This assertion trades implicitly on the notion that originalism represents a single, coherent constitutional theory, against which are arrayed the disparate nonoriginalist alternatives. Originalist rhetoric paints a powerful picture of originalism as a consistent, coherent theory that has stood the test of time while countless other convoluted theories have come and gone, all so plainly flawed that they are unable to attract adherents. To hear many originalists tell it, the fact that, after decades of desperately trying, all of the smart and talented nonoriginalists have failed to come up with “the” alternative to originalism suggests that no such theory is possible. Originalism, they insist, is the only coherent method of constitutional interpretation.

It is not only the rhetorical attraction of originalism, but also its normative force, that to a substantial degree turns on there being one, consistent originalist approach. To its proponents, originalism is not simply the only coherent approach, but also the only legitimate approach. Originalists often assert that the propriety of originalism follows naturally from the very fact that the Constitution is a form of law; originalism, they say, is “almost self-evidently correct” and “so obvious that it should hardly need a name, let alone a defense.” Responding directly to the long-standing problem of the countermajoritarian difficulty—that is, the concern that judicial review allows unelected, unaccountable judges to thwart the will of democratically elected legislatures—originalists further contend that the determinacy provided by reliance on constitutional text, or at least on some objective guidepost for the fixed meaning of the constitutional text, is essential to constraining judges’ ability to impose their own views under the guise of constitutional interpretation.

As a result, originalists insist, originalism is not merely a legitimate method of constitutional interpretation, but rather is the only legitimate interpretive approach, and the only alternative to judicial activism. Prominent originalists have, for some time now, smugly declared that “there is a single, ‘true’ method of constitutional interpretation,” and that “[o]ther approaches to interpretation are simply wrong.”

Critics of originalism have sought to undermine these assertions by questioning the legitimacy of originalism or by seeking to articulate alternative interpretive theories that can lay claim to coherence and legitimacy. But they have for the most part accepted uncritically the characterization of originalism as a coherent, monolithic theory that stands in marked contrast to the mishmash of divergent theories on the nonoriginalist side of the divide.

But this characterization is unfounded. In fact, there is profound internal disagreement among originalists. Originalism is not a single, coherent, unified theory of constitutional interpretation, but rather a smorgasbord of distinct constitutional theories that share little in common except a misleading reliance on a single label. The image of a monolithic theory standing tall and firm, deflecting countless hapless attempts to knock it down, is wrong. The more accurate picture is one of a collection of rapidly evolving theories, constantly reshaping themselves in profound ways in response to devastating critiques, and not infrequently splintering further into multiple, mutually exclusive iterations.

In a relatively short period of time, originalism has evolved dramatically—indeed, so dramatically that the brand of originalism advanced by some of its most prominent defenders today would be virtually unrecognizable to those in originalism’s vanguard in the 1970s and 1980s. More important, contrary to the suggestion of its proponents—for whom there is only originalism and everything else—there are today countless variations of originalism, and the differences among them are sometimes so stark that it is difficult to treat them as one coherent interpretive methodology. The original “jurisprudence of original intention” slowly gave way to one of original meaning, determined by reference to the understanding—held by either the drafters, those who voted in state ratification conventions, or the general public, depending upon whom you asked—of the relevant provision at the time of its adoption. And from there, originalist theory gradually shifted again, to a jurisprudence of objective textual meaning. Today, pressing that theory to its logical extreme, several of the most prominent academic proponents of originalism dismiss not only the original intention of the Framers, but also the actual original understanding of the Framing generation. Instead, they seek to determine how the words of the Constitution “would have been understood by a hypothetical, objective, reasonably well-informed reader of those words and phrases, in context, at the time they were adopted, and within the political and linguistic community in which they were adopted.” In the meantime, other prominent originalists who also claim to rely on original textual meaning have recast the theory in very different terms, as one that boldly empowers the judiciary to protect libertarian or even progressive visions of constitutional liberty. In addition, some originalists insist that stare decisis is fully compatible with originalism; other originalists argue not only that it is not, but also that those who believe that stare decisis is compatible are not really originalists at all. These various current forms of originalism have almost nothing in common with each other, or with the original originalism, except their self-conscious adoption of the same label. Infighting among originalists has reached a fevered pitch, and it is not limited to disagreements about how the theory is properly applied to particular legal questions; rather, it concerns the very nature of the theory itself.

As it turns out, originalists, who have long criticized the notion of a living constitution, have themselves followed a living, evolving approach to constitutional interpretation. Ironically, originalists’ understanding of the relationship among originalism’s current meaning, its original meaning, and its underlying principles is similar to living constitutionalists’ understanding of the relationship among the Constitution’s current meaning, its original meaning, and its underlying principles.

It is not our objective here to criticize originalists for continually refining their approach. Indeed, any rigorous theory must be capable of adaptation in the quest for perfection. But because the rhetorical and normative defenses of originalism—in whatever variation—turn so substantially on the claims that originalism is the only theoretically coherent and legitimate approach to constitutional interpretation, it is notable that it has become virtually impossible today to define what exactly originalism entails. Justice Scalia is perhaps correct when he argues that “it is not very helpful to tell a judge to be a ‘nonoriginalist.’” But the proliferation of competing models of originalism suggests that it is also increasingly unhelpful to tell a judge to be an originalist. The very notion of originalism itself has become indeterminate.

