The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first. You’d probably guess it has to do with how we can know what 18th century Americans were thinking. And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was? We can hardly get consensus on such questions in our own time, despite the best efforts of armies of pollsters. And even if we did know what 18th century Americans were thinking, how would that tell us how to decide questions faced by 21st century Americans? So much has changed since then, so does it even matter what the Constitution originally meant?
Those are tough questions, but they’re not what is confusing about Originalism. What’s confusing is that most people don’t understand whose understanding we care about in fixing the meaning of the Constitution. The people responsible for drafting the document? The delegates who actually ratified it? Or the American people in whose name they drafted and ratified?
I submit that confusion about this preliminary who question makes one more likely to conclude that the other problems—determining and applying the original meaning—are just too difficult and thus the Originalist project not worthwhile. On the other hand, once we get the right answer to the who question, I submit that the importance of the Originalist project becomes clearer. And while determining and applying original meaning is still difficult, it is central to the American experiment in self-government that we try.
The who question is easy to get wrong because we so often defer to founders like James Madison who drafted the Constitution. It is natural to assume that the words meant what its writers intended. But thinking a little deeper, it should be clear this is incorrect. It was widely understood—including by Madison, by the way—that the American people were sovereign. Though Madison and the other framers wordsmithed the Constitution, they did so on the sovereign people’s behalf. This is also what happens when lawyers draft a contract on behalf of their clients. The lawyer’s meaning doesn’t count—only the parties. Why? Because the document concerns the rights and obligations of the parties, not the lawyers. The lawyers are just their scribes.
In the same way, it is the people’s understanding that controls the meaning of the Constitution, because the Constitution is authorized by the people’s authority and concerns the people’s rights. The framers were just their scribes.
This, by the way, is the brand of Originalism known as original public meaning. When I refer to Originalism, I mean specifically original public meaning, which I take to be the only correct variant.
Before asking your further indulgence in this exercise, let me briefly put Originalism in context with that other famous approach to constitutional law, Living Constitutionalism. Originalism presumes a fixed meaning in the Constitution. Living Constitutionalism, on the other hand, rejects the presumption that a fixed meaning exists or controls, and instead holds that its words take on new and different meanings to adapt to modern contexts and facilitate human progress.
In this contest, Originalism’s distinct advantage is this: If the Constitution fails to reflect the meaning of the American people in whose name it was written, negotiated, and ratified, then the Constitution is no longer an act of self-government. You would not expect to be bound by such a constitution any more than you would expect to be bound by a clever lawyer’s contractual interpretation that you never reasonably could have imagined. In other words, self-government absolutely depends on presuming a fixed meaning in the Constitution in order to give effect to the people’s will.
Let’s assume for now that you’re with me on Originalism. We still have to grapple with the “how do we know their meaning” and “how do we apply it” questions. But since at this point you’ve signed on to my theory, you can’t simply call these questions too difficult and Originalism doomed. You’d be admitting the defeat of self-government. You’re not admitting that, are you?
Besides, it doesn’t make any sense to conclude that difficulty in determining or applying the Constitution’s original public meaning suggests the exercise is somehow unimportant. When has difficulty ever undermined importance? Quite the opposite. Ending slavery was both extremely difficult and extremely important. So was D-Day. So were Civil Rights. Nothing was ever drained of its importance by difficulty.
So the Constitution’s original public meaning does not become unimportant just because it is difficult to ascertain its precise meaning or apply it to contemporary problems. But if we can’t determine or apply its meaning, then isn’t the self-government project doomed just as if we rejected Originalism outright?
To this, I respond that determining and applying Originalism does not require that we know with precision or certainty how 18th century Americans would have voted on specific legislation. We don’t even know today how a vote on anything is going to come out until it actually happens. But the 18th century was not a dark age, and there is much evidence of the mood of Americans as to a great number of important subjects that informed their understanding of the Constitution.
Take the National Day of Prayer, about which Mr. Likko recently wrote. True, we cannot tell how a vote on such an act would have come out in 1791 when the original public meaning of “establishment of religion” presumably was never fresher in mind. But we do have an understanding of how Americans generally understood the role of religion and government. For example, the Constitution of Massachusetts in 1780 provided that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of GOD, and of public instructions in piety, religion and morality.” The Northwest Ordinance of 1789 provided that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” And if the views of John Adams can be said to harmonize with the public’s, “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.” We should at least be skeptical, then, at suggestions that the Constitution requires that we approach or resolve a question today in a manner that probably would have seemed very odd then.
In other words, approaching a question like a national day or prayer with considerations about whether it falls within Congress’s enumerated powers, whether it violates its role vis-à-vis the states, freedom of conscience, etc., seems to be in line with concerns felt by 18th century Americans. Approaching it with considerations about categorically keeping anything smacking of religion out of government, on the other hand, is probably pouring new wine into old skins.
But again, certainty and precision are not the touchstone. In our attempt to glean the original public meaning of a constitution, we are looking at how the people understood the structure of government and the role of man, society, and government. Beyond that, Originalism does not require or suggest that we precisely determine or apply 18th century Americans’ reaction to specific policy proposals.
Instead, what Originalism requires is that we at least pay homage to why the Constitution mattered, what it set out to do—indeed, why it exists at all. I see much room for discussion in how we answer such questions. But I find misguided Originalism’s detractors who object that those things are unimportant, that we have better things to do than worry about what the people intended by ratifying the Constitution; better things such as finding new meanings for those words. Justice Sutherland once wrote that “to say … that the words of the Constitution mean today what they did not mean when written—that is, that they do not apply to a situation now to which they would have applied then—is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise.”
The good justice was right. The people are no longer sovereign if we cease to interpret their laws. To reject the original public meaning is to remove the people from the seat of sovereign power and install Webster in their place.
[Updated to correct an error pointed out by Mr. Corneille.]