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12/20/2011

Originalism and Sex Discrimination V: Jack Balkin, Original Methods, and Expected Applications
Mike Rappaport

Let me now turn to an interesting aspect of Calabaresi and Rickert’s argument where they employ original methods originalism and Jack Balkin’s criticism of that aspect of their argument. 

In their paper, Calabresi and Rickert say they are employing original methods originalism – the interpretive method that John McGinnis and I have developed.  See here.  Under this method, an interpreter employs the interpretive rules that people at the time of a provision’s enactment would have employed to interpret it.  Calabresi and Rickert argue that one interpretive method at that time was to employ analogy. 

Jack Balkin summarizes their argument:

Calabresi and Rickert agree with McGinnis and Rappaport that we should use the same original interpretive methods that lawyers used in 1868 when the 14th amendment was adopted. The original interpretive methods allowed judges to reason from existing cases by analogy. If we apply these original legal methods today, and do not make the factual mistakes of the framers and adopters, we will see that the case of sex discrimination is analogous to that of race discrimination; therefore the principles against caste and class legislation apply to government action that discriminates against women.

Calabresi and Rickert’s argument here is interesting.  I had not previously thought of the use of analogy as an interpretive method, but upon reflection there is no reason to doubt that it is.  If this method was widely employ at the time, then I would agree it should be employed.  Additionally, if this method was widely employed, it would supply another means for interpreters to resolve ambiguity or vagueness (an important point worthy of discussion in another post sometime).

Balkin criticizes Calabresi and Rickert’s argument.  He writes:

 A similar problem arises when Calabresi and Rickert argue that we should use original interpretive methods to show that sex discrimination was unconstitutional in 1868, citing John McGinnis and Michael Rappaport’s theory of original methods originalism. Calabresi and Rickert argue that reasoning by analogy was a well accepted method used by lawyers in 1868. If we reason by analogy to race discrimination, we see that discrimination against women was also unconstitutional.

But this is not what McGinnis and Rappaport mean by “original interpretive methods.” Their point is that we should ask how lawyers at the time of adoption would have used these methods to decide the most likely interpretation of the text. That is, the legal meaning of the text is the most likely interpretation that lawyers would have settled on at the time of adoption. And if well-trained lawyers would have assumed that the coverture rules were likely constitutional, then that is the legal meaning of the text. What we are not permitted to do is to apply original legal methods today, using our contemporary judgments about values. For if we do that, then we are delegating controversial value choices to contemporary decisionmakers, including contemporary judges. And this is what conservative originalists generally want to avoid.

Drawing analogies today between the Black Codes and laws discriminating against women is not simply a matter of reasoning about similar facts. Arguments from analogy usually involve (or smuggle in) a wide range of normative assumptions. In law things are similar or different in light of particular purposes or normative judgments. So even if we today think that the cases of race and sex discrimination are analogous, that does not mean that most well trained lawyers at the time of adoption would agree with us.

Applying McGinnis and Rappaport’s approach, the most likely interpretation in 1868 would probably be that coverture rules were consistent with the proposed amendment’s legal meaning.

 (emphasis added).  Analyzing Balkin’s argument involves employing an important distinction.  The distinction is between determining the existence of the interpretive rules at the time and applying those rules in particular cases.

Original methods requires that the interpreter employ the interpretive rules as they would have been understood at the time.  But in doing this, original methods does not require that the interpreter automatically apply those rules in particular cases as interpreters at the time would have.  The interpretive rules stand apart from how they would have been employed in particular cases.

Of course, how people at the time would have applied the interpretive rules in particular cases may illuminate how those rules applied in general.  But, in my view, it is only the general interpretive rules that are binding, not the particular applications.  Put differently, it is possible that the people at the time could have made mistakes about how the interpretive rules at the time applied in particular cases.   

But that is not the end of the story.  McGinnis and I also have views about the relevance of expected applications.  Ultimately, the use of expected applications is determined by the original interpretive rules.  Let us assume that there was no interpretive rule at the time that expected applications were binding.  Then, I would argue that the expected applications often provide useful information about the binding aspects of interpretation – for example, about the interpretive rules that would apply in this context and about the meaning of terms.  The expected applications would be evidence of the binding aspects of interpretation, but would not be binding themselves.   

Where, then, does this analysis get us?  Let us assume that there was an interpretive rule to employ analogies.  Then, it would be proper for a modern interpreter to employ that rule.  Now, assume that most people would not have analogized sex discrimination to race discrimination.  Then, a modern interpreter would not be bound by that expected application, but should take it seriously as evidence of the interpretive rules (such as analogy) and of the meaning of the terms (such as equal protection).  One should consider whether the reason the people at the time would not have applied the analogy is that caste was understood as involving hereditary matters not implicating sex distinctions (as I discussed previously) rather than as involving mistaken factual claims about sex based distinctions.  But if the modern interpreter concludes, based on legitimate reasons and adequate evidence, that these other considerations do not prevail and that people at the time simply were making a factual mistake, I don’t believe that original methods would find any problem with their argument.  Thus, if Calabresi and Rickert believe that these other considerations should not prevail, and one accepts their arguments, then original methods would not stand in the way of their argument.