any current case.
It is also important to recognize that contemporary public meaning is not a complete account of constitutional adjudication. There is the important role for precedent to supply the answer in litigation. And some constitutional questions call for the application of other principles – like the separation of powers – rather than the interpretation of specific constitutional clauses.
Still, with those qualifications in mind, the Supreme Court ought to abandon its current adherence to original public meaning and instead recognize the superiority of contemporary public meaning as the way to interpret the nation’s charter for self-government.
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