This state of affairs has consequences for originalism’s normative defense. Originalists regularly contend: (1) that their methodology is the only theoretically coherent approach to constitutional interpretation; (2) that, because their approach accords to the Constitution a fixed and determinate meaning based on the document’s text, it is the only legitimate approach to constitutional interpretation; and (3) that their approach is uniquely promising for constraining the ability of judges to impose their own views under the guise of constitutional interpretation. But the diversity in and evolution of originalist thought undermine these three claims. If even originalists cannot agree about what originalism is and what it entails, then how can originalism be uniquely coherent and self-evidently correct? And because different versions of originalism focus on different historical criteria—and, as a result, frequently produce different constitutional meanings—how can originalists maintain that originalism is uniquely determinate, and thus uniquely consistent with law and democracy? Finally, when one recognizes that the diversity of originalist theories allows originalist judges to pick and choose among the various strands of originalism from case to case to reach results that accord with their personal policy preferences, one is left to question the assertion that originalism is uniquely resistant to judicial activism.

In fact, originalists can and often do move from one version of originalism to another as they decide different issues, thus allowing them to reach results that they personally prefer, all the while claiming (and likely mistakenly believing) that they are being guided by nothing more than the external constraint of history. Justice Scalia, for example, has strongly defended the primacy of the constitutional text in interpretation, but he has nevertheless endorsed the Court’s state sovereign immunity decisions on the ground that an unwritten “assumption” of immunity was “implicit in the Eleventh Amendment.” And although in his academic writing he has claimed to reject the original-expected-application approach to originalism—according to which the Constitution must be interpreted to reflect the actual expectations of the Framing generation as to how it would apply to particular practices—Justice Scalia has in practice embraced it. For example, he has argued that capital punishment cannot violate the Eighth Amendment’s prohibition on cruel and unusual punishment because its wide use at the time of the Framing indicates that the Framers did not expect or understand the Eighth Amendment to prohibit it, and he has used the same approach to conclude that certain government-sanctioned displays of religion do not violate the Establishment Clause.

We imagine that many committed originalists would respond by asserting, as has Justice Scalia, that originalism’s normative claims still carry force because, although there are some differences among originalists about their methodology, originalism “by and large represents a coherent approach, or at least an agreed-upon point of departure.” But this grossly understates the level of disagreement among originalists. Originalism does not “by and large” represent a coherent approach. And because the shared principles that can be said to animate all of its various iterations are remarkably broad, it is an “agreed-upon point of departure” only in the way that Chicago’s O’Hare Airport is a point of departure: because there are so many flights on so many airlines to so many different places, you can use it to get virtually anywhere you want to go.

Originalists thus find themselves in something of a bind. They can assert that more than one, or perhaps even all, originalist theories are legitimate. But that assertion undercuts the core normative claims of many originalists that originalism is uniquely consistent with law and democracy and is uniquely capable of constraining judges. One cannot take the position that multiple iterations of originalism are legitimate while simultaneously touting originalism’s unique fidelity to law, democracy, and judicial constraint.

Alternatively, originalists can assert that only one particular brand of originalism—such as original-intent originalism or original, objective-public-meaning textualism or text and principles originalism—is legitimate. But that assertion undercuts both the facile “it-takes-a-theory-to-beat-a-theory” argument—by making clear that originalists cannot agree amongst themselves on constitutional interpretation, either—and the notion that originalism is obviously and self-evidently correct. Finally, one might contend that all (or at least most) iterations of originalism are legitimate, but that true legitimacy requires a judge to choose one version and follow it faithfully. But picking and sticking to one particular originalist methodology appears to be much harder in practice than it is in theory; self-described originalist judges have not done particularly well on this score.

Perhaps our account will aid originalists by informing or reminding them that originalism is a broad tent and that, to gain the professed benefits of an originalist approach, they need to be substantially more disciplined and consistent in distinguishing among originalist theories. But one wonders whether the temptation to drift subconsciously among originalisms to reach desired results will in fact prove to be insurmountable. Perhaps the true lure of originalism lies in its ability to allow a judge to claim the interpretive high ground by purporting to be bound by objective historical meaning, while at the same time giving the judge the wiggle room to reach, whether consciously or not, the results that she desires and demands. If that is so, then much of the originalists’ case for their theory collapses.

Originalism, it turns out, is a loose collection of a staggering array of often inconsistent approaches to constitutional interpretation. And the approaches themselves continue to change and evolve, sometimes too fast for anyone to keep up. Originalists might despise the notion of a living constitution, but they have gone a long way toward creating a living constitutionalism of their own—the very existence of which undermines much of their own rhetorical and normative claims to superiority.

Acknowledgments:

Copyright © Duke Law Journal.

Thomas B. Colby is Associate Professor of Law at George Washington University Law School.
Peter J. Smith is Professor of Law at George Washington University Law School.

This Legal Workshop Editorial is based on the following Article: Thomas Colby & Peter Smith, Living Originalism, 59 DUKE L.J. 239 (2008).

This Editorial has two modest goals.  First, it defines originalism, for we cannot intelligently assess the thesis without a firm grasp of the central term.  Second, it introduces core arguments for originalism and briefly sketches my rejoinders.

 
I.
What Originalism Is

Originalism is today’s dominant theory or account of how the federal judiciary should interpret the United States Constitution.  That does not mean it is widely accepted.  To the contrary, I believe it is more often rejected than embraced.  But it serves as a focal point for contemporary debates over constitutional interpretation to a degree that competing theories cannot boast.  And yet, just what originalism maintains is surprisingly unclear.  While one commentator has bemoaned that “[t]he originalist debate has progressed without a clear statement of the doctrine itself,”¹ another has complained that “[i]f ever a term muddied as much as it clarified, ‘originalism’ is it.”² This lack of clarity is unfortunate, for it invites the possibility that self-professed originalists champion a version of originalism that their critics do not reject, while the critics challenge a version that proponents do not maintain.

Contemporary originalists disagree over many things:  over which feature of the Constitution’s original character demands fidelity (Framers’ intent, ratifiers’ understanding, public meaning, or something else); over why such fidelity is required; over whether this interpretive obligation binds only judges, or whether it binds citizens, legislators, and executive officials too; etc.  But along one dimension—what I call the dimension of strength—originalists are mostly united:  They all believe that those who should follow some aspect of a provision’s original character (judges, at the least) must give that original aspect priority over all other considerations (with a possible exception for judicial precedent that departs from the original meaning).  That is, again putting aside the problem of stare decisis, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it.  This is the central thesis that self-professed originalists maintain and that their critics (the non-originalists) deny.

This is perhaps the single most important fact to understand about the originalism debate today, so I will risk belaboring it.  Non-originalists do not deny that the original public meaning of a constitutional provision, or the meaning that the Framers or the ratifiers intended to entrench, or even the purposes that they aimed to advance, bear on proper judicial constitutional interpretation.  Non-originalists typically accord weight to all these things.  But they accord weight to other considerations too, such as the historical practices of the nonjudicial branches, longstanding cultural understandings, widespread contemporary values, and even the interpreter’s own judgments about justice and workability.  Of course, non-originalists do not all agree on how much interpretive weight each of these other considerations should get (or even which other considerations should get any weight at all).  What distinguishes originalists from non-originalists is that the former affirm, and the latter deny, that the judiciary is obligated to interpret the Constitution in accord with some aspect of its original character.³

Think of “originalism” as capturing a family of actual or possible views about constitutional interpretation, views that vary across several dimensions.  On the dimension of strength, we can distinguish three claims:

(1) Weak Originalism:  Original meaning contributes to constitutional meaning.

(2) Moderate Originalism:  Original meaning contributes substantially to constitutional meaning.

(3) Strong Originalism:  Original meaning contributes decisively to constitutional meaning.

When participants in contemporary interpretive debates discuss originalism simpliciter, or originalism unmodified, they overwhelmingly refer to strong originalism—whether or not qualified by an exception for judicial precedent.⁴ In saying this, I am making an empirical generalization, not asserting a supposed conceptual truth.

Over the years, scholars have criticized originalism on diverse grounds, including that the target of the originalist search is undiscoverable or nonexistent, that originalism is self-refuting because the Framers intended that the Constitution not be interpreted in an originalist vein, and that originalism yields bad outcomes.  I proceed differently.  Instead of mounting arguments for why originalism is not true, I endeavor to catalogue the varied arguments proffered to establish that it is and to evaluate such arguments critically.

Arguments for originalism can be sorted into two broad classes—what I call hard and soft.  Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true.  Originalism is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches.  That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected to already accept, while soft arguments aim to persuade the interlocutor to revise his value judgments or his empirical or predictive assessments.  This is just the first pass at a distinction that might still benefit from further refinement.  But, however the distinction might be best formulated, ultimately the question is whether the arguments for originalism succeed, not what their status or character is.  Still, readers of the originalism literature might find a rough grasp of the distinction useful, for recognizing a particular claim as hard or soft can prime one for the types of counter arguments that will be required.  The distinction is perhaps even more important for proponents of originalism than for critics.  The rhetoric over originalism is often heated.  Those not armed with hard arguments ought not to make hard claims.

 
II.
Assessing Originalism

Arguments for originalism—by which I mean strong originalism—are works in progress.  But three arguments predominate.  Originalism is said:

(1) to follow necessarily from the nature of meaning or of interpretation;

(2) to follow necessarily from the nature of law, or of constitutions, or of the rule of law, or something of this sort; and

(3) to constitute the optimal judicial interpretive stance, all things considered.

The first two arguments are hard; the third is soft.

 
A.     Intentionalism

Most of us believe that federal judges—Supreme Court Justices especially—are engaged in the activity of interpreting the Constitution, understood as the process of deriving or divining law (or “legal meaning”) from constitutional text.  Intentionalism is a theory of interpretation generally, not a theory of constitutional interpretation in particular.  Intentionalists contend that interpretation of any text—a poem, a musical score, a blueprint, a sign, a contract, a statute, a constitution, etc.—is necessarily a search for the author’s intentions.  As explained by Steven Knapp and Walter Benn Michaels, the literary theorists who have championed intentionalism most ardently, “the meaning of a text is simply identical to the author’s intended meaning.”⁵ If this is true, then the meaning of the Constitution is the originally intended meaning, and the job for present-day constitutional interpreters is simply to unearth that originally intended meaning.

But on what grounds should we conclude that intentionalism is true?  First, a favorite intentionalist tactic is to appeal to readers’ pre-theoretical intuitions that, in a range of everyday contexts—from reading a grocery list to ordering off a menu—interpreters ought to search for the author’s intended meaning.  Second, intentionalists insist that meaning cannot simply “inhere” in a text without animating intention.  The supposed fact that a stalactite’s drippings cannot create a meaningful text no matter how much they resemble words in a known language presumably establishes that texts derive their meaning from the author’s intention.  Third, intentionalists argue that intentionalism is required to render the act or practice of interpretation rational.  As Stanley Fish has put it:

For interpretation to be a rational activity and not a form of what H.L.A. Hart calls “scorer’s discretion,” there must be an object prior to and independent of the interpreter’s activities, an object in relation to which you can marshal and assess evidence and measure progress. . . . The only object of interpretation that makes it a rational activity rather than a free-for-all is the intention of the author.⁶

Now, the first argument is inadequate because nobody denies that intended meaning is both a valid form of meaning and the frequently appropriate target of interpretation.  The only thing that non-intentionalism denies is that interpretation must be a search for intended meaning in all interpretive contexts, and with respect to all types of texts—poems, statutes, grocery lists, invitations, instruction manuals, etc.  Non-intentionalism as a general theory of interpretation is no more anti-intentionalism than non-originalism as a theory of constitutional interpretation is anti-originalism.  Accordingly, the intentionalists’ challenge is to explain why we must always interpret all texts solely in accordance with presumed authorial intent. The remaining arguments are designed to address that question, but are not up to the task.

To start, few non-intentionalists contend that meaning simply inheres in shapes or sounds or even in lexical items fashioned around grammatical structures.  Even assuming arguendo that nonhuman artifacts cannot have semantic meaning and, therefore, that the intention of an agent to convey meaning is necessary for the text thereby produced to bear meaning, it does not necessarily follow that the meaning that the text bears must be the meaning that its author intended.  We might say that some authorial intentions (to communicate and to use a particular language, for example) could be preconditions for interpretation (if they are even that), without such intentions necessarily serving as the target of interpretation.

Finally, it is plainly false that, once we untether meaning from authorial intention, a text can mean just anything at all.  Interpretation is everywhere constrained by cultural conventions.  Furthermore, our reasons for interpreting a given text might themselves provide reasons for or against different interpretive targets.  When the reader’s purpose in interpreting a text is to coordinate with the author or to glean information from him, she will rarely have any reason to engage in non-intentionalist interpretation.  But not all communication is designed to effect coordination or convey information.  Constitutions might be designed—and, in any event, might be understood and valued—in part to secure good outcomes within broad constraints.  Thus, the standards that determine whether a given interpretation is true (or more or less plausible) would not be determined by conceptual truths standing apart from our reasons for engaging in the interpretive activity.  Rather, our reasons for engaging in interpretation (understood as activity) would partly determine the standards by which interpretations (understood now as the output of the activity) are measured.

 
B.     Law

Contentions that originalism somehow follows from the very nature of law or from some noncontroversial feature of our law, or of our Constitution, are common but elusive.  Often, they rest on a quasi-Austinian picture of law itself that needs no further discrediting.  Some originalists, however, contend that to treat a constitution as binding or authoritative entails that what we treat as binding is its original meaning.  It is the original meaning of the Constitution that confers upon the Constitution its authoritative character, the fact that we take ourselves to be bound by it.  And this is so, they often say, because our Constitution is written.  But precisely why the writtenness of the Constitution dictates originalist interpretation is hardly obvious.  As Keith Whittington, who has pressed the originalist “argument from authority” with uncommon vigor and sophistication, recognizes, “the nature of the constitutional text can be conceived of as a fixed referent for political debate.”⁷

Theorists who would derive originalism from principles of law sometimes place particular weight on the rule of law, a congeries of values like transparency, stability, and predictability.  The idea is that these values can be respected or realized only through an originalist posture.  But this is again false.  For one thing, these values are sometimes better served by interpreting the Constitution in accord with widespread contemporary beliefs about its meaning or expectations about judicial practice, rather than by appeal to understandings that are centuries old and that require painstaking historical investigation to excavate.  For another, the argument encounters a reductio.  We have never had a resolutely originalist Supreme Court Justice, let alone an originalist Supreme Court.  If the rule of law requires originalism, then it must follow that the United States has never respected the rule of law—a conclusion that few will swallow.  In short, arguments that strong originalism is entailed by the rule of law—or by other core values such as democratic accountability and separation of powers—routinely rely on the erroneous assumption that such values can be realized only fully or not at all.  They fail to appreciate that an interpretive approach, just like any feature of the system of constitutional governance, can satisfy or embody these values to greater or lesser degrees.

 
C.     Pragmatism

If originalism does not follow from the nature of interpretation or from the nature of law, or from basic legal concepts or values to which our constitutional order is committed (such as legal authority or the rule of law), originalism might nonetheless be defended on essentially soft pragmatic grounds as simply the best way to run the railroad.  Indeed, two versions of this argument can be unearthed, what we might think of as act-consequentialist and rule-consequentialist variants.  Both variants recognize a multiplicity of values or ends that constitutional adjudication should serve:  promoting the stability of legal norms and the predictability of judicial decisions, permitting space for contemporary democratic decisionmaking, respecting the intentions and expectations of previous ratifying generations, advancing justice and preventing injustice, ensuring a workable legal system flexible and robust enough to meet the economic and geostrategic needs of a world power in the twenty-first century, etc.

The act-consequentialist pragmatic argument for originalism maintains that, in each individual case of interpretation, these values are optimized by interpreting the constitutional text in accordance with the specified aspect of its original character—say, its original public meaning—either because one of the relevant values or desiderata is lexically prior to all others and is always best served by the originalist interpretation or because, although the ordering of relevant values is nonlexical, it just so happens that an originalist interpretation always optimizes their collective realization.  The rule-consequentialist variant concedes that if the interpretive approach were up for grabs on every individual occasion of interpretation, then non-originalist interpretations would sometimes be optimal.  But it claims that constitutional interpretation must proceed in accord with a clearly articulable rule, and that only originalism can furnish what is needed.

The act-consequentialist variant is implausible once we recall that the debate over originalism presents a choice, not between following the original understanding always or following it never, but between following the original understanding always and following it sometimes.  Because genuine alternatives to strong originalism include interpretive postures that give substantial, albeit not conclusive, weight to original meaning, act-consequentialist arguments are not remotely likely to support strong originalism against all positions that fall within moderate originalism.

Does the rule-consequentialist variant fare better?  Precisely why interpreters of the Constitution should proceed by means of an interpretive rule, and not a standard, is rarely spelled out with specificity.  Although originalists frequently invoke the slogan that “it takes a theory to beat a theory,” this adage cannot by itself explain why judges must follow the (more or less) sharp-edged rule that originalism supplies for selecting among candidates for constitutional meaning.

 
D.     The Noble Lie

The most promising reason to prefer rule-like strong originalism to a more standard-like moderate originalism rests on the perceived inevitability of drift or slippage from the announced interpretive method to the method actually practiced.  Under present practice, interpretive rules are given by judges to themselves; there is no authoritative external promulgator or enforcer of interpretive rules.  Therefore, that originalism produces better consequences on balance than any of its competitors is a reason for judges to embrace it only on the assumption that judges should be guided in their decisionmaking by the goal of realizing best consequences (by whatever metric of value the theorist proposes).  But if so, cases would inevitably arise in which judges were quite confident that departing from the original meaning, on that occasion, would produce better consequences than would following it, even when accounting for whatever marginal negative effect nonconformity with the interpretive rule on the occasion in question might have on future conformity with the rule.  In short, the pragmatic case for originalism runs up against all the usual objections to rule-consequentialism.

This might look like an argument against strong originalism, but it actually amounts to just the opposite.  If strong originalism were the law in the books, the originalist admits that it would reduce in practice to some form of moderate originalism.  But if moderate originalism were the law in the books, the originalist continues, it too would become something even weaker in practice—perhaps mere wish fulfillment, or what Fish and Hart call “scorer’s discretion.”

This final argument for preaching strong originalism even while knowing that it cannot be successfully defended against all forms of non-originalism, then, would be that the theoretically better alternative of a genuine moderate originalism is not practically attainable.  If we want some checking of pure judicial subjectivity, we need to forcefully avow strong originalism—we might even need to avow hard strong originalism—even if we will actually prefer some unacknowledged departures from such strong medicine.

This variant of the Noble Lie is, I think, likely the best argument for strong originalism.  But I doubt it is good enough.  As Justice Scalia himself insists, “the American people are not fools.”⁸ They can see and understand dishonesty.  And judicial dishonesty might be especially likely to have a corrosive effect on public acceptance of the judicial role and a corrupting influence on judges themselves.  Thus, does my originalist colleague Lino Graglia rightly proclaim “that honesty is the best policy, particularly for public officials and even more particularly for judges.”⁹ It is cause for concern, then, how often self-proclaimed originalists abandon originalism to advance what seem to be their political preferences.  As one recent empirical study concluded, “Justices might speak about following an ‘originalist’ jurisprudence, but they only appear to do so when arguments about text and intent coincide with the ideological position that they prefer.”¹⁰ Admittedly, past performance is no guarantee of future results, but it generally is the best single predictor.  Observing that “[o]riginalism is the legal profession’s orthodox mode of justification,” one originalist urges that “the Court should align its practice with its preaching.”¹¹ But the practice is unlikely ever to accord with originalist dogma.  Thus, the originalist’s advice might have things backward:  The virtue of candor would be better served were the Court to align its preaching with its practice.

 
Conclusion

Reasonable people can reasonably disagree regarding the considerations that should shape judicial constitutional interpretation, but I am aware of no theorist who believes that original meaning is irrelevant and few, if any, who would treat original meaning cavalierly.  Originalists are committed to a stronger position:  They contend that judges owe fidelity to original meaning (or intent, or the like) to the exclusion of all other considerations, with a possible exception for judicial precedents that do not themselves follow original meaning.  But the arguments thus far mustered for this demanding thesis are inadequate for the task.  The upshot is not that constitutional interpretation should disregard the Framers’ intentions, ratifiers’ understandings, or original public meanings.  Of course we should care about these things.  But we can take the original character of the Constitution seriously without treating it as dispositive.  That original intents and meanings matter is not enough to render originalism true.

Acknowledgments:

Copyright © 2009 New York University School of Law.

Mitchell N. Berman is Richard Dale Endowed Chair in Law at The University of Texas (Austin) Law School.

This Legal Workshop Editorial is based on the following full-length Article: Mitchell N. Berman, Originalism Is Bunk, 84 N.Y.U. L. REV. 1 (2009).

The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail.¹

Not only does Justice Reed render the Ninth Amendment functionless in constitutional adjudication, he rather carelessly runs it together with the Tenth. 

At the time I began researching the original meaning of the Ninth Amendment in the 1980’s, it was still justly called “The Forgotten Ninth Amendment.”  Then came the nomination of Robert Bork to the Supreme Court and his infamous equation of the Ninth Amendment to an inkblot:

I do not think you can use the [N]inth [A]mendment unless you know something of what it means.  For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.²

This was a shocking statement by someone committed to originalism.  Within months an extensive literature on the Ninth Amendment began to accumulate. 

In his book, The Tempting of America,³ Bork switched his inkblot metaphor to the Privileges or Immunities Clause of the Fourteenth Amendment.  In its place, he adopted Russell Caplan’s thesis that “the rights . . .  retained by the people” referred solely to rights recognized by state law, which could be altered at will by state governments.⁴ Apart from the fact the protection of these rights was never stated as a rationale for the Ninth Amendment, Caplan’s claim was contradicted by extensive evidence that the “rights . . . retained by the people” was a reference to natural rights.  Consider this amendment proposed by Roger Sherman while serving on the House Select Committee formed to draft a bill of rights, which begins: “The people have certain natural rights which are retained by them when they enter into Society. . . .”  After listing some of these rights, it concludes with the following injunction: “Of these rights therefore they Shall not be deprived by the Government of the united States.”⁵

Sherman’s draft explicitly linked the concept of “natural rights” with that of rights “retained” by “[t]he people.” The examples of these rights that follow include the undeniably individual rights of conscience, acquiring property, and of pursuing happiness and safety, freedom of speech, writing and publishing.  Sherman’s identification of these individual natural rights was commonplace.⁶  Another example can be found in the first paragraph of another proposed list of amendments as inscribed in the Senate Legislative Journals on September 8, 1789:  “That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”⁷

Sherman’s draft dramatically shows how those in Congress during the drafting process thought of natural rights.  First, natural rights were individual, personal or private rights, as evidenced by the examples enumerated by Sherman.  Second, at this level of generality, those who enter into social compacts cannot deprive or divest their posterity of these natural rights regardless of the powers they may delegate to government.  They are, in other words, inalienable.

In the 1990s, another Ninth Amendment theory was proposed.  Thomas McAffee claimed that the “rights . . . retained by the people” were simply any right that was left over after the enumeration of powers to the Congress.  What he called the “residual rights” model basically adopted the view of the Supreme Court in United Public Workers v. Mitchell.⁸  According to this model, the rights retained by the people were defined exclusively by examining the powers granted to Congress and added nothing to the analysis of the scope of these powers. 

This theory was largely abandoned after it was pointed out that James Madison, the author of the Ninth Amendment, employed it to limit the powers of Congress under the Necessary and Proper Clause during the Congressional debate over the first national bank.  To support his argument that the power to incorporate a bank, and grant it a monopoly, was beyond those granted to Congress under the Necessary and Proper Clause, Madison observed: “The latitude of interpretation required by the bill is condemned by the rule furnished by the Constitution itself.”⁹  As one authority for this “rule” of interpretation, Madison cited the Ninth Amendment.  “The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for.”¹⁰   Madison then “read several of the articles proposed, remarking particularly on the 11th [the Ninth Amendment] and 12th [the Tenth Amendment], the former, as guarding against a latitude of interpretation; the latter, as excluding every source or power not within the Constitution itself.”¹¹

Madison’s use of the Ninth Amendment to oppose a latitudinarian constructions of federal power comprises a virtual refutation of the residual rights model.  Madison himself used the Ninth Amendment in a manner that is completely outside the only function that McAffee claimed it had.  Nor is Madison’s usage in his bank speech consistent with the state law rights model.  Although the national bank was opposed, in part, as an interference with the power of states to have their own banks, the state law rights model concerns the rights of individuals as protected by state bills of rights or the common law.  In making his Ninth Amendment argument, Madison referred to neither sorts of state law rights.

In recent years, Kurt Lash has become the latest scholar to question the natural rights reading of the Ninth Amendment, though he is careful not to deny that the “rights . . . retained by the people” refers to natural rights.  Instead, he contends that, in addition to individual natural rights, these rights include a collective right of majorities within the states to govern.  Actually, throughout his writings, Lash offers differing formulations of this alleged right, but they all share in common the protection of majorities within the states to regulate or prohibit at will the individual natural rights retained by the people.¹²

Elsewhere I comprehensively evaulate each of the proposed models of the Ninth Amendment in light of all the salient evidence of its original meaning.¹³  In this essay, I confine myself to explaining why it is highly unlikely that the public meaning of the rights retained by the people included a collective right of majorities to rule.

 
I.
The Antimajoritarianism of James Madison

Reading a right of state majoritarian rule into the Ninth Amendment is particularly odd given that this provision was conceived and formulated by one of the more antimajoritarian figures of the day: James Madison.  Indeed, in a variety of fora, Madison consistently expressed his view that popular majorities, especially those at the state level, were the principal threat to “private” or individual rights.  In a letter to Thomas Jefferson in the period between the drafting of the Constitution and the Bill of Rights, Madison explained:

Wherever the real power in a Government lies, there is the danger of oppression.  In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.¹⁴

This concern for the violation of private individual rights by majorities in the state’s was reflected in Madison’s theory of faction.  “By a faction,” he famously wrote in Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”¹⁵

Madison had previously made a similar point to the Constitutional Convention itself in words that foretold his argument in Federalist No. 10. “In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger.”¹⁶  He then applied this insight to the abuses of legislative power in the states:

What has been the source of those unjust laws complained of among ourselves?  Has it not been the real or supposed interest of the major number?  Debtors have defrauded their creditors.  The landed interest has borne hard on the mercantile interest.  The holders of one species of property have thrown disproportion of taxes on the holders of another species.  The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure.¹⁷

Later he observed to the Virginia ratification convention that “on a candid examination of history, we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have, more frequently than any other cause, produced despotism.”¹⁸

From his private letters, to speeches at the Constitutional Convention and the Virginia ratification convention, to The Federalist Papers, Madison consistently and clearly differentiates between, on the one hand, the power of the majority and, on the other, the private rights of individuals, as well as the aggregate interests of the people as a whole.  Yet Lash’s majoritarianism requires him to think that James Madison chose wording for a constitutional amendment the public meaning of which protected a right of a majority in the states to govern over the minority.  That’s a problem.

 
II.
The Antimajoritarianism of the Constitutional Convention

As a skeptic of majoritarianism, Madison was not alone.  Opposition to majoritarian rule, derisively called “democracy” in this period, was repeatedly voiced at the Constitutional Convention. As Elbridge Gerry, deputy from Massachusetts stated: “The evils we experience flow from the excess of democracy.”¹⁹  After listing a number of abuses, he admitted that he “was still however republican, but had been taught by experience the danger of the levilling spirit.”²⁰  “Experience,” he claimed, “had shewn [sic] that the State legislatures drawn immediately from the people did not always possess their confidence.”²¹

Roger Sherman of Connecticut contended that the people “immediately should have as little to do as may be about the Government.”²² Virginian Edmond Randolph observed that “the general object was to provide a cure for the evils under which the U.S. laboured,” the origins of which “every man had found . . . in the turbulence and follies of democracy.”²³ Gouverneur Morris, deputy from Pennsylvania, noted that “[e]very man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty private property & personal safety.”²⁴  The only tepid defense of majoritarianism at the Convention came from Virginia’s George Mason who “admitted that we had been too democratic” in forming state governments but said he “was afraid that we should incautiously run into the opposite extreme.”²⁵

In place of the legislative supremacy incorporated in state constitutions that led to majoritarian factionalism, the founders struggled to devise what they still called a “republican” form of government in which the people would not rule, but would check their agents in government who do by various mechanisms.  Given that the popularly-elected House was designed to be the most democratic branch, the desire by Convention delegates to cabin democratic majoritarianism was revealed most clearly during their discussion of the manner by which the President and, especially, the Senate was to be chosen.  As Edmond Randolph summarized the problem: “The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate.  The object of this 2d branch is to controul the democratic branch of the National Legislature.”²⁶   Gouverneur Morris agreed, observing that the object of the Senate was “to check the precipitation, changeableness, and excesses of”²⁷ the House.  “The use of the Senate,” said Madison, “is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch.”²⁸

Lash would have us believe that, immediately after this counter-majoritarian Constitution was adopted, the Federalist-dominated Congress would propose adding language to the Constitution the public meaning of which protected a constitutional right of majorities to rule in the states, the very sort of right they denied majorities at the national level.  Not very likely.

 
III.
The Antimajoritarianism of the Bill of Rights

Now it may well be true that opponents of the Constitution were more majoritarian than were the framers and the Federalists, and that a bill of rights was promised as a way of mollify their objections.  Primarily, however, a bill of rights was promised and proposed to assuage those in the middle who were moved by the antifederalists’ objection that the Constitution lacked a bill of rights—those who were persuaded to support the Constitution by the Federalists’ promise to adopt a Bill of Rights in the form of amendments after its adoption. 

These amendments were then drafted by antimajoritarian James Madison and approved by an antimajoritarian Federalist-dominated Congress.  Providing express protections of individual rather than states rights would deliver on the Federalists’ promise while avoiding, to the degree possible, undermining their fledgling new national government by the states.  So it is not at all surprising that the Bill of Rights took on a decidedly individualist cast.

Choosing language protecting individual private rights would satisfy the public’s concerns about the absence of a bill of rights, reinforce the national character of “the people” to which the Preamble referred, without threatening the fledgling national government’s power to reign in abusive state governments.  Of course, the fact that a protection of individual rights would protect not only the rights of a minority against abuses by majority factions but also the rights of the majority against abuses by minority factions is a feature rather than a bug of protecting individual rights.

Given the purposes of Madison and the other Federalists in Congress, we would expect the language of the Bill of Rights to be individualist, and it is.  Insofar as it protects the rights of the people, “the people” is used as a mass noun to refer to the plural of persons who constitute the body politic (as distinct from other persons who are not a part of this polity).  It explicitly distinguishes between “the people” and “the states” and, where it protects the rights of states in a federal system, it does not use the terms “the people” or “right” at all; it uses the terms “power” and “states.”

As the Federalists had previously argued, however, the enumeration in the Constitution of some individual rights would be dangerous to other individual rights not enumerated.  Why?  As Madison explained to Congress in his Bill of Rights speech, enumerating certain rights could later be taken as implying “that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.”²⁹ Once some individual rights were being protected, this danger needed to be ameliorated.

Among the numerous amendments recommended by state ratification conventions that Madison consulted in preparing his proposal, none addressed this specific Federalist concern.  All the similarly worded recommendations by the states concerned construing the powers defined in the unamended Constitution; they did not address the problem of construing the rights retained by the people in light of the enumeration of some of these rights that the state ratification conventions were proposing.  

As Madison explained to Congress, the Ninth Amendment was his solution to the Federalist objection to adding any bill of rights to the Constitution.³⁰  This makes the Ninth Amendment sui generis in the Bill of Rights insofar as it was specifically designed by James Madison to respond, not to antifederalist concerns about the absence of a bill of rights, but to Federalist concerns about including one.  For this reason, reading the Ninth Amendment in light of antifederalist concerns or state proposals protecting states rights is a serious error. 

 
IV.
The Original Public Meaning of the Ninth and Tenth Amendments

The original public meaning of “the people” in the Ninth Amendment is illuminated by comparing it with “the people is used elsewhere in the Bill of Rights and the original Constitution.  In the Fourth Amendment, for example:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.³¹

The rights of “the people” to which the Fourth Amendment refers, though possessed by members of a polity, are entirely individual.  Individuals own their own bodies (“their persons), and their own “houses, papers, and effects.

Language matters.  That the language chosen for the Bill of Rights by Madison and the other Federalists in Congress had a decidedly individualist meaning is shown by the reception of the Ninth and Tenth Amendments in the Virginia legislature when it deliberated over whether to ratify these and the other amendments proposed by Congress.  To appreciate the significance of this debate, one must first examine two amendments that had been proposed to Congress by the Virginia ratification convention when it ratified the Constitution:

First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal [sic] Government. . . .

Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress.  But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.³²

There is nothing in these proposals about the rights of the people, collective or otherwise.  They speak entirely in the language of the retained powers, jurisdictions, and rights of states, which is the language one would choose to protect a right of state governance.  Nor is there anything in Virginia’s proposals that deals with the problem for which the Ninth Amendment was Madison’s solution: how to avoid the danger to unenumerated rights when some subset of individual rights are expressly singled out for protection in a bill of rights.  Instead of dealing with the dangers of enumerating rights, these proposals solely concern the problems of limiting federal power and protecting the rights of states.  With respect to these issues, the Virginians said exactly what they meant.

Precisely because the Federalists in Congress proposed amendments with different wording and having a different public meaning, Virginia’s General Assembly initially rejected the Ninth and Tenth Amendments (then the eleventh and twelfth proposed “articles of amendments” respectively).³³  In the Virginia senate, to which the amendments were then referred, a majority bemoaned the Ninth Amendment because it so greatly deviated from their state’s proposals for amendments as to be unrecognizable:

We do not find that the 11th article is asked for by Virginia or any other State; we therefore conceive that the people of Virginia should be consulted with respect to it, even if we did not doubt the propriety of adopting it; but it appears to us to be highly exceptionable.³⁴

That the public meaning of the Ninth Amendment completely differed from the language previously proposed by Virginia is further reflected in this objection: “If it is meant to guard against the extension of the powers of Congress by implication, it is greatly defective, and does by no means comprehend the idea expressed in the 17th article of amendments proposed by Virginia . . . .”³⁵

The Virginians read the Ninth Amendment as referring to individual or personal rights, not collective or majoritarian rights, equating “the rights of the people” with “personal rights”: 

[A]s it respects personal rights, [it] might be dangerous, because, should the rights of the people be invaded or called into question, they might be required to shew by the constitution what rights they have retained; and such as could not from that instrument be proved to be retained by them, they might be denied to possess.³⁶

Sadly, their judgment of the effectiveness of the Ninth Amendment proved to be prescient, and succinctly summarizes how the Amendment has largely failed to achieve its purpose.

Equally inhospitable to a collective rights reading of “the people” in the Ninth Amendment was the Virginia majority’s objection to the wording of the Tenth Amendment (then the twelfth proposed article of amendment).  This they rejected because the words “or to the people” had been added to their proposal thereby changing its meaning to undercut rather than protect states rights:

We conceive that the 12th article would come up to the 1st article of the Virginia amendments, were it not for the words “or to the people.”  It is not declared to be the people of the respective States; but the expression applies to the people generally as citizens of the United States, and leaves it doubtful what powers are reserved to the State Legislatures.³⁷

This objection echoed that of Virginia’s United States Senator, Richard Henry Lee:

By comparing the Senate amendments with [those] from below by carefully attending to the m[atter] the former will appear well calculated to enfeeble [and] produce ambiguity—for instance—Rights res[erved] to the States or the People—The people here is evidently designed fo[r the] People of the United States, not of the Individual States [page torn] the former is the Constitutional idea of the people—We the People &c. . . . [T]his mode of expressing was evidently calculated to give the Residuum to the people of the U. States, which was the Constitutional language, and to deny it to the people of the Indiv. State—At least that it left room for cavil & false construction—They would not insert after people therof—altho it was moved.³⁸

Both of Virginia’s U.S. senators accompanied their joint report to the Governor of Virginia with their denial that the amendments proposed by Congress comported with the Virginia recommendations. “[I]it is with grief that we now send forward propositions inadequate to the purpose of real and substantial Amendments, and so far short of the wishes of our Country,”³⁹ by which they meant Virginia.  “By perusing the Journal of the Senate, your Excellency will see, that we did, in vain, bring to view the Amendments proposed by our Convention, and approved by the Legislature.”⁴⁰

So far as Lee and the majority in the Virginia senate were concerned, the public meaning of “the people” in the Tenth Amendment did not refer to a majoritarian or collective right of the people in the states to govern free of interference of the federal government.  To the contrary, they read it as protecting the powers reserved to the people “as citizens of the United States.”  The very language they desired to protect states rights was, however, eventually incorporated into another constitution.

The Constitution of the Confederate States of America contained two provisions that corresponded to the Ninth and Tenth Amendments but with significant additional language (in italics):

5.  The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people of the several States.

6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people thereof.⁴¹

Had the original public meaning of the Ninth and Tenth Amendments been as collectivist and/or majoritarian as Lash claims, there would have been no need to alter their wording in this way to achieve a state-protective result, especially if Lash is correct about how subsequent courts interpreted the Ninth Amendment in the early Nineteenth Century.⁴²  The Confederate constitution teaches what language would have been required to expressly protect collective or states rights, and it was not the language used in the Ninth and Tenth Amendments.

 
V.
Conclusion

Kurt Lash’s majoritarian vision of the “rights . . . retained by the people” is contrary to the antimajoritarianism of the man who devised the Ninth Amendment, James Madison, those who wrote the Constitution, and those Federalists in Congress who drafted and proposed the Bill of Rights.  Not coincidentally, Lash’s vision is contrary to the individualism of the other amendments constituting the Bill of Rights, and the public meaning of the Ninth Amendment as it was received during its ratification.⁴³  A collectivist interpretation of the “rights . . . retained by the people” is anachronistic—a projection of contemporary majoritarianism onto a text which was and is most naturally read as referring to the natural rights retained by all individuals, and to these rights alone.

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Randy E. Barnett is Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center.

This Editorial is based on the following full-length Article:   Randy E. Barnett, Kurt Lash’s Majoritarian Difficulty, 60 STAN. L. REV. 937 (2008). Click Here for the Full Version